Child protection, the Children’s Court and the Family Court

The role of child protection

Under the Act, child protection or an authorised Aboriginal agency provides services to protect children and young people from significant harm.

Child protection or an authorised Aboriginal agency will take all reasonable steps to enable the child or young person to stay at home with their own family, where it is safe to do so. However, some children and young people are placed in out-of-home care for their own safety.

When a child needs an out-of-home care placement, it is a legislative requirement that kinship care be investigated before other out-of-home care placement options are pursued.

The Aboriginal Child Placement Principle requires that preference be given to Aboriginal extended family or relatives, or where this is not possible, other extended family or relatives are the next preferred care option for an Aboriginal child or young person.

The role of the Children’s Court

In Victoria, the Family Division of the Children’s Court decides whether a child or young person is in need of protection, and makes the appropriate protection order. Court proceedings are almost always initiated by child protection.

In some circumstances, a child or young person may be placed in care by a bail justice. A bail justice hearing occurs when a child or young person is taken into emergency care and the court will not be sitting within 24 hours. The emergency care application is then heard in the Children’s Court on the next working day.

The Family Court of Australia is separate from the Children’s Court and administers Australia’s family law. A protection order takes priority over a Family Court order.

Protection orders

The child or young person in your care may be on one of the orders in Table 4, made by the Children’s Court for the protection and care of children and young people. As a carer, you can expect to know what has been decided by the Court. Speak to the child or young person’s child protection worker or agency case manager about this.

Table – Types of protection orders

Interim accommodation orderThis order is made when the magistrate at the Children’s Court believes there are issues to be resolved about a child or young person’s safety and wellbeing. The order specifies where they will live until the next court date.
Family preservation orderThe Court will make a family preservation order when it has decided that a child or young person is in need of protection, and can safely stay in parental care while the protective concerns are being addressed. The child or young person will live with one or both parents, with no change to parental responsibility for them. The department will supervise them.
Family reunification orderThe Court has decided that a child or young person is in need of protection and cannot safely stay in their parents’ care while the protective concerns are being addressed.
The family reunification order grants parental responsibility for the child or young person to the Secretary of the department or Principal Officer of an Aboriginal agency, but a parent’s agreement must be sought for any decisions about major long-term issues. This order will usually include conditions.
Care by Secretary orderThe Court has decided that family reunification will not be achieved in a timely way for the child or young person, or the child or young person has been in out-of-home care for more than 24 months and cannot safely return to their parents’ care.This order is made for a period of two years and the Secretary of the department or Principal Officer of an Aboriginal agency has parental responsibility for the child or young person, to the exclusion of all others. This order does not include conditions.
Long-term care orderThe Court has decided that the child or young person is in need of long-term care and there is a suitable carer available to raise the child or young person. Under this order, the Secretary of the department or Principal Officer of an Aboriginal agency has parental responsibility for the child or young person, to the exclusion of all others, until the child or young person turns 18 or marries, whichever happens first.
Permanent care orderThe Court has found proposed permanent carers suitable to have parental responsibility for the child or young person, to the exclusion of all others, until the child or young person turns 18 or marries, whichever happens first.Apart from the care allowance, once this order is issued, the department has no further role with the child or young person or carers. The order must include a condition that a person caring for a child or young person must, in the best interests of the child or young person, preserve their identity and connection to their culture of origin, and their relationships with their birth parents and family, unless the Court decides otherwise.
Undertaking – protection orderThe Court has decided that a child or young person is in need of protection and that future risks can be sufficiently managed by the parent and child or young person with community support. The undertaking may include conditions. The department does not stay involved when an undertaking is made. An undertaking may require the child or young person, their parent(s) or the person with whom the child or young person is living, to undertake in writing to do, or refrain from doing, actions specified in the undertaking. An undertaking can only be made if the person entering into the undertaking consents to the order.

Attending Children’s Court hearings

The court process can be a complex and stressful time for children and young people, but it can also be daunting for you and the child or young person’s parents.

Attendance by kinship carers

Making a decision as the carer to attend court can be complicated, and may not be in the best interests of you or the child or young person. You will need to consider this carefully, and discuss your decision with child protection or your agency.

Party to proceedings

It is not generally necessary for kinship carers to become parties to proceedings. For example, where the department’s recommendation to the Children’s Court is consistent with the views of the kinship carer, it would not usually be necessary for them to be joined as parties to proceedings.

Other factors to consider may include:

  • that by joining the proceedings, kinship carers would be expected to fully participate in the proceedings, which may mean significant time and financial commitment, such as the requirement to attend multiple hearings
  • the impact on the relationship between the kinship carer and other family members, if the kinship carer joins the proceedings and advocates for a position that is contrary to the views of the parents, the child or young person, or other family members.

You are not automatically a party to proceedings. However, if you want to be joined as a party, you will need to satisfy the Children’s Court that you have a ‘direct interest in the proceeding’ and that it is practicable for you to be joined.

If you want to apply to be joined to the proceeding, you need to inform registry staff on the morning of the court case, notify the department of your application and make an oral application to the magistrate in open court. All parties to the case will be asked to indicate whether they agree or disagree with your application. If the magistrate grants your application, you will be given time to seek legal representation if you wish.

Attendance by the child or young person

All children and young people should be given the opportunity to decide whether or not to attend court. They are not required to attend unless they:

  • wish to do so
  • are ordered by the Court to attend.

All children and young people aged 10 years or older will be legally represented in proceedings in the Family Division of the Children’s Court, except where the Court determines that the child or young person is developmentally not able to provide instructions. A child under 10 years, or a child over 10 years or more whom the Court has determined is not able to give instructions, may be legally represented, if the Court determines it is in the best interests of the child or young person.

If the child or young person decides not to attend court, they must still provide their instructions to a legal representative, and this is arranged away from the Court by their child protection worker or agency case manager. Phone instructions may be provided with the prior agreement of the child or young person’s legal representative.

Aboriginal children and young people may be represented by the Victorian Aboriginal Legal Service or the Aboriginal Family Violence Prevention and Legal Service.

If the child and young person is required or chooses to attend the Court, they may see their parents, siblings or other family members. If this is a concern for them, discuss this with child protection or your agency, so that plans can be made to support them. If a child or young person does decide to go to court, or is required to attend, child protection or the agency will arrange to transport them.

Preparing a child or young person attending court

To help children and young people who want to attend court, find out some details, such as:

  • who will be at court – family members, lawyers and court staff
  • what everyone’s role is in court – the magistrate, the clerk and lawyers
  • what the department is recommending about their care and why
  • what will be expected of them
  • how long the process will take.

Supporting the child or young person when they attend court

A child or young person in your care may need a lot of support from you if they have to attend court. While at court, they may hear discussions about why they are not living with their parents or other family members. This could be upsetting to them and they may need extra emotional support following court. You should also prepare the child or young person for the possibility that their parents may not attend court.

If a child or young person is required or wishes to attend court, there are strategies you can use to help them lessen feelings of being stressed, pressured, confused or bored. For example, take quiet activities to court, such as colouring or reading, and some snacks and drinks, as there can be lengthy waiting times. Talk to the child or young person’s child protection worker or agency case manager if you think the child or young person is feeling stressed or pressured.

The child protection worker or agency case manager will advise you and the child or young person of the outcome of the proceedings. You may find that the child or young person does not fully understand the outcome and have more questions. If you find this is the case, please raise any questions with the child or young person’s child protection worker or agency case manager.

Children’s Court processes

At court, legal representatives for child protection or the authorised Aboriginal agency, the child or young person, and the parents of the child or young person will advocate on behalf of their client and present their client’s views about the child or young person’s ongoing care. The magistrate makes a decision based on the information presented.

Child protection or the authorised Aboriginal agency will prepare a detailed report for the Court that outlines their assessment of the family situation, their recommendations about care for the child or young person, and the type of protection order they think is best for them. Also submitted to the Court at this time is the child or young person’s case plan, which covers significant decisions about the child or young person.

Child protection or the authorised Aboriginal agency base their report and case plan on information gathered from many sources, including you as the primary carer. You are in the unique position to gain insight into the needs of the child or young person in your care. You can present your views during care team meetings, or you can advise child protection or your agency about your views.

Child protection or the authorised Aboriginal agency cannot give a copy of the court report to you, an agency or other service, including the police, without consent of the child or young person, or their parents. This means copies of the court reports are not automatically provided to you.

When asked for a child or young person’s protection order

You may be asked by childcare, schools or other professionals for a copy of the child or young person’s protection order. Let them know they can ask for that directly from child protection or the authorised Aboriginal agency, or you could ask the child or young person’s child protection worker or agency case manager to provide this information.

Voluntary involvement with child protection

Kinship care placements instigated by child protection may or may not involve an order made through the Children’s Court.

Where there is no order in place and a child protection intervention has occurred, the carer has been assessed and approved, and the placement has been endorsed by child protection. An order may not be required if the parents consent to the placement, but where there would be significant concerns for the child or young person if they were to return to their care. In this circumstance, child protection have assessed that the kinship placement is required.

The Family Court

The Family Court hears matters under the Family Law Act 1975. In Victoria, there are Family Courts located in Melbourne and Dandenong, and circuit Court sittings are held periodically in major country centres. The Family Court can make orders in relation to parental responsibility, with whom a child or young person should live, or spend time and communicate with, and the financial support of a child or young person.

The Family Court also has jurisdiction to make orders relating to the welfare of children. In deciding whether to make an order relating to the welfare of a child, the Court must regard the best interests of the child or young person as the paramount consideration.

Family Court orders and agreements

Parenting order

A parenting order is a set of orders made by the Court about parenting arrangements for a child or young person. Kinship carers can apply for parenting orders. A court can make a parenting order based on an agreement between the parties or after a court hearing or trial. When a parenting order is made, each person affected by the order must follow it.

Agreements

If you reach an agreement with the parents, then you can make a parenting plan or file consent orders through the Family Court.

A parenting plan records arrangements that you and the parents agree to, and often these are made with the help of a family mediator. A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by the Court. Contact your nearest Family Relationship Centre for more information.

A consent order is a written agreement that is approved by the Court, so it becomes an enforceable court order. You will usually need to seek legal assistance to do this, as consent orders are often used when there are court proceedings occurring in relation to a child or young person.

If the parents do not want a written agreement or you cannot reach agreement about certain issues, you can obtain legal advice about your options, which may include initiating court proceedings for a parenting order. If you want a legally enforceable agreement, you will need to get legal advice or contact a Family Relationship Centre in your area. For more information, contact the Family Relationship Advice Line. Call 1800 050 321 or visit https://www.familyrelationships.gov.au/Services/FRAL/Pages/default.aspx.

Court cases can be emotionally and financially draining, so careful thought that is guided by sound legal advice is strongly recommended. Remember to ask for an estimate of costs, and consider how and when payment will be made.

Complying with orders

Orders made through the Family Court will usually include orders about who the child or young person will have regular contact with and how often, unless it is considered not to be in their best interests. As a carer, you are required to adhere to the orders and assist the child or young person to do so, even if this is difficult.

If you have ongoing concerns or problems with the arrangements that cannot be resolved, you should seek legal advice. If you have serious and immediate concerns about the safety of the child, you should contact the police or child protection.

Child protection and Family Court orders

If there are Family Court orders in place and child protection receive a report that a child or young person is at risk of significant harm, they will investigate these concerns. If the child is in need of protection, a Children’s Court order will take precedence over an order of the Family Court.

Getting legal support and advice

You may wish to seek legal advice to help you understand your legal rights and responsibilities, and explain how the law applies to your case.

Legal advice is available from:

  • legal aid
  • a community legal centre
  • a private law firm.

For further information about options available to you, visit the Department of Justice and Regulation website at <https://www.justice.vic.gov.au/>.

The Court Network provides support, information and referral to persons attending court. You can contact the Court Network Telephone Information and Referral Service by calling 1800 681 614 or visit https://www.courtnetwork.com.au


Useful resources

Children’s Court – call (03) 8638 3300 or visit https://www.childrenscourt.vic.gov.au/ 

Country Courts where Children’s Court matters are heard www.childrenscourt.vic.gov.au/about-us/court-locations/country-courts

Legal representation for children and young people – see the Child Protection Manual https://www.cpmanual.vic.gov.au/advice-and-protocols/advice/court/preparation-court/legal-representation-children 

Victorian Aboriginal Legal Service https://vals.org.au/about/

Aboriginal Family Violence Prevention and Legal Service Victoria – call 1800 105 303 or visit https://www.fvpls.org/

Metropolitan Courts for locations of Children’s Court matters https://www.childrenscourt.vic.gov.au/about-us/court-locations/metropolitan-courts

Relationships between family law and child protection – see the Australian Law Reform Commission www.alrc.gov.au and go to the Publications section to access The intersection of child protection and family laws

Family Court of Australia https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home

Family Relationship Advice Line – call 1800 050 321 or visit https://www.familyrelationships.gov.au/Services/FRAL/Pages/default.aspx

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