A guide to the Court System and Children's Law
The state system
In NSW the court system consists of
* The Supreme Court
* The District Court
* Local Magistrates Court
The Children's Court and the Children's Criminal Court are specialised Local Magistrates Courts.
The legislation that covers the Children's Care Court is the Children and Young Persons (Care and Protection) Act 1998. This Act sets out the power of the Court and the way in which the court proceedings will be conducted. See www.austlii.edu.au
In NSW the Children's Court is a closed court. This means that the public are not admitted as observers to Children's Court proceedings.
In country areas the Local Magistrates Court deals with routine Children's Court matters. There is a Children's Court specialist magistrates circuit that hears substantive cases, establishment applications and final hearings.
Adoptions Act 2000 is the legislation that sets out the legal process for adoptions. All adoptions have to be approved by the Supreme Court. The Supreme Court has the power to dispense with parental consent to adoption.
Once a matter has been finalized in the Children's Court the decision can be appealed to the District Court if any party is dissatisfied with the decision. There is a filing fee that has to be paid by the party initiating the appeal.
Cases do not go directly on appeal from the Children's Court to the Supreme Court. Only cases involving a matter of law go to the Supreme Court in specific circumstances.
The exception to this is where the President of the Children's Court who is a District Court judge has adjudicated a matter in the Children's Court. This appeal is then heard in the Supreme Court.
An appeal against a decision of the NSW Supreme Court is heard by the Supreme Court Court of Appeal in civil matters.
Any further appeal is to the High Court and special leave is needed to take a matter to the High Court of Australia.
There is a filing fee for all Supreme Court matters.
Review of administrative decisions
The NSW Administrative Decisions Tribunal under the Administrative Tribunal Act 1997 can review cases and make a stay order involving children in the care of the Minister for Family and Community Services, as well as those made by non-government agencies that are accredited as out-of-home care providers by the NSW Commission for Children and Young People. See www.adt.lawlink.nsw.gov.au and www.kids.nsw.gov.au
The Administrative Decision Tribunal does not have a filing fee.
The federal system
At the federal level the family law court system consists of
* Family Law Court
* Family Circuit Court
Both the Family Court and the Family Circuit Court deal with family law matter under the Family Law Act 1975. Matters in the Family Court or in cases heard in the Family Circuit Court in which there is information about a suspected case of child abuse or neglect will be referred by the court to the NSW Department of Family and Community Services for investigation.
In some instances Family and Community Services become a party to the Family Court of Family Circuit Court case. For example, in Magellan list cases dealing with allegations of sexual abuse. See www.familycourt.gov.au In other matters Family and Community Services may undertake action in the NSW Children's Court. Children's Court decisions over-ride Family Court of Family Circuit Court decisions in relation to parenting orders.
Filing fees apply in all Family Court and Family Circuit Court matters.
Appeals against a Family Circuit Court decision are heard by one judge of the Family Court. Appeals against a decision of the Family Court are heard by three judges of the Family Court.
Rules of evidence
These rules are set out in the NSW Evidence Act 1995.
There are two distinct standards of evidential proof.
* Beyond reasonable doubt
* On the balance of probability
The 'beyond reasonable doubt' standard of proof is required in the criminal jurisdiction. n the NSW Children's Court care jurisdiction the rules of evidence do not apply (see NSW Children and Young Persons (Care and Protection) Act 1998 section 98 (3), (4) and (5) and the standard of proof is the lesser on a 'balance of probability'.
1. What parents need to know about the Family and Community Services 'Helpline". New
2. Restrictions on who may provide or arrange voluntary or temporary out-of-home care for children. New
3. How to deal with Family and Community Services, Community Services division (formerly DoCS now FaCS). Twelve suggestions.
4. What parents need to know if the FaCS agency has previously removed a child from their care.
5. Changes to Legal Aid.
6. Developments in adoption legislation and changes in the Family and Community Services, Community Services division practice.
7. Tips for completing application forms.
8. A guide for parents: Understanding the Children's Court process.
9. Finding a lawyer.
Scroll down to find the leaflet you want.
advice leaflet 1
What parents need to know about the Family and Community Services, Community Services division "Helpline".
Anyone can call the "Helpline" and report a suspected case of child abuse and neglect.
This includes relatives, friends or neighbours or just anyone passing by your family home.
You will not know who the caller was as their identity is protected by law and cannot be disclosed.
Health personnel (doctors and nurses), teachers, social workers and other counselling and welfare sector workers are mandatory reporters and are required by law to report suspected cases of child abuse and neglect. Their identity is also protected by law and cannot be disclosed.
If you are reported to the 'Helpline" Family and Community Services, Community Services division caseworkers may come to your family home to investigate the suspected case of child abuse and neglect. They have a legal right to enter your family home and they will call the police to help them if necessary.
Sometimes parents call the "Helpline' to seek support services to help them with the parenting of their children. Parents who may be considering calling the 'Helpline" should know that the help they think they need may not be provided. Instead a call to the "Helpline" may trigger an investigation by Family and Community Services caseworkers into possible child abuse and neglect.
The type of things that can lead Family and Community Services, Community Services division caseworkers to substantiate a case of child abuse and neglect include the following items, often in combination.
A report of non accidental injury to a child (i.e. shaken baby, broken or badly bruised limb)
A failure to seek medical treatment for a sick or injured child
A child's delayed speech or physical development
A report of a child being hit (i.e with a hand or other object such as a stick)
An unkept household (i.e. dirty kitchen and bathroom, general lack of hygiene, piles of unwashed clothes)
No edible food in the house
Children saying they are hungry
Inappropriate sleeping arrangement for a child (i.e. a young child sleeping with a parent, inadequate bedding)
A home with aggressive pets (especially large dogs)
Leaving children unsupervised and alone at home
An unfenced garden and broken gates that allows a child to wander outside the family home
Not using child restraints when driving a car
Non attendance of children at school
Children arriving at school, ill dressed, dirty, and ill feed and without lunch
Children displaying sexualised behaviour (knowing too much about sex given their age)
Parental drug and alcohol misuse
Domestic violence (i.e. shouting abuse, screaming, hitting)
Parental behaviour that suggests mental health issues
The test Family and Community Services, Community Services division caseworkers use to substantiate a case of child abuse and neglect is whether any of the above places your child a 'risk of significant harm'.
If you are concerned about being investigated for suspected child abuse and neglect use this list and check that none of the above conditions apply to your family home. If some of these conditions do apply make the effort to change them immediately.
Acting in this way will prevent Family and Community Services, Community Services division caseworkers from having a reason to investigate your family situation. An investigation can result in the immediate removal of your children. You need to act now to prevent this from happening.
advice leaflet 2
Restrictions on who may provide or arrange voluntary or temporary out-of-home care for children
Various sections of the Children and Young Persons (Care and Protection) Act 1998 restrict who can provide out-of-home care (sections 135-141) and the making of temporary care arrangements (section 151-154) for a child. Recent amendments to the Act that were passed by the NSW Parliament in November 2010 have further restricted who can provide temporary care.
In effect the amendments mean that any parent who asks a distant relative, friend or neighbour to provide care for a child for a number of days will now be unable to do so. All periods of care for a child now have to be provided by a relevant and authorised agency.
The policy of Community Services is not to approve the private placing of a child with relatives, friends or neighbours, even if you think this is in your child's "best interests". The only time Family and Community Services, Community Services division may accept the placement of your child with grandparents or a close relatives i.e brother or sister is if this placement is in a Care Plan that is part of a Children's or Family Court order.
Lessons from practice
Sometimes parents ask Family and Community Services, Community Service division to provide them with respite care for their children, say for two weeks. If Community Services agrees to this they will ask the parents to sign a voluntary care agreement. When parents sign a voluntary care agreement they may assume that at the end of the respite period that the children will automatically be returned to them. This is not always the case.
Family and Community Services, or an authorised agency, may use the respite period to investigate whether or not your children are at 'risk of significant harm' if they are returned after the respite period to their parents. If on investigation Family and Community Services, Community Services division caseworkers decide that the children are at 'risk of significant harm' they may immediately assume care of the children and file an application in the Children's Court for an Emergency Care and Protection Order (ECPO).
It is important for parents who are thinking about asking for a period of respite care to understand that this is not a straightforward decision. Asking Family and Community Services, Community Services or an authorised agency for respite care may result in unintended consequences such as the removal of a child from parental care.
Parents should be careful about asking for respite care.
advice leaflet 3
How to deal with the Family and Community Services, Community Services division (formerly DoCS now FaCS). Twelve suggestions.
1. Remember once FaCS is involved in your life nothing about your life, or that of your partner, is private or confidential.
FaCS has the power to subpoena your police and health records and ask other agencies or individuals such as counsellors, to provide information about you. You have no power to stop this from happening.
2. Remember for FaCS child protection is a forensic, investigative and prosecutorial process.
Anything you say or do is liable to be used to support the FaCS's case that your children are in need of care and protection and should be placed in the care of the Minister, usually until they reach the age of 18 years.
3. Never shout at, insult or threaten an agency caseworker.
If you do it will be seen as evidence of your non-cooperation and this will go against you. It may even appear in a caseworker's report to the Children's Court.
4. Always provide all the information that FaCS may request.
If you are found to have withheld information this will go against you. You will be viewed as unreliable.
5. Do not lie to the agency caseworker or in the Children's Court.
The lie is always found out and then it goes against you. You will be viewed as unreliable and untrustworthy.
6. Consult a lawyer immediately you are involved with the agency and before an Emergency Care and Protection order is made (usually within 72 hours of a child's removal).
Be truthful with the lawyer. A lawyer cannot assist you if he/she does not have the full story.
7. When attending the Children's Court it is vital that you arrive on time and be polite to everyone including agency personnel. Dress as smartly as possible.
If you are late, make a noisy scene or look scruffy this will go against you as you will have created a poor image of yourself.
8. When visiting your children for contact purposes never discuss the court case with them.
If you do this it will be seen as inappropriate behaviour and it will go against you. It can even lead to the suspension of contact visits. FaCS has the power to do this. Do what ever the agency ask you to do in relation to contact with your children. Never miss a visit with your children.
9. If there are grandparents who might be able to care for your children they may need a lawyer and apply to the Children's Court to be in the case.
This is called being made a party to the case. It is an important signal to the Court that they care about your children.
10. Never sign any papers that an Community Services division caseworker asks you to sign.
Any such requests should firstly be discussed with your lawyer. Tell FaCS caseworkers that your lawyer has asked you not to sign anything.
11. Ask for a numbered and written list of the actions you must take for the fhe Community Services division to consider restoring your child (if a child has been removed) and do all of them immediately.
Any delay will work against you. For example you may need to clean your house and stop using drugs or get an apprehended violence order against someone close to you.
12. Go to every Court date unless your lawyer tells you not to attend.
Not attending Court will create the impression that you are unreliable and do not care about your child.
advice leaflet 4
What parents need to know if FaCS, Community Services division has previously removed a child from their care.
1. Deciding to have another child after the removal of a child from your care is a major decision. If a mother becomes pregnant it is advisable for both parents to consult a social worker at a pre-natal clinic about the situation and see if there can be discussions with the FaCS to prevent the removal of the new child.
2. FaCS has the power to remove other children from parents who have previously had a child removed and in some cases they do this shortly after the birth of the new child.
Section 106A of the Children and Young Persons (Care and Protection) Act 1998 allows the CS to remove babies from parents who have had previous children removed.
3. The FaCS sometimes remove a child from a mother while the mother is still in hospital following the birth of a child
This is an immensely distressing experience for both parents.
4. FaCS may remove a child, even if you have a new partner and the new partner has no previous history with the FaCS. This applies to both male and female partners as the FaCS can remove a child from a mother with no previous FaCS history but where the father does have such a history, and the reverse.
Your new partner needs to know about your FaCS history if you plan together to have a child.
5. How will the Community Services division know you are pregnant and how will they know when you have given birth?
There is an agreement between the Health Department and the FaCS which means that hospital staff (especially pre-natal clinic staff) report your pregnancy to FaCS if they suspect that you have had a child removed from your care or, if they have concerns about your ability to look after a new child. Hospital personnel are 'mandatory reporters' and are legally compelled to report to the FaCS 'serious risk of harm' situations.
6. What happens then?
An 'alert' notice is placed on your medical file. This requires medical staff to report the birth of your child to the Community Services division so that they can remove your child from you, if necessary.
7. Our understanding is that the instruction to hospital staff from FaCS is that hospital staff must not tell parents that there is an alert notice on the mother's medical file. Hospital staff sometimes ignore this instruction.
An expectant mother should not avoid pre-natal care. To do so will be seen as evidence that the mother is not caring for her unborn child. This is not the message a parent wants to send.
8. FaCS caseworkers and Health personnel hold meetings about the potential risk of harm to unborn babies. If FaCS caseworkers and hospital personnel agree that a baby should be taken into care immediately following birth they will not necessarily tell the mother about the plan to remove the baby.
As a patient the mother is legally entitled to read her medical file and any other hospital file. Make a request to see your file. This is one way you can learn about the existence of an 'alert' notice.
9. In NSW there is an increase in the number of babies that are being removed from their mother soon after the baby is born. This is an immensely distressing experience for both the mother and father of the child.
Avoid this distress
10. In November 2008 the NSW parliament passed amendments to the Adoption Act. These amendments will allow foster carers who have looked after a child for 2 years to go to the Supreme Court to adopt the child. The Court can dispense with the parent's consent. The Court can also allow the child's surname to be changed to that of the adoptive parents.
This is what might happen to a child removed from parental care by FaCS. The Minster responsible for Docs (Now FaCS) Linda Barney, introduced this legislation into the NSW Legislative Assembly in September 2008.
11. Seek legal advice immediatelly should you become pregnant if you have a had other children removed from your care.
Section 106A of the Children's and Young Persons (Care and Protection) Act 1998 places responsibility on parents to prove that they are capable of providing 'good care' for a new child. To retain custody of a new child parents must prove to the Children's Court that they will on this occasion be 'good parents'. If the parents do not prove this the Children's Court may give parental responsibility for the child to the Minister for Family and Community Services, invariably until the age of 18 years. If this order is made the FaCS will place your child initially in foster care but at a later date a plan may be made for the baby to be adopted, without your consent.
advice leaflet 5
Changes to Legal Aid
In February 2012 Legal Aid NSW amended their policy to remove the Merit Test for care and protection proceedings in the Children's Court where the legal aid applicant is a person who has parental responsibilty for a child or young person or has had an aspect of parental responsibility removed by a court order.
However, before funding a grant for a final hearing Legal Aid NSW must be satisfied that the legally assisted person has reasonable prospects of achieving a better outcome than that which is in the care plan.
(Legal Aid NSW policy bulletin no. 2/12)
Implications for parents
The implication of this change of policy seems to be that parents with a Legal Aid grant and representation through the early stages of the court proceedings will loose their representation before a final hearing.
Unless parents have private means and can hire a lawyer they may be unrepresented at the hearing.
Parents without legal represention will be able to sit at the Bar table and represent themselves but they will be severally disadvantaged as they are likely to be unfamilair with the Children and Young Persons (Care and Protection) Act 1998 as well as being unfamiliar with the working of the Children's Court and the rules that govern the proceedings of the Court.
The FaCS will always be represented by a lawyer.
The children will also be represented by a lawyer supported by a Legal Aid grant.
What can parents themselves do if legal aid is refused?
Parents can appeal to the Legal Aid Commission against a decision to refuse legal aid but an appeal may not be dealt with quickly. During this time the Children's Court proceedings will continue.
Section 90 Rescession or variation of care orders
Legal Aid is refusing to fund most s90 applications. This is the section of the Children and Young Persons (Care and Protection) Act 1998 where parents can make an application for a re-hearing of their case on the grounds that there have been 'significant change in relevant circumstances' since the original order was made. This application can be refused or granted. In essence a merit test is applied to determine the outcome of the application. The Legal Aid Commission's refusal to support an s90 application means that prents will have to represent themselves, unless a lawyer is prepared to provide services on a pro-bono basis. In representing themselves parents will be severely disadvantaged.
Recent research has shown that where the FaCS opposes the parents s90 apllication that parents are rarely successful in their application for rescission or variation of a care order.
advice leaflet 6
Developments in adoption legislation and changes in Family and Community Services practice.
In November 2008 the NSW Parliament passed an Adoption Amendment Bill. This Bill inserted into the NSW Adoption Act 2000 at section 67 a new clause (d).
Before the amendment , section 67 of the Adoption Act 2000 read as follows.
67. When can Court dispense with consent of persons other than child? (1) (a) - (d) (i) - (iii) ...
Then clause (67 (1) (c) was altered by omitting 'the parent or guardian' and inserting instead 'the parent or person who has parental responsibility for'. More importantly, clause (d) was inserted into section 67 and is as follows:
(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers of the child;
(i) the child has established a stable relationship with those carers, and
(ii) the adoption of the child by those cares will promote the child's welfare.
(iii) in the case of an Aboriginal child, alternative to placement for adoption have been considered in accordance with s36.
What was unclear when this legislation was passed was what the phrase 'has established a stable relationship' would mean in practice. Since that time it has become clear that FaCS have defined the period as two years.
The implication for parents of children in care
The implication is that a foster carer who has cared for a child for two years is now able to apply to the Supreme Court to adopt the child. Importantly, the court has the power to approve an application against the wishes of the child's parents. A surname change to that of the adoptive parents can also approved by the court against the wishes of the birth parents.
Developments in FaCS Care Plans
It is becoming routine practice to insert into a Care Plan an indication that FaCS will or may consider at some time in the future adoption. The Care Plan is a document for the Children's Court filed before final orders are made.
This is particularly true where the child has been removed at birth from a mother under section 106A of the Children and Young Persons (Care and Protection) Act 1998.
In that respect it is clear that the FaCS will support an application from a foster carer, if they seek to adopt a foster child. FaCS see this as providing the child with long term security and as preferable to long term foster care. FaCS also knows that it is much easier to find adoptive parents for babies and very young children, than it is for older children.
For birth parents this means that if they are unable to resolve the issues that caused their child to be removed fron their care in under two years they may lose their child permanently to adoption.
Parents have no time to lose if this outcome is to be avoided.
advice leaflet 7
Tips about completing application forms
Parents of children in the care of the Family and Community Services, Community Services division (formerly DoCS) sometimes need to write a letter to the FaCS, or complete application forms, as part of their efforts to get more favourable contact with their children or to explore the potential for restoration of their children.
FIN-NSW is aware that parents who have no legal representation are themselves completing an application for Legal Aid. There is also an awareness that parents who make an application for Legal Aid without the help of a lawyer are disadvantaged and often fail to meet the recently introduced Legal Aid care case 'merit test'. As a result they are unable to employ a lawyer to pursue matters further.
Sometimes the merit test is failed because the argument that is used in support of the application for Legal Aid is not well put. As a result this advice leaflet focuses on how to put together an argument to support an application for Legal Aid. In that respect this leaflet is about writing down and presenting the key issues in an orderly manner. FIN-NSW is not offering legal advice.
Parents sometimes want a Legal Aid grant so they can employ a lawyer to file a section 90 application in the Children's Court for rescission or variation of a care order.
In order to get a Legal Aid grant for this purpose parents must be able to show Legal Aid that a 'benefit or otherwise, will accrue to the applicant (the parent) as a result of the granting of Legal Aid'.
The information put forward in support of a Legal Aid application is in many ways a rehearsal of the argument that has to be put to a Magistrate when a section 90 application is being heard.
In a section 90 case the Magistrate has to be satisfied that there has been 'a significant change in any relevant circumstances' since the original care order was made. In other words the case has to have merit.
The question is how do you establish merit for Legal Aid and eventually for a Magistrate? This is where the careful listing of the facts and the orderly presentation of the issues is vital. You follow a similar process if you are preparing an affidavit.
Writing down the facts
1 . Carefully examine all the original Court papers.
2. Identify and list all matters that were in the Court papers and that were said to be reasons why your child was 'at sihnificant risk of harm' i.e. drug or alcohol abuse, unhygenic and dirty house, convicted paedophile as a lodger, no parental awareness of the developmental needs of a growing child, child arriving at school hungry and dishevelled.
3. Then list these matters in their order of importance. That is the most important issues at the top of the list with the less important items at the end of the list.
Orderly presentation of the issues to support your application
4. Take each item that is on the list of facts and show how you have addressed and fully resolved this issue. Provide supporting evidence of your actions, if possible. Give precise dates of counselling, therapy, education and training programs.
Essentially, what you have to do is present evidence to the Court to show that you are a changed person who is now fully responsible for themselves and ready to be' fully' responsible for your child. Build the evidence, build the image.
5. If drug or alcohol use was an issue you will need to provide at least 6 months of clean urine analysis results.
6. If you now have a job and are no longer on Centrelink payments say so and give details of your job, work hours and income.
7. If domestic violence was involved show that you now have an AVO out against the perpetrator and that you no longer have any contact with that person. That means an absolute embargo on contact including telephone calls, occasional contact while out shopping, at a relative's house or at a birthday or holiday times.
8. If you have attended any training courses i.e. anger management, parenting or anxiety management provide details and any attendance certificates with dates of the courses.
9. If you have changed your address give details, together with your rental records to show that you have stable accommodation.
Benefit to your child and you of a successful section 90 application
This is a very important section of a Legal Aid application. Essentially, you have to show that your child will benefit by additional contact with yourself or by being restored to your care, dependent upon the kind of section 90 application you intend to make.
Make the following or similar points, if they are true.
10. That you will love and nuture your child and she/he will not be 'at risk of harm' from you when on an extended contact visit with you or in your full time care.
11. Emphasize the importance of the extended family and culture to your child as well as yourself and things such as religion if this is an important part of your life.
12. Make it clear that the benefit to yourself, as the parent, is that you want to be able to make a positive contribution to your child's life and be with him/her as he/she grows up.
13. Identify how you want your child to be a valued, loving, respectable, law abiding, hard working future citizen.
14. Remember you can file a section 90 application yourself. You do not have to have a lawyer. If you represent yourself you will be able to sit at the Bar table with the lawyers in the case. You have a right to argue your case yourself. To do this is very hard and should only be considered as a last resort. But it can done.
15. Finally, remember to always be moderate in the way you write or express yourself. Do not be loud, rude or angry. To do so will harm your case.
Forms must be kept clean and be neatly completed. How you present these forms helps to create your image as a responsible person.
advice leaflet 8
A guide for parents: Understanding the Children's Court process
1. If a child is removed from parental care by the Department of Family and Community Services, Community Services division then the division must make prompt application to the NSW Children's Court for an Emergency Care and Protection Order (ECPO).
2. This application has to be made at the first available opportunity, but no later 3 woking days of the Children's Court.
3. If a child is removed from parental care the parents need to go to Legal Aid immediately and make an application for a Legal Aid grant.
Two tests apply when seeking a Legal Aid grant the first is the 'financial test' and the second is a 'merit test'. Parents on Centrelink benefits and who do not have private resources normally pass the financial test. Parents are also likely to pass the merit test for this stage of the proceedings.
If parents pass the two tests Legal Aid may immediately allocate a Legal Aid lawyer who will act for them in court.
3. Alternatively, parents may be able to use the Children's Court duty lawyer on the day of the ECPO application. This may be a Legal Aid lawyer or a private lawyer who is a member of the Children's Court duty roster.
4. If the duty lawyer is a private lawyer they may be able to represent the parents in Court. Under these circumstances the lawyer will ask the parents to fill out a Legal Aid application and the lawyer will submit it on the parents behalf to Legal Aid in order to get a grant to cover the cost of his/her fees.
5. If parents has significant private resources they will fail the Legal Aid financial test and they will need to hire a private lawyer and pay the lawyer to act for them.
6. It is unwise for parents to go to the Children's Court without legal representation. Parents can do this and act on their own behalf. This is likely to disadvantage them as they are unlikely to be familiar with Children's Court proceedings and the Chidren and Young Persons (Care and Protection) Act 1998.
7. When possible it is advisable to use the services of a lawyer who is a NSW Law Society accredited Children's Law specialist. This is because children's law specialists are familiar with the working of the Department of the Department of Family and Community Services the Children's Court and the Children and Young Persons (Care and Protection) Act 1998. A generalist lawyer may not have this knowledge.
8. When parents obtain the services of a lawyer it is advisable for them to listen to her/his advice. But it is also worth remembering that a lawyer has to act on the parents instructions. If the parents do not think the lawyer is acting in keeping with their instructions they can dismiss her/him. This is a radical step not to be taken lightly and probably not before the parents have secured the services of a new lawyer.
9. Should your instructions be considered unworkable in the lawyer's view they can withdraw from the case. Under these circumstances the lawyer has to inform the Children's Court that they are no longer acting on the parent's behalf. In addition, if a lawyer withdraws from a case or is dismissed they are obligated to hand over to the new lawyer all the case papers.
10. Once an application for an ECPO has been made to the Children's Court the Court will appoint a lawyer for the child. This happens in two ways.
A child under the age of 12 years is presumed to be incapable of giving instruction to a lawyer. Under these circumstances a lawyer will use her/his judgement as to what is in the child's 'best interests'.
A child over the age of 12 years, in comparison, is presumed to be capable of giving proper instructions. Under these circumstances the lawyer has to present to the Children's Court the child 's view as to what is in their 'best interests'.
11. To support the application for an ECPO the Department caseworker will have written an affidavit/report which outlines the circumstances that the Department think constitute a 'serious risk of harm' to your child.
12. At the same time as an application is made for an ECPO the parent's lawyer can file an affidavit on the parents behalf in which the parents say why the Department's view is incorrect. What the parents are doing when they do this is disputing what the caseworker has said in her/his affidavit/report.
13. At the point of application for an ECPO parents are often asked to consent to the establishment of the case and to acknowledge that there are grounds for the legal proceedings Parents can instruct a lawyer not to consent on their behalf and and to argue against the establishment of the case. A Children's Court Magistrate may on the basis of the evidence provided by the Department of Family and Community Services, Community Services division still allow the case to be established.
14. If for the case is established the Magistrate will issue an 'Interim Care Order' (ICO). A date will also be set for the case to be 'mentioned' often before a Registrar rather than a Magistrate. This is so that the Children's Court can track the progress of the case. There may be more than one mention across a number of weeks.
15. If an ICO is made the lawyer should also ask the Magistrate to make a Contact Order (CO). A CO specifies how often and for how long the parents can see their child each week while the court case is proceeding. Without an order contact between the parents and child will be at the discretion of the Department of Family and Community Services.
16. The Department of Family and Community Services, Community Services division or the parent's lawyer on their instruction can apply for a Children's Court Clinic (CCC) assessment of the parents parenting capacity to be undertaken. This assessment is done for the Children's Court by a clinician (social worker or psychologist) and not by the Department of Family and Community Services. Assessments generally take about 6 weeks to complete. Once completed the assessment goes firstly to the Children's Court magistrate for reading. Once the magistrate has seen the report it becomes a court document and she/he will release the document to the parent's lawyer and the Department of Human Services.
17. As the case progresses the Department of Family and Community Services may make an application to the Children's Court magistate for the issue of subpoenas. These may cover both parents' health records. police records, education records and similar documents. The parent's lawyer can make similar applications and this can include the Department of Family and Community Services files that relate to this case.
18. While the case proceeds a Children's Court magistrate or registrar may order all parties to attend a Dispute Resolution Conference (DRC). An DRC conference is made up of the Departmental caseworker and their manager, the parents with their lawyer and the children's lawyer. The conference is chaired by a Registrar. The purpose of the conference is to see if an agreed position can be reached as to the future of the children. The conference is confidential and what is said in the conference can not be used at a later date in the Children's Court.
19. It is at a DRC conference that the Department of Family and Community Services, Community Services division is likely to give a first indication as to whether they think 'restoration of the children to parental care' is a possibility or whether the Department intends to seek an order from the Chidren's Court for the children to be placed under the 'parental responsibiliy of the Minster until the chidren are 18 years of age'.
20. When restoration is considered a Care Plan must be filed with the Children's Court. The case will then go to a hearing and a short term order will be made. The order will specify the time period for the gradual restoration of the children to parental care i.e. 2 years. In addition the parents may be asked to sign an undertaking i.e no use of alcohol that will be part of the order. Before parents agree to this type of order they should seek the advice of a lawyer.This is because if parents breach an undertaking it will give the Department of Family and Community Services reason to return to the Children's Court and seek an order for parental responsibility to be made in favour of the Minister.
21. If an agreement is not reached at a DRC dates for a full court hearing will be set. There is a long wait for a hearing. In the meantime the ICO that is in place will be continued.
22. If a date is set for a hearing a date will also be set for the filing wth the Chilldren's Court of a Department of Family and Community Services Care Plan. The Care Plan indicates what the Department proposes should be put in place, other than restoration, to safeguard the child's future.
Before filing a Care Plan the Department of Family and Community Services must hold a meeting with parents to tell them what the Department proposes. Parents may also be asked to sign a copy of the Care Plan to signify that they agree with it. Parents should not sign this document without first of all seeking their lawyer's advice.
23. Before a hearing parents have the opportunity to file further material disputing the Department's position as set out in the Care Plan.
24. At a full Children's Court hearing the parent's lawyer will be able to cross examine the Departmental caseworker, the casework manager and the clinician who undertook a Children's Court Clinic assessment.
25. At a hearing the Children's Court magistrate may find in favour of the Department of Family and Community Services and make an order for 'parental responsibility' for a child to be with the Minister until the child is 18 years of age. If this is the outcome of the case the Department may agree to a Contact Order specifying the extent of the contact that parents will be allowed with their child. It is typically four times per year for 2 hours on each occasion. At some point in 2012 the Children's Court may cease to have the power to make Contact Orders once a hearing has been concluded. Contact after that point will then be at the discretion of the Department.
26. It is possible to appeal to the District Court against formal orders made by the Children's Court.
An alternative process
27. An alternative process that may be used by the Department of Family and Community Services that leaves children in parental care is for parents to be asked to sign a 'Parental Responsibility Contract' (PRC)'. A contract of this type is aimed at improving the parenting skills of the parents and encoraging them to accept greater responsibility fot their children. Parents need to seek the advice of a lawyer before signing this type of contract.
28. A PRC which is a written document that is signed by the parents must be filed with the Children's Court registry. The contract cannot exceed 6 months. A contract will specify the circumstances that will authorise the Department of Human Services to file a contract breach notice with the Children's Court. When they do this they must inform the Children's Court registry.
29. If a PRC breach or termination noitice is filed the Department of Family and Community Services may remove a child from parental care and proceed to make an application for an ECPO to the Children's Court. The breach notice supports the presumption that the child is in need of care and protection unless the parents rebut this presumption. Rebuttal means that the parents must prove that the children are not in need of care and protection.
Children's Court matters are in the civil jurisdiction. The rules of evidence do not apply in the Children's Court although a magistatre on application can rule otherwise. A judgment in a civil jurisdiction is made - on the balance of probabilities.
This is different from the criminal jurisdiction where stringent rules of evidence apply and the judgment standard is - beyond reasonable doubt.
You can read all about these processes in detail by obtaining a copt of the NSW Children and Young Persons (Care and Protection ) Act 1998.
advice leaflet 9
How to find a lawyer
There are two websites that can help you find a lawyer in NSW. They are
Each of these sites contains a search engine that allows you to find a solicitor or barrister by name, geographical region or specialisation.
If possible, find a lawyer who is a children's law specialist (this is different from a family law specialist).
Many solicitors and barristers who practice in the NSW Children's Court act on occasions for Community Services.They also act on different occasion for parents.
FIN-NSW has compiled the following list of solicitors and barristers who only act for parents. This information may be of use to parents when they are looking for a solicitor to represent them in the Children's Court.
Cameron Bell, Universal Law, Suite 6, 97 Stuart St., (PO Box 90), Mullumbimby, NSW 2482. Tel. 6684 6111. E-mail: email@example.com
Paul Denmeade & Co., 2/98 Woodlark St., Lismore, NSW 2480. Tel.6622 2201. E-mail: firstname.lastname@example.org
Graeme Dougherty, Dougherty and Smith, Cnr Patrick and Hurley St, Campbelltown, NSW 2560. Tel. 4625 5177, E-mail: email@example.com
Debbie Flynn, Debbie Flynn and Associates, 35A Gurwood St., Wagga Wagga, NSW 2650. Tel. 6921 1060. E-mail: firstname.lastname@example.org
Luke Geary, Salvos Legal Humanitarian, 86 Campbell St., Surry Hills, NSW 2010. Tel. 9213 3902. E-mail: email@example.com
Hal Ginges, Hal Ginges Co Pty Ltd., 81 Lurline St., Katoomba, NSW 2780. Tel 4782 2888. E-mail: firstname.lastname@example.org
Ricardo Gonzales, Gonzales and Co., Level 8, 301 Castlereagh St., Sydney 2000. Tel. 9281 2225. E-mail: email@example.com
Dr. Patricia Hansen, Hansen Legal, Marsden Chambers, Suite 2, Level 1, 145 Marsden Street, Parramattta, NSW 2150. Tel. 0416 112 330. E-mail: firstname.lastname@example.org
Livermore Ray Ndou, Bazzi Lawyers, 93a Railway St., Rockdale, NSW 2216. Tel. 9597 5028. Fax 9597 5385. E-mail: email@example.com
Tim Mara, Rafton Family Lawyers, Shop 3 & 4, Ground floor, Jesse St Centre, 2-12 Macquarie St., Parramatta, NSW 2150. Tel. 9633 9888. E-mail: firstname.lastname@example.org
Marissa Sandler, Intellectual Disability Rights Service, PO Box 3347, Redfern, NSW 2106. Tel. 9318 0144. E-mail: email@example.com
Gai Winn, Winn Legal, 74 Menzies Rd., Marsfield, NSW 2122. Tel. 9869 1286. E-mail: firstname.lastname@example.org
Sarah Harrod, Harrods and Associates, PO Box 1007, Petersham, NSW 2049. Tel. 8507 0156. E-mail: email@example.com
Steven Ktenas, 23 Park Road, Carlton, NSW 2218. Tel. 9594 1418. E-mail: firstname.lastname@example.org
Neisa Shepherd, NIS Law, Level 1, 83 Brunker Rd., Broadmeadow, NSW 2292. Tel. 4927 6315. Fax 4927 6525. E-mail: email@example.com
Brian Samuel and Associates, Suite 1,Floor 1, 1465 Pittwater Road, North Narrabeen, NSW 2101.
Tel. 9970 5372. E-mail: firstname.lastname@example.org
Robert Tricca and Associates, Suite 5/6, 116 Queen St., Campelltown, NSW 2560. Tel. 4628 4993. E-mail: email@example.com
Normally, a barrister has to be briefed by an instructing solicitor.
Esther Lawson, Culwulla Chambers, 11/67 Castlereagh St., Sydney, NSW 2000. Tel. 9231 3462. E-mail: firstname.lastname@example.org
LeeMay Saw, Martin Place Chambers, 6th Floor, 65 Martin Place, NSW 2000. Tel. 8227 9600. E.mail:: email@example.com
Some of the solicitors identified above may from time to time be appointed to represent a child or children in a Children's Court case.
This is not a closed list. If there are other solicitors who do not act for Community Services who would like their name to be placed on this list they should send an e-mail requesting inclusion to firstname.lastname@example.org
If anyone named on this list wishes to have their name removed they should make this request to email@example.com
Should FIN-NSW become aware, at any point in the future, that a person named on this list is acting for Community Services then their name will immediately be removed from this list.