Care tree

[2-2000] Definitions

Last reviewed: May 2023
Note:

All references to sections are, unless otherwise stated, references to sections in the Children and Young Persons (Care and Protection) Act 1998.

Where “child” is referred to herein, the reference also includes a “young person”.

If wording is in a box, it is suggested wording that may be said in court.

Glossary

CDPVA

Crimes (Domestic and Personal Violence) Act 2007

CROC

United Nations Convention on the Rights of the Child

DLR

Direct legal representative

DRC

Dispute resolution conference

GAL

Guardian ad litem

ILR Independent legal representative
MOCO

Minute of care order

NRPOR

No realistic possibility of restoration

PN

Practice Note

PR

Parental responsibility

RTN

Registrar to notify

SOPP

Summary of proposed plan.

[2-2020] Closed court

Last reviewed: May 2023

Section 104B provides:

Any person who is not directly interested in the proceedings must, unless the Children’s Court otherwise directs, be excluded from the place where the proceedings are being heard.

[2-2040] Parties

Last reviewed: May 2023

Right of appearance — s 98

(1) 

In any proceedings with respect to a child or young person—

(a) 

the child or young person and each person having parental responsibility for the child or young person, and

(b) 

the Secretary, and

(c) 

the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

Practice Note 5 The appointment of a legal representative to act for a child or young person under s 99(1) shall be deemed to have been made to a solicitor or barrister employed or engaged by Legal Aid NSW. When a legal practitioner has filed a Notice of acting as a child’s or young person’s legal representative that legal practitioner is taken to be the child’s or young person’s representative for all future proceedings. Otherwise, the court should appoint if requested by a practitioner.

“Child” except in Ch 13, means a person who is under the age of 16 years.

“Young person” means a person who is aged 16 years or above but who is under the age of 18 years.

“Direct legal representative”

  • the child or young person is capable of giving proper instructions, and

  • a guardian ad litem has not been appointed for the child or young person: see s 99A(1).

    Note:

    See s 99B, there is a rebuttable presumption that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative.

“Independent legal representative”

  • the child or young person is not capable of giving proper instructions, and

  • a guardian ad litem has not been appointed for the child or young person: see s 99A(2).

    Note:

    See s 99C, there is a rebuttable presumption that a child who is not less than 12 years of age, or a young person, is capable of giving proper instructions to his or her legal representative. This presumption is not rebutted merely because the child or young person has a disability.

However, the Children’s Court may, on the application of a legal representative for a child who is not less than 12 years of age make a declaration that the child is not capable of giving proper instructions s 99C(2).

Therefore s 99A(2) allows a legal representative for a child is to act as an “independent legal representative” with the leave of the court.

Refer to s 10 — the importance of the participation of the child.

The principle of participation — s 10

(1) 

To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following—

(a) 

adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department’s intervention, the ways in which the child or young person can participate in decision making and any relevant complaint mechanisms,

(b) 

the opportunity to express his or her views freely, according to his or her abilities,

(c) 

any assistance that is necessary for the child or young person to express those views,

(d) 

information as to how his or her views will be recorded and taken into account,

(e) 

information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision,

(f) 

an opportunity to respond to a decision made under this Act concerning the child or young person.

(2) 

In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person.

(3) 

Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following—

(a) 

plans for emergency or ongoing care, including placement,

(b) 

the development of care plans concerning the child or young person,

(c) 

Children’s Court applications concerning the child or young person,

(d) 

reviews of care plans concerning the child or young person,

(e) 

provision of counselling or treatment services,

(f) 

contact with family or others connected with the child or young person.

Support person

Any participant in proceedings before the court may, with leave, be accompanied by a support person: s 102(1). Leave must be granted unless:

  • the support person is a witness

  • the court is of the opinion, having regard to the child’s wishes, leave should not be granted, or

  • there is some other substantial reason not to grant leave: s 102(2).

Case workers

Allow case workers and case work managers to remain in court. They can provide information and may be informed first hand of changes needed to be made, eg to a care plan, if required.

Others

If no compelling objection by a party, then allow a person, whom any proposed order might have a significant impact upon, to remain.

Media

The media is entitled to be in court for the purpose of reporting on proceedings, subject to not disclosing the child’s identity. But the common law principle of open justice is secondary to the principles in s 9, in particular the principle that the safety, welfare, and well-being of the children are paramount: AM v DoCS; Ex p Nationwide News [2008] NSWDC 16.

Section 105 is usually sufficient protection to not have to exclude the media. The name of any child must not be published: s 105(1).

[2-2060] Service

Last reviewed: May 2023

The Secretary is required to make reasonable efforts to notify the parents: s 64. Personal or postal service is permitted: s 256.

A matter can proceed without service in the absence of parents (s 97), but time limit interim order.

256A Children’s Court may dispense with service

(1) 

If the Children’s Court is satisfied that an unacceptable threat to the safety, welfare or well-being of a child or young person or a party to any proceedings would arise if any notice or other instrument required or authorised by this Act was given to, or any document served on, a particular person, the Children’s Court may make an order dispensing with the giving of notice or instrument to, or service on, the person concerned.

(2) 

An order under this section excuses every other person from the requirement to comply with any provision of this Act that requires notification to, or service on, that person.

Where it is not possible for service to be affected the court may order substituted service. The rule permits substituted service to be taken as personal service: Children’s Court Rule 2000 r 30J. An affidavit of attempted service might form the basis of an application for substituted service.

If a matter is adjourned for establishment, leave, care plan or hearing, and a party is not present or represented, then have the Registrar notify the absent party of the timetable and next listing.

[2-2080] Parties are encouraged to consult but this is not a consent jurisdiction

Last reviewed: May 2023

If a common position is reached as to what orders, undertakings and/or directions should be made, the parties should record these in a draft minute of order.

However, this is not a consent jurisdiction and the court must still consider all directions and orders.

Justice Lindsay recognised the protective purpose of the Children’s Court jurisdiction in CAC v Secretary, DFaCS [2014] NSWSC 1855 at [16]:

The jurisdiction the Court is called upon to exercise is not a “consent jurisdiction” in the sense of its being bound to make a particular order, or to adopt a particular course, because a person in need of protection, or a significant other person, seeks it or agrees to it. The Court is bound to exercise an independent judgement because of the public interest element in the decisions it is called upon to make, and the possibility, if not the fact, that the person in need of protection lacks the capacity requisite to informed decision-making.

[2-2100] Minute of care order

Last reviewed: May 2023
Note:

A minute of care order (MOCO) will always be provided by one of the parties when making final orders.

[2-2120] Expedition and adjournments — s 94

Last reviewed: May 2023
(1) 

All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

(4) 

The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that—

(a) 

it is in the best interests of the child or young person to do so, or

(b) 

there is some other cogent or substantial reason to do so.

Age

Attachment behaviours are the means by which infants elicit care and even ensure their survival, and different patterns of attachment result from each individual’s adaptation to the quality of care-giving he or she has received.

To break an attachment is distressing, and can potentially place a child at risk. Transient effects are expected when the first change in placement occurs before 6–9 months of age. After 9–12 months of age, there will be distress, with long-term effects of the change increasing with the child’s age. From 1–3 years, separation is a traumatic loss and a developmental crisis. Even if the loss occurs after approximately 3–5 years of age, some persistent loss of security in new relationships is to be expected.

See M Allerton, “The relevance of attachment theory in care proceedings”, at [18-1000].

The Children’s Court aims to complete 90% of care cases within 9 months of commencement, and to complete all cases within 12 months of commencement: see PN 5 [5.1].

[2-2140] Legal test

Last reviewed: May 2023

The paramount principle under which the Act is to be administered is that in any action or decision concerning a particular child, their safety, welfare and well-being is paramount: s 9(1).

The Care Act is not just about actual harm but risk of harm. This allows the court to consider issues such as insight and protective capacity.

In making determinations regarding establishment, the legal test to be applied is as a matter of probability.

In making determinations regarding removal, restoration, custody, placement and contact, the legal test to be applied is that of “unacceptable risk” of harm to the child(ren) concerned: M v M (1988) 166 CLR 69.

Proving a fact

Onus applies

It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard: Isles & Nelissen [2022] FedCFamC1A 97 at [39].

Standard of proof

The standard of proof is on the balance of probabilities: s 93(4) of the Care Act.

Briginshaw applies

The High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 at [201].

Briginshaw requires clear and cogent proof of serious allegations but does not change the standard of proof; it reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [171].

When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected: Briginshaw.

Evidence-based

In Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 Meagher JA said at [79]:

[the court] must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined.

The court must draw its conclusions from material that is satisfactory, in a probative sense, to avoid decision-making that might appear capricious, arbitrary or without foundational material: Department of Communities and Justice (DCJ) and Bloom at [199].

In Briginshaw, Dixon J stated:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

Proving a fact is retrospective.

The court, on the evidence, determines facts.

If the allegation is proven

If an allegation is made out on the balance of probabilities, allowing for Briginshaw, it does not follow that the Court must make that finding.

The High Court in M v M (1988) 166 CLR 69 said:

There are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has taken place unless impelled to do so by the particular circumstances of the case.

Additionally, there needs to be calm consideration before making a positive finding involving serious criminal allegations when it is not required. The court conducts care hearings without the safeguards of criminal procedure or protections of the Evidence Act 1995.

However, in appropriate cases, findings of truth is in the best interests of children.

The court then assesses risk — without conflation: Isles & Nelissen [2022] FedCFamC1A 97 at [83].

If allegation is not made out

It does not follow if an allegation is not made out on the balance of probabilities, allowing for Briginshaw, that this determines the wider issue of the best interests of the child: Isles & Nelissen [2021] FedCFamC1F 295 at [61].

The court then assesses risk — without conflation: Isles & Nelissen [2022] FedCFamC1A 97 at [83].

Assessing risk

Onus is not relevant

Any action or decision concerning a child or young person, the safety, welfare and well-being of the child or young person are paramount: Department of Communities and Justice (DCJ) and Bloom at [127].

Unlike in other civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character: Isles & Nelissen [2022] FedCFamC1A 97 at [50], per Fitzwater v Fitzwater [2019] FamCAFC 251.

Standard of proof

In Isles & Nelissen [2022] FedCFamC1A 97 the Full Court considered the unacceptable risk test laid down in M v M (1988) 166 CLR 69 and rejected the proposition that a finding of unacceptable risk is made according to the civil standard of proof.

The court distinguished between past events decided on the balance of probabilities and hypothesising about future possibilities.

In Isles & Nelissen at [140] it was said:

It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the Court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse.

The Full Court at [50] referred to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 that concluded:

a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not.

The standard of proof in assessing risk is not on the balance of probabilities. Instead, the court looks more to possibilities: Isles & Nelissen at [82] adopting the primary judge’s remarks.

Briginshaw is not applicable

The resolution of an allegation against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child: M v M.

Where there is past allegation, the focus of proof is upon the person and that issue. Where that is done the Briginshaw civil standard of proof applies: M v M.

However, where the issue is unacceptable risk, the focus is on the safety, welfare and well-being of the child. Briginshaw is therefore, not relevant.

Evidence-based

Risks of harm are not susceptible to scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]) but are instead postulated from known historical facts and present circumstances: Isles & Nelissen at [7].

The assessment of risk is an evidence-based conclusion and is not discretionary … The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not: Isles & Nelissen at [85].

Fogarty J stated it is necessary for a judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm. Furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also to the magnitude of the possible harm: Isles & Nelissen at [12].

In Isles & Nelissen at [82], agreeing with the primary judge:

The notion of “an unacceptable risk”, is, however, a predictive or prospective exercise for the court in determining whether there is a “risk” into the future.

Consequently, the consideration of an unacceptable risk is an evidence-based one but, at the same time, a prospective one. This is not a two–step or default approach but one requiring separate and independent consideration: Isles & Nelissen at [63].

Unacceptable risk of harm

The following passages in Department of Communities and Justice (DCJ) and Bloom at [127]–[131], [133]–[135] sets out the law relating to unacceptable risk:

1. 

First and foremost is what is sometimes referred to as the paramountcy principle: s 9(1). This principle requires that in any action or decision concerning a child or young person, the safety, welfare and well-being of the child or young person are paramount.

2. 

This principle, therefore, is the underpinning philosophy by which all relevant decisions are to be made …

3. 

It is now well settled law that the proper test to be applied in care proceedings in respect of final orders is that of “unacceptable risk to the child”: M v M at [25]: Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [45].

4. 

The decision in M v M dealt with past sexual abuse of a child but the principles there set out apply equally to other forms of harm, such as physical and emotional harm.

5. 

A positive finding of an allegation of harm having been caused to a child should only be made where the Court is so satisfied according to the relevant standard of proof (ie balance of probabilities), with due regard to the matters set out in Briginshaw. Nevertheless, an unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned: M v M at [26].

6. 

Whether there is an “unacceptable risk” of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight.

7. 

The court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated, for example, the nature and extent of parental contact, including any need for supervision: from a paper by Justice Stewart Austin delivered at the 2015 Hunter Valley Family Law Conference.

8. 

Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. The risk of detriment must be balanced against the possibility of benefit to the child.

The court’s method of decision is to then apply the facts (and circumstances) found, to the law.

Identify the Risk of harm Assess the seriousness of the risk — in the context of the severity of possible consequences The likelihood of the risk occurring Whether that risk might be satisfactorily managed or otherwise ameliorated and the likelihood of compliance Balanced against the possibility of benefit to the child Test

Examples:

  • mental health

  • drug and alcohol

  • domestic violence

  • risk of physical abuse

  • exposure to sexual acts

  • psychological harm

  • risk of significant neglect

  • inadequate hygiene

  • educational neglect

  • transient living

  • inadequate supervision

  • inadequate clothing

  • inadequate bedding

  • criminal activity

  • child coached when lack independent recollection they will not distinguish between a false memory and a real one creates a sense of victimisation and aligns the child with a false reality to fear those who otherwise are loving and protecting towards them

  • a failed restoration

Scale:

  • insignificant

  • minor

  • moderate

  • major

  • catastrophic

Scale:

  • rare

  • unlikely

  • possible

  • likely

  • very likely

  • inevitable

Examples:

  • in custody

  • restricted by DCJ

  • supports

  • scaffolding

  • treatment

  • training and education

  • AVO under s 40A under the CDPVA

The majority of children are raised by their parents, the relationship between parent and child is one of the closest, if not the closest, of all relationships and the mere fact of the relationship will invariably receive substantial weight in any given case. To protect the child’s paramount interests the proper test to be applied is that of “unacceptable risk” to the child to be assessed from the accumulation of factors proved.

[2-2160] Hearings

Last reviewed: May 2023

Decision structure:

  • introduction/parties,

  • background: recite the matter and show the way in which the matter comes before the court

  • onus of proof

  • standard of proof

  • witnesses

  • issues not in dispute

  • issues in dispute

  • submissions

  • state findings of fact relevant to issues in dispute

  • state the law applicable dealing with the essential elements of the offence and rule on legal argument,

  • decision: integrating the facts and law.

Rules of evidence

The court is not bound by the rules of evidence, unless it so determines: s 93(3). For example, before issuing a s 128 Certificate under the Evidence Act make a ruling that the Evidence Act applies.

Whilst the Evidence Act does not apply, in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 Meagher JA said at [79]:

Although the Tribunal may inform itself in any way “it thinks fit” and is not bound by the rules of evidence, it must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined. Thus, material which, as a matter of reason, has some probative value in that sense may be taken into account: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491–493; The King v The War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 249–250, 256.

Hearing procedure

Preliminary

The following suggested procedure for marking exhibits is:

(a) 

the written report under s 61(2) of the Care Act as exhibit 1 and the SOPP as exhibit 2, (for s 61 applications)

(b) 

the care plan as exhibit 3 (if applicable)

(c) 

the report from the authorised clinician (if there is one) as exhibit 4,

(d) 

all documents produced under subpoena upon which a party proposes to rely at the hearing, including by way of cross-examination — marked as a single exhibit (subpoena bundle) as exhibit 5.

Note:

The court will not usually permit a witness to be called if no affidavit of that witness has been filed: see PN 5.

The court may, however, give leave for such a witness to be called and give oral evidence. In determining whether to grant such leave, the court will consider the interests of justice, the interests of the child or young person who is the subject of the proceedings, the opportunity the party has had to place the evidence before the court and any prejudice caused to another party.

The court may grant leave to enable a party to supplement the affidavit evidence of the witness called by that party with further oral evidence or to clarify matters within the written evidence by further oral evidence. In determining whether to grant such leave, the court will consider the interests of justice, the interests of the child or young person who is the subject of the proceedings, the opportunity the party has had to place the evidence before the court and any prejudice caused to another party.

Where a witness is required for cross-examination, the usual procedure will be for each witness to be called and the affidavit or affidavits of that witness will be identified and formally read as the witness’s evidence in chief and each affidavit marked as an exhibit.

Normally, the order of evidence is:

(a) 

the applicant

(b) 

the Secretary if not the applicant

(c) 

the parents

(d) 

DLR

(e) 

ILR.

Note:

The clinician is the court’s witness but will usually be introduced by the legal representative of the Secretary. The clinician report need not be in affidavit form.

[2-2180] Unreasonable conduct

Last reviewed: May 2023

Care proceedings can be very stressful. It is helpful to make it clear from the outset as to why the matter is in court and what we need to focus on.

Use s 94 (Expedition and adjournments) to minimise delay: see [2-2120].

If there is no possibility of settlement, set a hearing date as soon as possible and work backwards for any interlocutory matter. This also places restrictions on the issuing of subpoenas.

The Managing unreasonable conduct by a complainant manual by the NSW Ombudsman is a helpful and an interesting resource. For example, if a person is telling their story or giving an explanation, paraphrasing is a powerful communication tool which allows you to:

  • interrupt without triggering resistance or being seen as disrespectful

  • get them to listen to you, because people listen very hard to people repeating their views back to them

  • take control of the conversation and ensure you have “got it right”

  • create empathy because the other person believes you are trying to understand their point of view

  • cause the other person to feel they need to listen to your point of view because you have listened to theirs.

Avoid arguments or trying to reason with people who are unwilling to consider other logical and reasonable points of view. No amount of reasoning is likely to convince such people to calm down or to accept your point of view or decision.

Unrepresented litigants

If there are unrepresented litigants, the following text may be helpful.

[2-2200] Section 61 and s 90 applications

Last reviewed: May 2023

The most common applications are s 61 applications and s 90 applications.

Application for care orders under s 61

There are three stages under s 61:

  • consideration of an interim order,

  • a finding that the child is in need of care and protection (establishment), and

  • final order.

    Note:

    Establishment and final order are generally dealt with separately, other than for unexplained injury matters.

The grounds for the making a finding that the child is in need of care and protection are found under s 71(1).

There are two alternatives in establishing the matter:

  • the finding that the child is in need of care and protection, or

  • was in need of care and protection when the circumstances that gave rise to the application occurred or existed (s 72(1)(a)), and whether the child would be in need of care and protection but for the present arrangements (s 72(1)(b)).

There are two questions in determining a final order:

  • is there a realistic possibility of restoration, and

  • is permanency planning appropriately and adequately addressed?

Frequent interlocutory applications:

  • application to be joined

  • applications for assessment orders under ss 53, 54 and 55

  • applications for DRC,

  • applications for Children’s Court to dispense with service under s 256A.

Application for rescission or variation of orders under s 90

There are two steps under s 90:

  • leave, and

  • final order.

There are three questions in determining a final order under s 90:

  • is there a realistic possibility of restoration?

    Note:

    If an order is parental responsibility to Minister or from Minister to another, then consider age, views, time with carers, attachment, capacity of birth parents, risk to child per s 90(6).

  • should the court rescind or vary the previous order?

  • is permanency planning appropriately and adequately addressed?

Frequent interlocutory applications:

  • applications for assessment orders under ss 53, 54 and 55

  • applications for DRC.

Other applications

  • applications for emergency care and protection orders under ss 45(1)(a) and 46

  • applications on breach of undertakings under s 76(5)

  • applications on breach of supervision under s 77(3)

  • applications for contact orders under s 86

  • extension of the period of a supervision order,

  • applications for Children’s Court to dispense with service under s 256A.

Other reviews

  • progress review.

[2-2220] Application under s 61 — first return date

Last reviewed: May 2023
Note:

The Children’s Court may vary interim orders at any time including on oral application in matters currently before the court.

If there are unrepresented parties, the following text may be helpful:

Short reasons for interim order

The court sets the following timetable:

  • Secretary to file and serve SOPP (14 days) together with any affidavit (sometimes Secretary will ask for a longer period for a historical affidavit)

  • parents to file and serve evidence in reply to Secretary’s application (24 days)

  • if no affidavit filed, affidavit of service to be filed by next date

  • adjournment for establishment (28 days).

Long order

Under s 69 of the Act, the Children’s Court may make interim care orders in relation to a child after a care application is made and before the application is finally determined if the court is satisfied that it is appropriate to do so.

Section 69(2) states that the Secretary, in seeking an interim care order, has the onus of satisfying the court that it is not in the best interests of the safety, welfare and well-being of the child that the child should remain with his or her parents or other persons having parental responsibility: s 69(2). This may be done by the Children’s Court weighing the risks involved on the evidence available to it at the time: Re Jayden [2007] NSWCA 35.

Option — interim care orders

The Children’s Court may make interim care orders if the court is satisfied that an interim order is necessary, and is preferable to an order dismissing the proceedings: s 70A, see Re Jayden, above, per Ipp J at [70].

Option — other orders

The court may make other orders if it is appropriate for the safety, welfare and well-being of the child: s 70.

Long order (cont)

The care application is accompanied by a written report as required under s 61(2).

This report sets out the facts on which the Secretary argues that the court should find that the child is “in need of care and protection” and the interim order sought: Practice Note 2.

Risk factors include:

  • mental health

  • drug and alcohol

  • domestic violence

  • risk of physical abuse

  • exposure to sexual acts

  • exposure to sexual acts

  • risk of significant neglect

  • inadequate hygiene

  • educational neglect

  • transient living,

  • inadequate supervision/clothing /bedding.

Option — s 106A

Section 106A applies:

Where such evidence is adduced the parent may rebut the prima facie evidence by satisfying the court on the balance of probabilities that: “The circumstances that gave rise to the previous removal of the child or young person no longer exist”.

In SB v Parramatta Children’s Court [2007] NSWSC 1297, Price J said that it was permissible to identify the circumstances that gave rise to an earlier removal of children for the purpose of determining whether the circumstances that gave rise to the previous removal of the children still exist or not.

Option — interim order

In essence, an interim order is an “order of a temporary or provisional nature pending the final resolution of the proceedings”. Generally speaking, an applicant for an interim order would not be required to satisfy the Children’s Court of the merits of the applicant’s claim on the balance of probabilities. This can be inferred from ss 69, 70 and 70A.

One should not attach labels such as “prima facie case” or “arguable case” to the standard applicable to the granting of interim orders. Rather, an interim care order can be made by satisfying the relevant tests set out in ss 69, 70 and 70A: namely, if the Children’s Court satisfies itself that it is not in the best interests of the safety, welfare and well-being of the child that he or she should remain with his or her parents or other persons having parental responsibility (see s 69(2)); that the making of an interim order is appropriate for the safety, welfare and well-being of a child or young person (see s 70); or that an interim order is necessary, in the interests of the safety, welfare and well-being of the child, and is preferable to a final order or an order dismissing the proceedings: s 70A. This may be done by the Children’s Court weighing the risks involved on the evidence available to it at the time: Re Jayden [2007] NSWCA 35 at [77] Ipp JA.

Long order (cont)

The care application also specifies evidence of prior alternative action as required under s 63(1) as to:

  • the support and assistance provided for the safety, welfare and well-being of the child or young person, and

  • the alternatives to a care order that were considered before the application was made and the reasons why those alternatives were rejected.

The usual interim order is for the allocation of parental responsibility to the Minister until further order: Re Mary [2014] NSWChC 7.

Timetable

  • Secretary to file and serve Summary of Proposed Plan (14 days) together with any affidavit (sometimes Secretary will ask for a longer period for historical affidavit)

  • parents to file and serve evidence in reply to second application (24 days)

  • if no affidavit filed, affidavit of service to be filed by next date

  • adjournment for establishment (28 days).

If there are unrepresented parties, the following suggestions may be helpful:

In most cases the orders sought are an interim care order allocating parental responsibility to the Minister till further order.

Usually the court will make an interim care order. This is because there is generally no evidence other than the application and report in support of the application.

Less often, the court will make an interim care order allocating parental responsibility to another person. This may be a reliable family member, if one is available and accepted by the Secretary. All things being equal, a child or young person is likely to be better suited by an interim family placement, if a safe and reliable one is available, than by a foster placement.

The court may be asked to consider whether other orders, that is, supervision, contact, etc, should be made as alternatives or together with an order allocating parental responsibility. An interim supervision order or an interim order requiring undertakings may be appropriate in some situations. Generally, as with contact, this is best noted by the Secretary and can be followed up on the next return date.

Interim contact orders

In making an interim order the court must to some extent predict the likely outcome of the proceedings and make orders that are in keeping with this. Interim orders can assist transition. For example, it may be appropriate to provide for more frequent contact in an interim order than will be contemplated long term. It may also be appropriate to provide for declining or increasing amounts of contact that are in keeping with a move to the likely outcome.

Generally, early on in the proceedings, when the future is uncertain contact requests are best noted by the Secretary if they have parental responsibility. Contact can be asked about on the next return date.

[2-2240] Establishment — second return date

Last reviewed: May 2023

If there are unrepresented parties, the following text may be helpful:

If the issue of establishment is conceded

Short form Under s 72 a care order may only be made if the court is satisfied that a child is in need of care and protection or was at the time of removal and would be but for the existence of arrangements for the care and protection of the child.

Section 71 provides a number of grounds.

Option — child is in need of care and protection

Option — other orders

The court may make other orders if it is appropriate for the safety welfare and well-being of the child: s 70. The grounds are: s 71(1A)(a) (b) (c) (d) (e) (f) (g).

If establishment is contested

Or:

If adjourned for compliance and establishment is still contested

Note:

Rather than apply the Practice Note and adjourn for compliance it is not uncommon to list an establishment hearing once you are advised it is to be contested. This is because there is often significant case work already conducted and documented and parties have had time to consider the issue of establishment. This approach reduces further delay.

Note:

The hearing of a contested application on establishment must be no longer than two hours, except in exceptional circumstances. Applications are to be heard expeditiously. Cross-examination will be allowed only in exceptional circumstances.

Note:

A party can seek to have the issue of establishment re-determined.

Note:

For unexplained injury matters, it may be appropriate to conduct an establishment and final hearing together.

Establishment hearing

Or:

The burden of proof is upon the preponderance of probabilities, but the seriousness of the allegation, the gravity of the consequences flowing from a decision, and its inherent likelihood are matters to be taken into account in assessing the standard to be applied: s 140 Evidence Act; Briginshaw v Briginshaw (1938) 60 CLR 336.

Findings of fact

The court is not bound by the rules of evidence unless it so determines: s 93(3). Nevertheless the court must draw its conclusions from material that is satisfactory in a probative sense so as to avoid decision making that might appear capricious, arbitrary or without foundational material: JL v Secretary DFaCS [2015] NSWCA 88 at [148].

The court can consider and rely upon risk of harm reports concerning the subject children and siblings going back many years. The evidence is relevant and, if credible, should be taken into account by the court in determining the issue.

In Whale v Tonkins 1984 9 Fam LR 410 the Supreme Court (Hutley JA) said at 411:

The court is concerned with all evidence which is relevant, that is, evidence which can make more probable or less probable a finding as to the kind of guardianship the child is experiencing. This enquiry may cover years.

Hutley JA goes on to say later at 411:

it is wrong for the hearing to be confined within narrow limits.

In VV v District Court (2013) NSWCA 469 Barrett JA noted at [26] Flannery J made the following statement, referring to D (A Minor) (1987) AC 317:

I must look at the situation both as it was at the time, as it had been in the past and as it would have been likely to continue if the process of protection had not been put in motion.

In Director General, DoCS v Dessertaine [2003] NSWSC 972, it was stated that in determining:

whether a child is in need of care and protection the Court is not concerned in determining whether all factually pleaded matters under all grounds have been sustained or not. It is simply concern whether there is some evidence to support one of grounds. Once it has reached that point there is no need for a further wide range of enquiry to be undertaken

The rationale for the requirement that the protective proceedings be established has been described as a safeguard against arbitrary intervention by the State into the lives of children and their families: Re Alistair[2006] NSWSC 411 at [64]–[65] per Kirby J.

The establishment issue is a threshold issue: Re Alistair at [65]. It is not concerned with the issue of restoration nor with considerations of unacceptable risk of harm, nor with the amelioration of risk and scaffolding considerations as dealt with in cases such as Re Tanya [2016] NSWSC 794, M v M, Johnson v Page [2007] Fam CA 1235 and Bell-Collins Children v Sec FACS (No 2) [2016] NSWSC 853 at [26]. These are properly matters for the placement stage of protection proceedings.

In Director General, DoCS v Dessertaine [2003] NSWSC 972, James J stated that a magistrate, when considering the grounds, exercises “discretion whether to make an order” and that “discretion must be exercised in accordance with proper judicial principles”.

As to what constitutes “need of care and protection”, the Act provides a number of grounds under s 71(1), without limitation subject to s 71(1A), which a child may be considered to be in need of care and protection.

Section 9(1) states that the Act is to be administered under the principle that the safety, welfare and well-being of the children are paramount.

At the establishment stage, the issue is whether the grounds have been established, as a matter of probability, such as to warrant a finding that the child is in need of care and protection or was at the time of removal and would be but for the existence of arrangements for the care and protection of the child. Relevantly, the court is concerned whether, as a matter of probability, s 71(1)(a)–(h), s 71(1A) has been established.

Option — if parents say that they have changed
Option — s 106A applies

The court is satisfied as a matter of probability …. s 71(1)(a)–(h), s 71(1A).

Option — Finding
Section 72(1) alternative — if a previous unavailable parent now seeks the return of the child, but the court is satisfied of s 71(1)(a)–(g)

Finding option

Appeal rights after establishment

In GA v Director General, Department of Human Services [2011] NSWDC 57 it was found that at establishment there is a decision of the court — but not an order.

Section 91 of the Act states that a party to proceedings who is dissatisfied with an order of the Children’s Court (other than an interim order) may appeal to the District Court against that order.

Consequently, in GA it was found that the court has no jurisdiction to hear “an appeal” from the decision of the Children’s Court on establishment.

GA referred to Re Alistair [2006] NSWSC 411. In that case the court said at [81]:

Any right of appeal comes at the end of the process, once final orders have been made. The proceedings remained inquisitorial until the final orders, they being orders seeking an outcome in the best interests of the child.

[2-2260] Directions in relation to the placement stage — third step

Last reviewed: May 2023

Timetable

  • Secretary is to file and serve a care plan and permanency plan, a draft minute of order and a copy of the birth certificate for each child within 28 days of the receipt of a clinic assessment report or establishment

  • mother/father/other to file and serve evidence in reply to care plan and permanency plan within 14 days

  • adjournment for consideration of the care plan and a completed application for hearing date form, if required.

If there are unrepresented parties, the following text may be helpful:

Note:

There are a number of interlocutory applications that are often made following establishment and during the placement stage.

[2-2280] Joined application — first listing

Last reviewed: May 2023

This will usually be an adjournment sought for instructions.

Note:

If at least one party opposes the application it is best to set a timetable as below:

  • file and serve affidavit evidence by applicant (7 days)

  • response (21 days)

  • adjournment for compliance (28 days).

Leave to be joined supported by parties and court — s 98(3)

If leave to be joined opposed — s 98(3)

Note:

The hearing of a contested Joinder application must be no longer than two hours except in exceptional circumstances — to be heard expeditiously. Cross-examination will be allowed at such a hearing only in exceptional circumstances.

Leave to be joined hearing — s 98(3)

The Care Act provides for three kinds of possible status for a person who wishes to appear in Care Act proceedings: two under s 98 and the other under s 87.

Section 98 grants a right of appearance to limited classes of persons, namely the Secretary, the Minister, and the “child or … person having responsibility for the child”: s 98(1). But the section also provides a broader right of appearance with the leave of the court to a person who “has a genuine concern for the safety, welfare and well-being of the child or young person”: s 98(3). This additional class of person may only appear “by leave of the Children’s Court”. The right of appearance, once granted, allows the party to access all documents and “examine and cross-examine witnesses on matters relevant to the proceedings”.

The applicant is seeking other orders including interim parental responsibility with respect to the child:

  • the onus is on the applicant

  • the standard is on the balance of probabilities

  • in proceedings under the Care Act, any decision concerning a child must take into account the paramount principle of the safety, welfare and wellbeing of the child: s 9(1) of the Care Act

  • the statutory hierarchy of the permanent placement principles set out in s 10A of the Care Act must be observed where a parental placement is determined to be unsuitable

  • all proceedings in the Children’s Court should proceed to finality as expeditiously as possible, that is without unreasonable delay, in order to minimise the effect of the proceedings on the child and the child’s family: s 94(1) of the Care Act

  • the court has considered the documents and affidavit evidence filed and submissions

  • the applicant contends that …

  • the application is supported by the … for the following reasons …/ the application is opposed by the … for the following reasons …

  • the section requires the court to consider only whether leave should be granted, but prescribes that leave cannot be granted unless the court forms the opinion that the applicant has a genuine concern for the safety, welfare and well-being of the child or young person. It would be an error to consider separately from the overall question whether leave should be granted, whether a genuine concern has been established. The facts and circumstances pertinent to the expressed concern will almost inevitably be relevant to the exercise of the discretion. The overall facts before the court, including the relationship of the claimant to the child and the nature and gravity of the concern, should be considered as a whole. In the process of determining whether the occasion is appropriate for the grant of leave, the court should form (or not form) the opinion as to genuine concern

  • to exercise the discretion in favour of the grant of leave, the court must actually form an opinion that:

    1. 

    the person has a concern, and that concern is one which is for the safety, welfare and well-being of the child; and

    2. 

    the concern is genuine, that is:

    • real, meaning not artificial or contrived and not trivial, and

    • honestly held

  • whether a relevant factor involves subjectivity, objectivity or both will depend on the particular factor in the particular circumstances of the case

  • the issues in dispute/not in dispute are: …

Facts demonstrating whether the applicant has a genuine concern for the safety, welfare and well-being of the children

In EC v Secretary DFACS [2019] NSWSC 226, Sackar J found that the court has to be objectively satisfied from the totality of the evidence that such a genuine concern exists.

  • the nature of the relationship — current carers

  • subjective claims — set out in affidavits

  • actions taken — the provision of home, love and clear affection/not taken

  • role to be played — seeks PR till child turns 18.

Contrasted with:

  • disregards sibling shared placement

  • non-compliance with safety plan.

Alternate finding:

Delay

A grant of s 98 full party status will have greater potential to lengthen the proceedings than allowing a person to be heard for example, under s 87.

In Bell-Collins children v Sec FACS (2015) NSWSC 701, Slattery J stressed the significance of delay noting anything which is likely to unduly delay proceedings is an important relevant consideration.

It is argued that if other parties were added who would be permitted to put questions, make submissions and advance evidence on all issues in the proceedings, this would be likely to add considerably to the length of time that the proceedings would take and delay the hearing.

The submission responds to the objectives of the Care Act s 9(2)(c), that any consideration of “the paramount concern to protect children from harm and promote their development”. This will usually involve giving priority to bringing proceedings to finality as quickly as possible. Anything which is likely to unduly delay these proceedings is an important relevant s 98(3) consideration, noting s 94 requiring the court to proceed as expeditiously as possible:

  • age of child

  • delays have an impact on the well-being of a child due to future placement remaining uncertain

  • applicant basing their claims on hearsay allegation or misinformation

  • the issue of restoration has not yet been determined. The … contends that whether there is a realistic possibility of restoration of the children to the … has not been determined and the joinder application is premature and whilst the court is determining that issue delay will occur.

  • in AB & JB v The Secretary [2021] NSWDC 626 Levy J states:

    It hardly needs stating that delay in litigation of all kinds is best avoided, but especially so in relation to child care proceedings.

    In considering the potential impact of delay due to the conduct or involvement of a litigant, it is relevant to contextually stratify its causes on account of the conduct of the litigants seeking discretionary relief from the court.

    This is because disentitling conduct can weigh decisively against the exercise of the discretion that is sought to be invoked in this case: s 58(2)(b)(i) and (ii) of the Civil Procedure Act 2005. Those provisions apply to litigation once it is in this court. It therefore becomes relevant to examine past delays as well as future sources of delay in terms of those principles.

Contrasted with:

  • delay in making the application for joinder should not be seen to be a material delay

  • no undue litigation delay incurred on account of any conduct on the part of the applicant in the case management phase of the proceedings in this court, or during the course of the hearing of the appeal

  • in reality, litigation, properly conducted, takes time and appropriate preparation

  • the granting of leave necessarily means there will be a further element of delay. However, the issues at stake and the importance of the need for scrutiny and testing of nebulous evidentiary positions, decisively outweighs the articulated concerns about further procedural delay. This factor of delay is not a sufficient basis to require that the discretion to grant leave for joinder not be exercised: EC v Secretary, NSW DFaCS [2019] NSWSC 226 at [20].

Unique position

In Bell-Collins children v Sec FACS (2015) NSWSC 701 at [33]–[34], Slattery J noted that there will be circumstances when non-parties will be in a unique position to fill particular gaps in evidence that parties to the proceedings cannot. In certain circumstances it is in the child’s interest for such evidence to be tested thus joining that person can fill the evidentiary gap:

  • observations made — it is not just the written material that might be presented, but it is also the nuances of cross-examination that come to bear in the determination of such conflicting viewpoints as are likely to emerge at the hearing of this dispute

  • excluding a voice that had a detailed knowledge of the history in this particular case would not be acting in a way that ensures the safety, welfare and well-being of the children

  • they are relevant contradictors who are well placed to seek to forensically test contentious evidence.

In AB and JB v The Secretary [2021] NSWDC 626 Levy J states at [138]:

[it] would have the effect of denying to the child the benefit of the input of relevant contradictors, his maternal grandparents, in the process of testing the obviously nebulous elements within the foundations of Secretary’s case and care plan.

Contrasted with:

The applicants’ likely prospects of success

Justice Slattery agreed with the then President of the Children’s Court, Marien P, that the interpretation of “arguable case”, as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely, that an arguable case is a case that is “reasonably capable of being argued” and has “some prospect of success” or “some chance of success”.

Other factors are:

  • s 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles, see [2-2560]

  • Secretary is not considering the applicant as a placement option

  • should be by way of a placement assessment and application is premature.

Matters of public policy
Care Act, s 87

The other mode of appearance under the Care Act is under s 87. This section affords an “opportunity to be heard”.

The opportunity to be heard is not the opportunity to participate in the proceedings either as a party as of right (s 98(1)) or as someone given leave (s 98(3)). Thus, it does not follow that the opportunity to be heard includes the right to examine or cross-examine witnesses, at least generally. Cross-examination may still be permitted under s 87 but this is dependent on the circumstances.

Option — leave granted
Option — application refused

[2-2300] Assessment order

Last reviewed: May 2023

An assessment application under ss 53 and 54 of the Care Act is to be made to the court as soon as possible after establishment and is to be filed and served on all other parties no later than two days before the application is made to the court.

If unrepresented parties, the following text may be helpful:

The most comprehensive relevant documentation, on which to base the assessment, is provided to the authorised clinician conducting the assessment as soon as possible.

The clinic is not currently resourced to provide physical or medical examinations.

An assessment application under ss 53 and 54 of the Care Act must be in the prescribed Form 7 Application for Assessment Order.

Note:

An independent parenting capacity assessment, “Private assessment”, requires leave from the court for a clinician to see a child or documents. The court needs to carefully understand the risk of a child being over-assessed: see Re Bailey and Blake (No 2) [2012] NSWSC 394 per Rein J. A private assessment is very rare.

If the assessment application is supported by all parties

The assessment application:

  • consolidates multiple children in a sibling group into the one application

  • outlines the reasons why an assessment order is required

  • outlines the circumstances of the persons to be assessed

  • includes a brief list of issues to be addressed by the authorised clinician

  • identifies any specific expertise required of the authorised clinician conducting the assessment

  • includes contact details for parties to be assessed, their legal representatives, and the relevant caseworker or casework manager, and

  • lists all the documents upon which the assessment is to be based, including all relevant previous clinical assessments undertaken of the child, children or family.

Note:

If the court is asked to make an order appointing a particular person to prepare an assessment report then the court may recommend a clinician who might have specific expertise or someone similarly qualified.

If the assessment application is not supported by all parties

Note:

The hearing of a contested application for an assessment order must be no longer than two hours except in exceptional circumstances — to be heard expeditiously. Cross-examination will be allowed at such a hearing only in exceptional circumstances.

Assessment Hearing

The assessment application:

  • consolidates multiple children in a sibling group into the one application

  • outline the reasons why an assessment order is required

  • outline the circumstances of the persons to be assessed

  • includes a brief list of issues to be addressed by the authorised clinician

  • identifies any specific expertise required of the authorised clinician conducting the assessment

  • includes contact details for parties to be assessed, their legal representatives, and the relevant caseworker or casework manager, and

  • lists all the documents upon which the assessment is to be based, including all relevant previous clinical assessments undertaken of the child, children or family.

Note:

If the court is asked to make an order appointing a particular person to prepare an assessment report, then the court may recommend a clinician who might have specific expertise or someone similarly qualified.

[2-2320] Dispute resolution conferences — Practice Note 3

Last reviewed: May 2023

If there are unrepresented parties, the following text may be helpful:

If appropriate, more than one DRC may be held at different stages of the proceedings. Dispute resolution conferences are the most common form of Alternative Dispute Resolution (ADR) for care and protection cases in the Children’s Court. However, other forms of ADR can be used, including external mediation and Aboriginal care circles?

Ordinarily, if a party requests a DRC the court would approve the request. You may enquire as to how a DRC will assist, but it is mostly self-evident.

Note:

If a party does not wish to be involved in the DRC then they cannot be forced to attend however, it usually is in their best interest to attend and they should be encouraged to attend. Refer to a DRC if you think it will assist.

[2-2340] Hearing date sought

Last reviewed: May 2023

Is there an application for hearing date signed by all parties?

Have all directions of the court been complied with? (Including the parties attending an alternative dispute resolution conference).

Note:

Hearing dates will ordinarily only be allocated after the DRC has failed to settle the matter.

See https://childrenscourt.nsw.gov.au/childrens-court/forms-and-fees/forms-for-care-and-protection-cases.html for an application for hearing date form.

Note:

Complete clinician notification on Bench sheet.

Where an authorised clinician is required for cross-examination at the hearing, the party seeking such attendance should consult the authorised clinician, by contacting the Children’s Court Clinic and the other parties to determine the most appropriate date and time the authorised clinician is to attend. The party seeking the attendance of the authorised clinician must then notify the court of the authorised clinician’s availability when seeking a hearing date.

The Registrar of the court is to send a Notice to Authorised Clinician to attend court to the Director of the Children’s Court Clinic within seven days following the matter being set down for hearing.

Further standard directions apply — PN 5

The following further standard directions will apply in all contested hearings (other than a contested hearing on an interim order application or a contested hearing for leave under s 90) unless the court otherwise directs.

[2-2360] Readiness hearing

Last reviewed: May 2023

A readiness hearing is to be held one month prior to the hearing date.

If all possibilities of reaching agreement have been fully explored, and the issues to be addressed at the final hearing are clearly identified the hearing date is confirmed.

Children’s Court — Care
Readiness Hearing Checklist during COVID-19 pandemic
(IMPORTANT — This document is to be prepared through consultation between the Department of Communities and Justice and all other parties to the proceedings prior to the Readiness Hearing. It is expected that parties will have canvassed practical arrangements that might assist the hearing to proceed having regard to general government advice with regard to social distancing practices during the COVID-19 pandemic*)
Child/ren or young person/s name:  
Case number:  
Date and place of Readiness Hearing: / / CHILDREN’S COURT
How many parties will be involved in the hearing?  
Has a case management document been filed by each party? Yes

No

(If no, when it will be filed?)

Has all material/evidence/
reports to be relied upon been filed and served?

(including subpoena bundles and material agreed upon to be provided to expert witnesses, including an authorised clinician)

Yes

No

(if no, please specify when all material will be filed/served?)

What issues remain in dispute?  
Have all possibilities of reaching an agreement been explored? Yes

No

(if no, has a further DRC been sought?)

Have copies of birth certificates for each child been filed? Yes

No

(If not, why?)

Is any party/legal representative seeking to appear by video conference, including a party in custody?

If so, specify place of appearance and proposed video conference method.

 
Name of witness as set out in Application for hearing date filed. Witness required for cross-examination and estimated length of time.

Witness availability reconfirmed

(including days and times)

1. Yes / No min/hr Yes No
2. Yes / No min/hr Yes No
3. Yes / No min/hr Yes No
4. Yes / No min/hr Yes No
5. Yes / No min/hr Yes No
6. Yes / No min/hr Yes No
7. Yes / No min/hr Yes No
8. Yes / No min/hr Yes No
9. Yes / No min/hr Yes No
10. Yes / No min/hr Yes No
Do any witnesses have particular vulnerabilities due to age or pre-existing medical conditions?  

Is it appropriate/
practical for any witness, including experts, to give evidence by video conference?

If so, please specify place of appearance and proposed video conference method.

 

If an interpreter is required for a party or witness, what language and for whom?

If so, can suitable arrangements be made to properly assist the conduct of the hearing?

 

Does any party/witness seek to bring a support person to court?

If so, which party and how many support persons?

 
Is it proposed that another room within the court complex will be used for the hearing, such as the remote witness room or a room equipped with AVL facilities? Yes No If yes, has the availability of this room been discussed with the registrar?

Is there any evidence other than oral evidence that will be relied upon during the hearing?

Eg, Record of interview

If so, how is the evidence to be tendered/played if some parties/witnesses are not physically present?

 

Is there any objections to evidence or admissibility of any evidence which, once determined, may shorten the hearing?

 

Is there any negative impact on any persons involved in the case if the hearing is delayed due to Covid-19 concerns? Eg, stability of placement, health, including mental health and wellbeing of the child/ren and/or parents.

If so, whom?

 
Is a party likely to be prejudiced by conducting the hearing in the manner proposed?  
Do all parties agree with the proposed arrangements for the conduct of the hearing? Yes

No

(if no, please provide details)

Number of persons that will be physically present at court at any given time during the hearing? Parties  
Legal representatives  
Witnesses  
Support persons  
Total  

Estimated duration of hearing:

(including submissions)

HOURS/ DAYS
Readiness checklist prepared by Applicant/Respondent/Child Representative
Name:
Signed:
Date:
In consultation with:
Name: Applicant/Respondent/
Child Representative
   
   
   
   

*Social distancing practices include allowing for 1.5 spacing between court participants and a total of four square metres of floor space per person within a court room. This will vary depending on the size and configuration of the court room.

[2-2380] Final order — s 61 — supported by all parties and court agrees

Last reviewed: May 2023

Check the following:

  • service

  • orders are consistent with orders that a party not in attendance were advised of

  • matter is established

  • if finding has previously been made or required; otherwise:

    (a) 

    there is no realistic possibility of restoration within a reasonable period to the care of the mother/father with respect to the child

    (b) 

    there is a realistic possibility of restoration within a reasonable period to the care of the mother/father with respect to the child

  • Birth Certificate filed.

Note:

The MOCO will usually include s 82 order for at least one report but more appropriately two reports.

Section 82(2) states the report must:

(a) 

be provided to the Children’s Court within 24 months or such earlier period as the court may specify

The MOCO may include a s 76 order for supervision. If so, the court makes an order placing the child under the supervision of the Secretary.

Section 76(3A) provides that the Children’s Court may specify a maximum period of supervision that is longer than 12 months (but that does not exceed 24 months) if the Children’s Court is satisfied that there are special circumstances that warrant the making of an order of that length and that it is appropriate to do so.

Section 76(4) provides that the Children’s Court may require the presentation of the following reports

(a) 

a report before the end of the period of supervision stating the following:

(i) 

the outcomes of the supervision

(ii) 

whether the purposes of the supervision have been achieved

(iii) 

whether there is a need for further supervision to protect the child or young person

(iv) 

whether other orders should be made to protect the child or young person

(b) 

one or more reports during the period of supervision describing the progress of the supervision.

Note:

The MOCO may include a s 73 order for undertakings.

Final order — structure of proceedings

Option if no restoration
Option if no restoration
Option if no restoration
Option if no restoration
Option if restoration
Option
Decision option
Note:

Interim order regarding a variation or rescission application:

Where an application to vary or rescind an order is made but not determined, the court may make an interim order. An interim order may have the effect of varying the original order but not rescinding it. For a discussion of the nature of a leave application: see Re Edward [2001] NSWSC 284 and P Mulroney, “Preparing and running a section 90 case: a perspective from the Bench” (2008) 7 CLN.

Final order — guardianship

[2-2400] Section 90 application

Last reviewed: May 2023

First listing — usually an adjournment sought for instructions

Note:

Often most parties will seek an adjournment to get instructions. This is an application for the matter to be adjourned so instructions can be taken on the consideration of leave. If at least one party opposes the application, it is best to set a timetable as below:

Timetable

  • file and serve affidavits

  • responses

  • adjournment for compliance.

Second listing — s 90 leave supported by all parties and court agrees

Second listing if s 90 leave is not supported by a party or not agreed to be the court

Note:

The hearing of a contested application under s 90(1) of the Care Act must be no longer than two hours except in exceptional circumstances — to be heard expeditiously. Cross-examination will be allowed at such a hearing only in exceptional circumstances.

Leave hearing decision — s 90

Decision Option
Decision option
Directions
Note:

Section 90(2D): the Children’s Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process.

Section 90(2E): without limiting s 90(2D), the Children’s Court may dismiss an application for leave under this section if it is satisfied that —

(a) 

the application has no reasonable prospect of success, and

(b) 

the applicant has previously made a series of applications for leave under this section that the court has dismissed.

Note:

The court can consider a costs order but nothing else to deter the applicant from taking out a further application.

Final order s 90 — Long decision after leave is granted

Decision Option
Decision option
Decision option
Decision option
Note:

Interim order regarding a variation or rescission application

Where an application to vary or rescind an order is made but not determined, the court may make an interim order. An interim order may have the effect of varying the original order but not rescinding it. For a discussion of the nature of a leave application: see Re Edward [2001] NSWSC 284 and P Mulroney, “Preparing and running a section 90 case: a perspective from the Bench” (2008) 7 CLN.

Revisiting the issue of establishment or finding of no realistic possibility of restoration (NRPOR)

In Re Alistair [2006] NSWSC 411, Kirby J considered a finding made in the Children’s Court in relation to a finding pursuant to s 71(1) and held that, in the course of a hearing, where a ruling or determination is made, it is open to the court, before final orders, to revisit the issue if it is appropriate to do so.

The reasoning applies equally to a finding that there is no realistic possibility of restoration to a parent.

The discretion to set aside a properly made finding during the care proceedings is subject to a number of relevant considerations as identified by Kirby J, referring to Hale J’s (as she then was) decision In re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1 as follows:

(1) 

The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation — the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is a good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of the fact which turn out to have been erroneous; and (d) the court’s discretion, like the rules of the issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stifung v Rayner & Keeler Ltd. (No 2) [1967] 1 AC 853 at 947, “must be applied so as to work Justice and not injustice”.

(2) 

The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significance.

(3) 

Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reached different conclusion upon the same evidence. No doubt we would all be reluctant to allow a matter to be re-litigated on that basis alone. The court will want to know (a) whether the previous findings were the result of a full hearing in which the person concerned took part in the evidence was tested in the usual way; (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.

Delay

In Bell-Collins children v Sec FACS [2015] NSWSC 701, Slattery J stressed the significance of delay noting “anything which is likely to unduly delay proceedings is an important relevant consideration”.

The paramount concern to protect children from harm and promote their development will usually involve giving priority to bringing proceedings to finality as quickly as possible. Anything which is likely to unduly delay these proceedings is an important relevance:

  • delays have an impact on well-being of child due to future placement remaining uncertain

  • in reality, litigation, properly conducted, takes time and appropriate preparation

  • the granting of leave necessarily means there will be a further element of delay. However, the issues at stake and the importance of the need for scrutiny decisively outweighs the articulated concerns about further procedural delay.

The applicants’ likely prospects of success and matters of public policy

Justice Slattery agreed with the then President of the Children’s Court, Marien P, that the interpretation of “arguable case”, as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely, that an arguable case is a case that is “reasonably capable of being argued” and has “some prospect of success” or “some chance of success”. For example:

  • DCJ not considering applicant as a placement option possible Secretary may withdraw from their position

  • possible Secretary may withdraw from their position

  • the applicant did not appreciate the nature of the concession

  • the concession was not free and voluntary

  • there was mistake or other circumstances affecting the integrity of the concession

  • the concession was induced by threats or other impropriety.

[2-2420] Guardian ad litem: s 100 — child or young person

Last reviewed: May 2023

The primary right of appearance to parties in Children’s Court proceedings is granted under s 98.

(2)

However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A)

If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under s 100.

Under s 100(1) the Children’s Court may appoint a guardian ad litem for a child or young person if it is of the opinion that—

(1) 

(a) 

there are special circumstances that warrant the appointment, and

(b) 

the child or young person will benefit from the appointment.

(3) 

The functions of a guardian ad litem of a child or young person are—

(a) 

to safeguard and represent the interests of the child or young person, and

(b) 

to instruct the legal representative of the child or young person.

(4) 

A legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.

Decision

The legal practitioner must bring the circumstance or circumstances to the attention of the court as soon as is reasonably possible following the legal practitioner becoming aware of the circumstance or circumstances: PN 5.

Guardian ad litem and amicus curiae-parents — s 101

The primary right of appearance to parties in Children’s Court proceedings is granted under s 98:

(2)

However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A)

If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under s 101.

Under s 101 the Children’s Court may—

(a) 

appoint a guardian ad litem for either or both of the parents of a child or young person if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.

Circumstances that warrant the appointment of a guardian ad litem may include that the parent of a child or young person has an intellectual disability or is mentally ill.

The functions of a guardian ad litem of a parent of a child or young person are—

  • to safeguard and represent the interests of the parent, and

  • to instruct the legal representative of the parent.

A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.

[2-2440] Expedition and adjournments

Last reviewed: May 2023

Section 94 Expedition and adjournments

(4) 

The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that:

(a) 

it is in the best interests of the child or young person to do so, or

(b) 

there is some other cogent or substantial reason to do so.

[2-2460] Re-listing for non-compliance with directions

Last reviewed: May 2023

If any direction of the court is not complied with, the case may be relisted before the court by any party on 48 hours’ notice for further directions. The court may re-list a matter for further directions on its own motion if any direction is not complied with.

If it appears to a party that a hearing date is in jeopardy as a result of non-compliance with orders or directions of the court or because of intervening events, the party must immediately approach the court for the urgent re-listing of the matter before a judicial officer.

Failure to comply with directions of the court or PN 5 may result in an order for costs being made against the non-complying party in accordance with s 88 of the Care Act.

[2-2480] Vacate a hearing date

Last reviewed: May 2023

Any application to vacate a hearing date must be in writing on the prescribed Form 14 Application to vacate a hearing date and must state the reasons for the application. The party bringing the application to vacate a hearing must give reasonable notice to all other parties that an application to vacate is being made. When a hearing date has been allocated, it will not be vacated unless the party seeking to vacate the hearing provides cogent and compelling reasons.

Note:

Form 14 Application to vacate hearing, together with all relevant information, should be submitted in writing not less than 21 days before the hearing date or, in the case of urgent circumstances arising after that time, as soon as practicable before the date of hearing.

[2-2500] Emergency care and protection orders

Last reviewed: May 2023

46 Emergency care and protection orders

(1) 

The Children’s Court may make an order for the emergency care and protection of a child or young person if it is satisfied that the child or young person is at risk of serious harm.

(2) 

The order, while in force, places the child or young person in the care responsibility of the Secretary or the person specified in the order.

(3) 

The order has effect for a maximum period of 14 days, unless the order is extended in accordance with subsection (4).

(4) 

An order under this section may, while the order remains in force, be extended once only for a further maximum period of 14 days.

(5) 

If an application is made for the extension of an order under this section before the order expires, the order remains in force until the Children’s Court makes a final determination on the application, even if that occurs after the original expiry date.

Note:

If the Secretary forms the opinion that a child is in need of care and protection, he or she may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child: s 34(1).

Removal of a child into state care may be sought by seeking orders from the court (s 34(2)(d)), by the obtaining of a warrant (s 233), or, where appropriate, by effecting an emergency removal (s 34(2)(c)). See also ss 43 and 44.

Where a child is removed, or the care responsibility of a child is assumed, by the Secretary, he or she is then required to make a care application to the Children’s Court within 3 working days and explain why the child was removed: s 45.

Subpoena — PN 5

Parties must issue subpoenas as soon as is practicable after the proceedings are commenced so that documents can be produced and inspected in a timely manner and are available for the proper preparation of the case, including submission to experts.

The issuing party must endorse on the subpoena the proposed access orders sought by the party.

Where the subpoena has not been served or where no documents have been produced, the issuing party may seek a further return date from the court on the return of subpoena, or the Registrar of the court following the mention of the return of subpoena.

Where an application is to be made to set aside the subpoena by the producer or any other party or person with sufficient interest, written notice of the application stating the grounds for the application in broad terms only is to be provided to the court and the issuing party prior to the return date.

Where an application to set aside the subpoena is to be made the applicant and the issuing party are to attend the court on the return date. Where the producer or any other party objects to the access orders proposed by the issuing party written notice of the objection is to be provided to the court and the issuing party prior to the return date.

Where an objection to the proposed access orders is made and agreement is not reached between the parties prior to the return date the issuing party and the objecting party are to attend the court on the return date.

Where the documents have been produced and no objection to the proposed access orders has been raised the court may make orders in accordance with the proposed access orders in the absence of the parties subject to any application to set aside the subpoena. Before making an order for access in the absence of the parties under PN 5 [15.7] or [15.8], the court must be satisfied that r 30A(8) of the Children’s Court Rules 2000 has been complied with.

30A Form of subpoena

(1) 

A subpoena must not be addressed to more than one person.

(2) 

Unless the court orders otherwise, a subpoena must identify the addressee by name or by description of office or position.

(3) 

A subpoena for production must—

(a) 

identify the document or thing to be produced, and

(b) 

specify the date, time and place for production.

(4) 

A subpoena to attend to give evidence must specify the date, time and place for attendance.

(5) 

The date specified in a subpoena must be the date of the hearing to which it relates or any other date as permitted by the court.

(6) 

The place specified for production may be the court or the address of any person authorised to take evidence in the proceeding as permitted by the court.

(7) 

A subpoena must specify the last date for service of the subpoena, being a date not earlier than—

(a) 

5 days, or

(b) 

any shorter or longer period as ordered by the court and specified in the subpoena,

before the date specified in the subpoena for compliance with it.

(8) 

The party on whose application a subpoena for production is issued must cause copies of the subpoena to be served not only on the person addressed in the subpoena but also on all of the other parties to the proceedings.

Where a party is not represented by a legal practitioner access is to take place in the presence of a member of the registry staff. Photocopy access may only be provided to an unrepresented party with leave of the court.

If photocopy access is granted to any document produced on subpoena, it shall be a condition of photocopy access that the copy shall not be used for any purpose other than the proceedings for which the document has been produced, unless the court otherwise directs.

A subpoena for production cannot be issued after the matter has been listed for a contested final hearing, except with the leave of the court.

The producer may produce a copy of any document instead of the original document unless the issuing party has clearly indicated in the schedule of documents that the original document is required to be produced.

Subpoena — general order

Where proposed access orders have not been endorsed on the subpoena and no objection to access has been raised, the court may make the following standard access orders in the absence of the parties subject to any application to set aside the subpoena:

Note:

The subpoena needs to also be served on all parties: Children’s Court Rules 2000, r 30A(8).

Subpoena with proposed orders

Where proposed access orders have been endorsed on the subpoena and no objection to access has been raised the court may make the following access orders:

Where a party is not represented by a legal practitioner, access is to take place in the presence of a member of the registry staff. Photocopy access may only be provided to an unrepresented party with leave of the court.

Note:

The subpoena needs to also be served on all parties: Children’s Court Rules 2000, r 30A(8).

Subpoena — access is granted to legal practitioners only

Subpoena — access is granted to redacted documents

Possible objection to subpoena

[2-2520] Children’s Court may dispense with service — s 256A

Last reviewed: May 2023

256AChildren’s Court may dispense with service

(1) 

If the Children’s Court is satisfied that an unacceptable threat to the safety, welfare or well-being of a child or young person or a party to any proceedings would arise if any notice or other instrument required or authorised by this Act was given to, or any document served on, a particular person, the Children’s Court may make an order dispensing with the giving of notice or instrument to, or service on, the person concerned.

(2) 

An order under this section excuses every other person from the requirement to comply with any provision of this Act that requires notification to, or service on, that person.

Hear from the parties on this application.

Dispensing with service was commented on by the Supreme Court in Re Andrew [2004] NSWSC 842, Wood CJ said at [56]:

I am, however, satisfied that it is only in exceptional circumstances that the power to dispense with service could be exercised, that is, where service upon, or participation of, the parent in the proceedings, would unacceptably threaten the safety, welfare and well-being of the child. The power must be read in a way that reflects the need, in this context, to balance the interests of natural justice and those of the child. Moreover before it is exercised it would seem to be appropriate, if not essential, for a Separate Representative for the child to be appointed, who might place before the court any matter in opposition to the effective exclusion of the father from the proceedings.

Generally, evidence will be required that demonstrates the existence of an unacceptable risk before any order is made. It might be that careful redaction of documents so as to remove personal identifying information such as the location of the children or the mother will suffice to safeguard the safety of the children and might allow the father to participate in the proceedings. However, it’s a matter of fact and degree and redaction will not be appropriate where the very fact of the proceedings coming to the attention of the person against whom the order is sought will induce the unacceptable risk to the children. It is suggested that dispensing with service in those rare cases where the risk of harm to the children is unacceptable, will be the only appropriate course.

The Care Act also has provision for orders that would exclude certain persons from participating in the proceedings even where they have been served: see s 104A. This was discussed by Blewitt CM in DFaCs and the Marks Children [2016] NSWChC 2:

it would be an extraordinary step for this Court to rule that the father is not a “parent” and on that basis should be excluded from participating in the proceedings.

He rejected the argument that because the mother had sole parental responsibility arising from Family Law orders, the father did not fall within the definition of parent in s 3 of the Care Act. However, applying Re Andrew, above, in this instance, extraordinary circumstances did exist such as to exclude the father from the proceedings under s 104A.

In Re Jaden and Kalen (No 2) (unrep, NSWDC 16/4/18), Olsson SC heard an appeal brought by the ILR against an order of the Children’s Court refusing to dispense with service under s 256A upon the mother and two extremely violent partners. In setting aside the orders in respect of the mother (AA) and one of the fathers (CC), with whom the mother was still in a relationship (thereby representing an unacceptably high risk that documents would be disclosed to that father), her Honour took into account:

  • the likelihood of a heightened level of violence if CC learned of the complaints against him made by the mother and one of the children

  • any harm that befell the mother would have “an enormous impact on their lives and would make their precarious emotional repair and development even more compromised”

  • the violence upon the mother was of a very real and serious nature causing a neural impairment, physical bruising and other injuries

  • “The terror that has been instilled in at least one of the children suggests that it is more likely than not that the department would succeed in the application to have the children taken under the parental responsibility of the Minister”.

Additionally:

  • an order was made against father (with whom neither the mother nor CC had any relationship) prohibiting him from sharing information in the documents with the mother or CC.

  • it was ordered that the Secretary provide the mother and CC with a list of the child protection concerns so that they could respond in general terms

  • that the solicitors for the mother and CC remained bound by undertakings given by them in the Children’s Court not to disclose information contained in the documents

[2-2540] Exclusion of particular persons from proceedings — s 104A

Last reviewed: May 2023
(1) 

At any time while the Children’s Court is hearing proceedings with respect to a child or young person, the Children’s Court may direct any person (other than the child or young person) to leave the place where the proceedings are being heard.

(2) 

If any non-court proceedings are to be held with respect to a child or young person, the Children’s Court may direct any person (other than the child or young person) not to be present at the place where the proceedings are to be held at any time during the proceedings concerned.

(3) 

The Children’s Court may give a direction under this section only if it is of the opinion that it is in the interests of the child or young person that such a direction should be given.

(4) 

The powers exercisable by the Children’s Court under this section may be exercised even if the person to whom a direction is given is directly interested in the proceedings concerned.

[2-2560] Aboriginal or Torres Strait Islanders

Last reviewed: May 2023

If the child is an Aboriginal or Torres Straits Islander there are particular additional requirements to be addressed. The permanency planning must address how the plan has complied with the principles of participation and self-determination set out in s 13 of the Care Act: s 78A(3). It should also address the principle set out in s 9(2)(d) which requires that the child’s identity, language and cultural ties be, as far as possible, preserved. Proper implementation requires an acknowledgement that the cultural identity of an Aboriginal child or young person is “intrinsic” to any assessment of what is in the child’s best interests: DOHS and K Siblings [2013] VChC 1 per Wallington M at p 4.

It follows that the need to consider Aboriginality and ensure the participation of families and communities must be applied across all aspects of child protection decision making.

If the Children’s Court finds that a child is in need of care and protection, it may make a variety of orders allocating parental responsibility, or specific aspects of parental responsibility: s 79(1).

Aboriginal and Torres Strait Islander placement principles — s 78A

The Care Act expressly requires that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children with as much self-determination as possible, and to participate in decisions concerning placement. A general order for placement is laid out in s 13, which must be addressed in any permanency plan: s 78A(3).

In Re Kerry (No 2) [2012] NSWCA 127 at [75] per Barrett JA, the issue that arose in the Court of Appeal, as regards the Aboriginality provisions of the Care Act, was a somewhat technical one. The issue involved the interpretation of s 78A(4) of the Care Act, which provides as follows:

(4) 

If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non-Aboriginal or non-Torres Strait Islander person or persons, such an order should be made only—

(a) 

if no suitable permanent placement can be found with an Aboriginal or Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in s 13, and

(b) 

in consultation with the child or young person, where appropriate, and

(c) 

in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community,

(d) 

if the child or young person is able to be placed with a culturally appropriate family,

(e) 

with the approval of the Minister for Families, Communities and Disability Services and the Special Minister of State, Minister for the Public Service and Employee Relations, Aboriginal Affairs, and the Arts.

The Minister is not within the concept of Aboriginal or non-Aboriginal person for the purposes of the Care Act. It follows that where a permanency plan of the kind dealt with in s 78A(4) envisages “permanent placement through an order for sole parental responsibility” and that responsibility is to be allocated to the Minister, the circumstance on which the operation of that section is predicated (that is, parental responsibility of a non-Aboriginal person) is not satisfied and s 78A(4) does not impose any restraint upon the making of the order.

These principles were considered the Children’s Court in DFaCS (NSW) re Ingrid [2012] NSWChC 19.

The President reviewed the competing arguments: [36]–[48]. He then held that the court is expressly precluded from placing an Aboriginal child with non-Aboriginal carers, through an order for sole parental responsibility in favour of those carers, unless and until the required pre-conditions set out in s 78A(4) have been established.

He said that the juxtaposition of the word “only” with the word “should” in the phrase “such an order should be made only …” clearly indicates the mandatory nature of the requirements in s 78A(4): [49]. He said at [50]–[52]:

The Court is not compelled to make an order providing for permanent placement of an Aboriginal child with non-Aboriginal persons through an order for sole parental responsibility merely because the circumstances specified in the sub-section are satisfied. The Court retains an overriding discretion to accept or reject any permanency plan proposed, in accordance with the various principles set out in the Care Act, not the least being the principle that the safety, welfare and well-being of the child is paramount, the test being whether there is an unacceptable risk of harm to the child.

What the Court cannot do, however, is provide for the permanent placement of an Aboriginal child with non-Aboriginal persons through an order for sole parental responsibility in their favour unless and until the circumstances specified in s 78A(4) are established to the court’s satisfaction. In this sense, the matters set out in s 78A(4) are obligatory pre-conditions to the making of the type of order contemplated by the sub-section. The Court does not have a discretion to dispense with any of the pre-conditions specified, and each and every one of them must first be established before an order can be made.

It is the purposive construction that is clearly consistent with the objects and principles of the Care Act, in particular the Aboriginal and Torres Strait Islander Principles set out in Pt 2 of Ch 2. The court’s discretion is not usurped, in that the Court retains an overriding discretion to reject a proposed placement.

One of the interesting notions to emerge from the argument was the idea that “kinship” in the Aboriginal context may be wider than in the European concept. Section 13(1)(a), for example, talks about a kinship group “as recognised by the Aboriginal … community to which the child … belongs”. It is conceivable, therefore, as was the case in Re Ingrid, that the carer, though non-Aboriginal, might nevertheless be part of a kinship group recognised by the community to which the child concerned belongs. This notion has interesting connotations. The court will be insisting on compliance with the Aboriginal and Torres Strait Islander placement principles, so unless a cultural plan is prepared as part of the permanency planning, the court may well decline to expressly find that permanency planning has been appropriately and adequately addressed, and refuse to make any final care orders: s 87(7)(a).

Aboriginal and Torres Strait Islander principles — ss 11, 12, 12A, 13, 14

The Aboriginal and Torres Strait Islander principles are enshrined in Ch 2, Pt 2 Care Act.

Section 11(1) provides that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children with as much self-determination as is possible.

Proper implementation of the Aboriginal and Torres Strait Islander principles requires an acknowledgement that the cultural identity of an Aboriginal child is “intrinsic” to any assessment of what is in the child’s best interests: Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 at [116]–[117].

The principles are not simply a hierarchy of options for the physical placement of an Aboriginal child in out-of-home-care (OOHC) but are made up of five elements:

  • prevention

  • partnership

  • placement

  • participation,

  • connection.

These are aimed at enhancing and preserving Aboriginal children’s sense of identity, as well as their connection to their culture, heritage, family and community: Family is Culture Review Report 2019, p 250.

Particular principles regarding Aboriginal and Torres Strait Islander children and their special heritage are enunciated by s 13 and are reflected particularly in s 78A(3) and (4). Broadly speaking, these principles under s 13(1) provide that if Aboriginal and Torres Strait Islander children are to be removed from their parents, they should be placed with:

  • extended family members or, at least

  • members of their community or, if that is not practical

  • other Aboriginal and Torres Strait Islander persons residing nearby or, as a last resort

  • a suitable person(s) approved by DCJ after consultation with members of the extended family and appropriate Aboriginal and Torres Strait Islander organisations.

Identification

Section 5 provides the relevant definitions in relation to the identification of Aboriginal and Torres Strait Islander children. The decision of Hackett (a pseudonym) v Secretary, DCJ [2020] NSWCA 83, although relating to the Adoption Act 2000, provides guidance in respect of the application of s 5. “There is no requirement in order … to be an Aboriginal child for the child to have a specified proportion of genetic inheritance” and “descent is different from race”: Hackett per Leeming JA at [53]; [86]; Adoption Act, s 4(1), (2).

The late identification, or the de-identification, of children by DCJ can have consequences for planning and placement so, in cases where identification is an issue, the court will be assisted by timely evidence from the parties.

If a child has one Aboriginal and Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the principles of the Act: s 13(4). Arrangements must be made to ensure the child has the opportunity for continuing contact with the other parents’ family, community and culture: s 13(5).

In determining placement, account is to be taken of the child’s expressed wishes and whether they identify as an Aboriginal and Torres Strait Islander person: s 13(2).

In relation to placement with non-Aboriginal and Torres Strait Islander persons, no final order allocating sole parental responsibility for an Aboriginal and Torres Strait Islander child to a non-Aboriginal and Torres Strait Islander person may be made except after extensive consultation and with the express approval of the Minister for Aboriginal Affairs and the Minister for Community Services: s 78A(4).

Further, if an Aboriginal and Torres Strait Islander child is placed with a non-Aboriginal and Torres Strait Islander carer, the following principles are to determine the choice of a carer (s 13(6)):

(a) 

Subject to the child’s best interests, a fundamental objective is to be the reunion of the child with his/her family or Aboriginal and Torres Strait Islander community

(b) 

Continuing contact must be ensured between the child and his/her Aboriginal and Torres Strait Islander family, community and culture.

The Aboriginal and Torres Strait Islander placement principles under s 13 are an aspect of the important principle in s 9(2)(d) that a child’s cultural ties should be preserved when they are removed from their family. However, s 13(1) must not be blindly implemented without regard to the principle of paramountcy and the other objects and principles set out in ss 8 and 9: Re Victoria and Marcus[2010] CLN 2. In the exceptional case of Re Victoria and Marcus, the children were placed with carers who were not Aboriginal rather than their Aboriginal grandparents as the court found there was a real risk the grandparents would actively discourage the children from identifying with their Aboriginal cultural links, “contrary to the whole purpose and spirit of the Aboriginal Placement Principles set out in s 13(1)”: at [52].

The principles in s 13(1) do not apply to emergency placements to protect a child from serious risk of immediate harm, or to a placement of less than two weeks duration: s 13(7).

[2-2580] Parent capacity order — s 91B(b)

Last reviewed: May 2023

“Parent capacity order” means an order requiring a parent or primary care-giver of a child or young person to attend or participate in a program, service or course or engage in therapy or treatment aimed at building or enhancing his or her parenting skills: PN 10.

Procedure for listing applications for a parent capacity order

In the usual course an application for a parent capacity order is to be listed within 2–3 weeks of filing the application. Unless the parties are seeking consent orders on the first return date the application is to be referred for a Dispute Resolution Conference (DRC).

Practice Note 10 states hearing dates will ordinarily only be allocated after the DRC has failed to settle the matter: [7.1] Listing an application for Hearing.

If unrepresented, the following text may be helpful:

[2-2600] Overseas travel

Last reviewed: May 2023

[2-2620] Costs in care proceedings

Last reviewed: May 2023

Section 88 does not provide the court with power to award costs against a non-party such as a legal representative: Director General, DFaCS v Robinson-Peters, above, at [54].

Costs in care proceedings are not at large. The Care Act limits the power to make an order for an award of costs.

The standard of proof is on the balance of probabilities: s 93(4) Care Act.

The situations in which exceptional circumstances may be found are not exhaustively defined or limited by prior cases; the court may have regard to the particular circumstances of the case, including evidence adduced, conduct of the parties and the ultimate results: Secretary, DFaCS and the Knoll Children, above, at [26].

In Yacoub, Campbell J referred to San v Rumble (No 2) [2007] NSWCA 259 at [59], which referred in turn to R v Kelly [2000] 1 QB 198 at 208, which said:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] All ER 907 at 912–913.

Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].

In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland, above, at 912–913.

The policy basis behind the restriction on the power to award costs is self-evidently based in the notion that parties involved in care proceedings should have as full an opportunity to be heard as is reasonably possible, and should not be deterred from participating in such proceedings by adverse pecuniary consequences, the safety, welfare and well-being of the child being the paramount concern.

The underlying idea is of fairness, having regard to what the court considers to be the responsibility of each party for the costs incurred. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34]; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].

The “theme or flavour” of the categories of exceptional circumstances identified by courts clearly relates to the conduct of the parties and requires either deliberate improper/wrongful conduct, abuse of process or gross negligence or incompetence.

Acting upon a serious or fundamental error of fact, acting capriciously or deliberately attempting to frustrate or cause delay or expense to the applicant would be sufficient.

In SP v DoCS, Rein DCJ identifies the following types of matters which would or at least arguably might fall within the description of exceptional circumstances for the purposes of s 88 Care Act:

  • deliberate misleading of the court or opponents

  • other misconduct or wrongful conduct

  • contumelious disregard or orders of the court or the principles set out in s 93 of the Care Act (General nature of proceedings)

  • the raising of baseless allegations for which the party had no reasonable belief as to their existence

  • the raising of false issues that bear no relation to the facts or are contrary to clearly established case law

  • maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions

  • gross negligence in the conduct of a case at least where that has led to an extensive waste of the court’s time and that of other parties,

  • where the proceedings involve a blatant abuse of process and/or are both mischievous and misconceived.

Other examples of cases in which exceptional circumstances have been found to justify an order for costs include:

  • Re: A foster carer v DFaCS (No 2) [2018] NSWDC 71 (FACS knowingly relied on inadequate investigations)

  • Secretary, DFaCS v Tanner [2017] NSWChC 1 (Secretary’s care plan was “deliberately misleading” and “baseless”)

  • Secretary, DFaCS and the Knoll Children [2015] NSWChC 2 (Department’s handling of matter required carers to obtain separate legal representation)

  • Director General, DFaCS v Robinson-Peters [2012] NSWChC 3 (Mother ordered to pay father’s costs due to gross incompetence of legal representation)

  • Department of Community Services v SM and MM [2008] NSWDC 68 (Department’s appeal without grounds or merit)

  • acting upon a serious or fundamental error of fact, acting capriciously or deliberately attempting to frustrate or cause delay or expense to the applicant would be sufficient.

Decision option — order for applicant to pay costs

Decision option — order for applicant to pay costs

Decision option — costs order refused, proceedings not improperly commenced

Decision option — costs order refused, proceedings not inappropriately prolonged

Decision option — costs order refused, “exceptional circumstances” not demonstrated

Decision option — costs order refused, “exceptional circumstances” not demonstrated

[2-2640] Transferring a child protection order

Last reviewed: May 2023

231G When Children’s Court may make order under this Division

The Children’s Court may make an order under this Division transferring a child protection order to a participating State if—

(a) 

an application for the making of the order is made by the Secretary, and

(b) 

the child protection order is not subject to an appeal to the District Court, and

(c) 

the relevant interstate officer has consented in writing to the transfer and to the provisions of the proposed interstate order.

231J Children’s Court to have regard to certain matters

(1) 

The Children’s Court must not make an order under this Division unless it has received and considered—

(a) 

an updated care plan, if a care plan under s 78 was prepared in relation to the original care order, or

(b) 

in any other case, a report by the Secretary that contains the matters required by the regulations to be included in the report.

(2) 

In determining what order to make on an application under this Division, the Children’s Court must have regard to—

(a) 

the principles in s 9, and

(b) 

whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child or young person, and

(c) 

the fact that it is preferable that a child or young person is subject to a child protection order made under the child welfare law of the State where the child or young person resides, and

(d) 

any information given to the Children’s Court by the Secretary or otherwise concerning any sentencing order under any Act, other than a fine, in force in respect of the child or young person or any criminal proceedings pending against the child or young person in any court.

(3) 

The Secretary must provide to the Children’s Court an updated care plan or report referred to in subsection (1), in accordance with the rules of the Children’s Court.

(4) 

Other requirements concerning the hearing and the making of an application, and the form of a care plan, under this Division may be prescribed by the regulations.

Transferring a pending child protection order

231L When Children’s Court may make order under this Part

(1) 

The Children’s Court may make an order under this Part transferring a child protection proceeding pending in the Children’s Court to the Children’s Court in a participating State if—

(a) 

an application for the making of the order is made by the Secretary, and

(b) 

the relevant interstate officer has consented in writing to the transfer.

(2) 

The proceeding is discontinued in the Children’s Court on the registration in the Children’s Court in the participating State, in accordance with the interstate law, of an order referred to in subsection (1).

231M Children’s Court to have regard to certain matters

In determining whether to make an order transferring a proceeding under this Part, the Children’s Court must have regard to—

(a) 

the principles in s 9, and

(b) 

whether any other proceedings relating to the child or young person are pending, or have previously been heard and determined, under the child welfare law in the participating State, and

(c) 

the place where any of the matters giving rise to the proceeding in the Children’s Court arose, and

(d) 

the place of residence, or likely place of residence, of the child or young person, his or her parents and any other people who are significant to the child or young person (as referred to in s 9(2)(f)), and

(e) 

whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child or young person, and

(f) 

the fact that it is preferable that a child or young person is subject to a child protection order made under the child welfare law of the State where the child or young person resides, and

(g) 

any information given to the Children’s Court by the Secretary or otherwise concerning any pending criminal proceedings or sentencing order that is currently in force (other than a fine) in respect of the child or young person.

[2-2660] Order for supervision

Last reviewed: May 2023
Note:

See s 76(3A) which provides:

(3A)

The Children’s Court may specify a maximum period of supervision that is longer than 12 months (but that does not exceed 24 months) if the Children’s Court is satisfied that there are special circumstances that warrant the making of an order of that length and that it is appropriate to do so.

Note:

Also, s 76(4):

(4) 

The Children’s Court may require the presentation of the following reports—

(a) 

a report before the end of the period of supervision stating the following—

(i) 

the outcomes of the supervision,

(ii) 

whether the purposes of the supervision have been achieved,

(iii) 

whether there is a need for further supervision to protect the child or young person,

(iv) 

whether other orders should be made to protect the child or young person,

(b) 

one or more reports during the period of supervision describing the progress of the supervision.

[2-2680] Prohibition orders — s 90A

Last reviewed: May 2023
(1) 

The Children’s Court may, at any stage in care proceedings, make an order (a prohibition order) prohibiting any person, including a parent of a child or young person or any person who is not a party to the care proceedings, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility.

(2) 

A party to care proceedings during which a prohibition order is made may notify the Children’s Court of an alleged breach of the prohibition order.

(3) 

The Children’s Court, on being notified of an alleged breach of a prohibition order —

(a) 

must give notice of its intention to consider the alleged breach to the person alleged to have breached the prohibition order, and

(b) 

must give that person an opportunity to be heard concerning the allegation before it determines whether or not the order has been breached, and

(c) 

is to determine whether or not the order has been breached, and (d) if it determines that the order has been breached—may make such orders (including a parent capacity order) as it considers appropriate in all the circumstances.

(4) 

The person who is alleged to have breached the prohibition order is entitled to be heard, and may be legally represented, at the hearing of the matter.

[2-2700] Order for undertakings — s 73

Last reviewed: May 2023

The court, noting the history and identified risks, makes an order accepting the undertakings provided in writing, signed by the person giving it, and remaining in force before the day on which the child attains the age of 18 years to ensure the safety, welfare and well-being of the child.

Examples of such undertakings:

  • the parents keep DCJ officers informed of their place of residence and that of the child, and not change such address without first notifying such officers

  • the child be presented by the parents for all medical appointments

  • to comply with the terms of any contact order made by the court with respect to the child

  • not to consume alcohol 24 hours before contact with the child, and/or not to be under the influence of alcohol or any other substance during contact.

Applications on breach of undertakings under s 73(5)

On being notified of an alleged breach of undertaking the court:

(a) 

must give the parties an opportunity to be heard concerning the allegation, and

(b) 

is to determine whether the undertaking has been breached, and

(c) 

if it finds that the undertaking has been breached, make such orders as it considers appropriate in all the circumstances.

Applications on breach of supervision under s 77(3)

On being notified of an alleged breach of a supervision order the court must:

(a) 

must give the parties an opportunity to be heard concerning the allegation, and

(b) 

is to determine whether the order has been breached, and

(c) 

if it finds that the order has been breached, may make such orders as it considers appropriate in all the circumstances.

[2-2720] Withdrawal of care application

Last reviewed: May 2023

66 Leave to withdraw care application

(1) 

A care application may be withdrawn by the person who made the application with the leave of the Children’s Court.

(2) 

An application for leave to withdraw the care application must be accompanied by—

(a) 

a statement that indicates how the issues that caused the application to be brought have been resolved, or

(b) 

a care plan that specifies how those issues are proposed to be addressed.

[2-2740] Apprehended violence order

Last reviewed: May 2023

40A Apprehended violence order may be made in care proceedings

(1) 

The Children’s Court may, during care proceedings, make an apprehended violence order for the protection of—

(a) 

the child to whom the care proceedings relate, or

(b) 

any person who is a relative of, or who resides on the same property as, the child, or may vary or revoke any existing order that protects any of those persons.

(2) 

The Children’s Court may make, vary or revoke an order on the application of a party to the care proceedings or on its own motion if the court considers that the circumstances justify making, varying or revoking the order.

(3) 

The Children’s Court is not to make or vary an order under this section that protects a person if the court is aware that the defendant is subject to criminal proceedings before another court and those criminal proceedings arose out of some or all of the circumstances that justify the making of the order.

(4) 

Before making, varying or revoking an order under this section, the Children’s Court is to notify the Commissioner of Police and the Secretary of the Department of Family and Community Services and give the Commissioner and Secretary standing to appear in the proceedings.

(5) 

Before varying or revoking a police-initiated order under this section the Children’s Court is to notify the Commissioner of Police and give the Commissioner standing to appear in the proceedings.

(6) 

Sections 48(3) and 72B do not apply to an application made under subsection (2).

(7) 

The parties to the care proceedings and the defendant against whom the apprehended violence order is proposed to be made all have standing to appear in respect of the making of the apprehended violence order.

Refer to s 40A(8) and (9) also.

The court may make an order on its own motion during care proceedings. There may be a general reluctance in becoming an applicant, possibly a witness, the judge of fact and ultimately the maker of an order whilst dealing with the substantive care application. The police are resourced to take out AVO’s and they run the risk of a possible costs order.

[2-2760] Applications for contact orders under s 86

Last reviewed: May 2023

See Contact guidelines for magistrates at [6-2000].

How will the child benefit? Some benefit may be over the long term, ie, providing the foundation for a relationship which will develop later.

Check if leave is required

The Wood Special Commission of Inquiry into the Child Protection Services in NSW reviewed the current system of making contact orders and concluded:

The Inquiry is of the view that, on balance, the Children’s Court should retain its power to make contact orders with respect to those children and young persons about whom the court has accepted the assessment of the Director-General that there is a realistic possibility of restoration. For all other children and young persons, that is those where the court has accepted that there is no such possibility, the court should have no power with respect to making orders as to contact.

Currently the Children’s Court has the power to make contact orders in accordance with s 86 Care Act.

Be cautious in making contact orders in matters where there is no realistic possibility of restoration to the parents. If parental responsibility is not with the Minister then the Department should assist in implementing any contact arrangements if needed.

Contact orders

86 Contact orders

(1)

An order may be made by the Children’s Court doing any one or more of the following—

(a) 

stipulating minimum requirements concerning the frequency and duration of contact between a child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b) 

requiring contact with a specified person to be supervised,

(c) 

denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

(1A)

A contact order may be made by the Children’s Court—

(a) 

on application made by any party to proceedings before the Children’s Court with respect to a child or young person, or

(b) 

with leave of the Children’s Court—

on application made by any of the following persons who were parties to care proceedings with respect to a child or young person—

(i) 

the Secretary,

(ii) 

the child or young person,

(iii) 

a person having parental responsibility for the child or young person,

(iv) 

a person from whom parental responsibility for the child or young person has been removed,

(v) 

any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person, or

(c) 

with leave of the Children’s Court — on application made by any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.

(1B)

The Children’s Court may grant leave under subsection (1A)(b) or (c) if it appears to the court that there has been a significant change in any relevant circumstances since a final order was made in the proceedings.

(1C)

The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1A)(c) unless it considers the person to have a sufficient interest in the welfare of the child or young person.

(1D)

Before granting leave under subsection (1A)(b) or (c), the Children’s Court—

(a) 

must take into consideration whether the applicant for the contact order and persons to whom the contact order applies have attempted, or been ordered by the Children’s Court to try, to reach an agreement about contact arrangements by participating in alternative dispute resolution, and

(b) 

may order the applicant and those persons to attend a dispute resolution conference conducted by a Children’s Registrar under s 65 or alternative dispute resolution process under s 65A.

(1E)

Subject to any order the Children’s Court may make, an applicant for a contact order under subsection (1A)(b) who was a party to care proceedings must notify other persons who were parties to the proceedings of the making of the application.

Note:

Section 256A sets out the circumstances in which the Children’s Court may dispense with the requirement to give notice.

(1F)

A contact order made under subsection (1A)(b) on application of a person who was a party to proceedings in which an earlier contact order was made that has expired may be made in the same or different terms to the expired order.

(2)

The Children’s Court may make an order that contact be supervised by the Secretary or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Secretary’s or person’s consent and must not be made in relation to contact with a child or young person who is the subject of a guardianship order.

(3)

An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

(4)

An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

(5)

A contact order made under this section has effect for the period specified in the order, unless the order is varied or rescinded under ss 86A or 90.

(6)

Despite subsection (5), if the Children’s Court decides (whether by acceptance of the Secretary’s assessment under s 83 or otherwise) that there is no realistic possibility of restoration of a child or young person to his or her parent, the maximum period that may be specified in a contact order made under subsection (1A) concerning the child or young person is 12 months.

(7)

Subsection (6) does not apply to a contact order made on the application of a former party to proceedings in which an earlier contact order was made that has expired.

(8)

Subsection (6) does not apply to a contact order concerning a child or young person who is the subject of a guardianship order if the Children’s Court is satisfied that a contact order of more than 12 months duration (for example, a contact order for the duration of the guardianship order) is in the best interests of the child or young person.

Contact considerations

Identify the Risk of harm Assess the seriousness of the risk — in the context of the severity of possible consequences The likelihood of the risk occurring Whether that risk might be satisfactorily managed or otherwise ameliorated and the likelihood of compliance Balanced against the possibility of benefit to the child Test
 

Scale:

  • insignificant

  • minor

  • moderate

  • major

  • catastrophic

Scale:

  • rare

  • unlikely

  • possible

  • likely

  • very likely

  • inevitable

Examples:

  • in custody

  • restricted by DCJ

  • supports

  • scaffolding

  • treatment

  • training and education

  • AVO under s 40A under the CDPVA

The majority of children are raised by their parents, the relationship between parent and child is one of the closest, if not the closest, of all relationships and the mere fact of the relationship will invariably receive substantial weight in any given case. To protect the child’s paramount interests the proper test to be applied is that of “unacceptable risk” to the child to be assessed from the accumulation of factors proved.

In addition some studies have found that contact with birth families may lead to:

  • multiple attachments create confusion for children or conflict of loyalties

  • the threat of harm to the child or to the new parents may undermine the placement

  • birth parents need to be helped towards closure as the best way of dealing with feelings of loss and guilt

  • demands placed on new parents adversely affect the recruitment of new adopters

  • it is too risky to make such complex placements without adequate professional skills and resources which need to extend far beyond adoption

  • the push for contact arises less from the evidence on benefits than from professional desires to undo the pain of separation or because they themselves feel they have failed the birth family

  • continuation of unhealthy relationships, eg inappropriate dominant or bullying relationships, or controlling relationships

  • undermining the child’s sense of stability and continuity by deliberately or inadvertently setting different moral standards or standards of behaviour.

  • experiences lacking in endorsement of the child as a valued individual eg, where little or no interest is shown in the child himself, or contact where the parent is unable to consistently sustain the prioritisation of the child’s needs

  • unreliable contact in which the child is frequently let down or feels rejected, unwanted and of little importance to the failing parent

  • where a child is continuing to attend contact, even though expressing a view that he/she doesn’t want the contact, can make the child feel undermined

     
  • Contact encourages reunification with the birth family

  • Contact maintains/
    encourages attachment to the birth family

  • Contact prevents idealisation of the birth family

  • Contact maintains links and cultural identity

  • Contact enhances the psychological well-being of the children in care

  • Contact is a means by which the quality of the relationship between the birth family and the child can be assessed

 
  • undermine the placement with another carer

    contact is closely supervised contact will need to be sufficiently frequent to maintain or develop the relationship between the parent and child.  
  • distance and cost of contact

    Parents can travel the child understands who they are in the context of their birth family and cultural background.  
  • the concern that this model addresses is that potential adoptive parents will be deterred from adopting by the prospect of having to accommodate continuing contact with the natural family

      help ensure that they have a realistic understanding of who the parent is and do not idealise an unsuitable parent and develop unrealistic hopes of being reunited with them  
  • children and carer families will have their own commitments and patterns

   

Visitation can be a positive intervention for the entire family and can promote successful reunification.

Visits reassure children that their families are alive and well and still care about them. Frequent contact with parents can reduce children’s anxiety associated with separation. Other types of contact, including exchange of phone calls, cards, and letters, will also serve this purpose.

Frequent visitation reassures parents that the agency is committed to maintaining and strengthening family relationships.

Visits present the caseworker with a valuable opportunity to help family members identify their needs and strengths. By observing family members together, the worker can elicit important information about the quality of the parent-child relationship, as well as gain insight into the parents’ developmental needs, motivation, and capacity to resume care of their children.

Family visits can be used as interventions to achieve specific objectives. For example, foster or relative caregivers may use visits to model parenting skills and to share child management strategies. During visits, parents can practice newly acquired parenting strategies and can receive immediate, constructive feedback and coaching from the caseworker or caregiver.

Visits may help parents understand the importance of permanency for their child. The visits can help them make a final decision regarding whether they want to diligently pursue reunification or relinquish their parental rights, thereby allowing their child to achieve permanency through another plan, such as adoption or guardianship.

Sibling visitation allows these important relationships to be maintained, even when siblings must be placed in separate homes.

Visitation with extended family is encouraged whenever possible. Extended family connections are important to the child’s development and often serve as alternative permanency plans if reunification does not take place.

   
  • it is important to ensure that a child is not made to feel greatly different from others in the household because they are at contact rather than carer family events.

         
  • it is also important that the child does not resent attendance at contact because it takes them away from something that they enjoy doing

         
  • general risk, child not safe, D&A

         

[2-2780] Resources

Last reviewed: May 2023