Care and Protection Lawyer

Care and protection cases commence by way of filing of an application at a Children’s Court registry.

Once an application is filed, the proceedings must be listed within three days before a Children’s Court.

The Department is a party to all proceedings in the care and protection jurisdictions. .

Ordinarily, the parties to the proceedings will be:

The Department;
The parent or parents of the child;
The child’s representative.
A person who can show a genuine concern and interest in the safety, welfare and well-being of a child may apply to become a party to the proceedings. That is an application is not automatically granted and there are tests under the legislation that need to be met before someone is joined as a party.

If a child or young person is living with someone other than a parent or parents, it may be that the person who was caring for the child immediately prior to the proceedings commencing is also a party, but that will depend on the circumstances of the matter.

The proceedings are not the same as Family Law matters, although they deal with the interests of children and family dynamics. The Family Court usually deals with private matters and disputes between families, in general terms, the care and protection jurisdiction usually deals with matters concerning the State and the family.

The Department may elect to intervene in Family Law proceedings also but that is a separate jurisdiction and discrete from care and protection proceedings.

The focus of the proceedings is the safety, welfare and well-being of the child or children the subject of the proceedings. The Court has the ability to make numerous types of orders and findings concerning children, including, but not limited to the following:

a. Interim care orders – orders that operate until they are varied by the Court (changed) or final orders are made. Interim orders may deal with issues of short-term parental responsibility and other matters including orders for supervision.

b. Orders accepting undertakings – undertakings are effectively promises to the Court to undertake or not do certain things. A breach of undertaking can result in proceedings being re-listed.

c. Orders for supervision – that is supervision of a child/children.

d. Orders allocating parental responsibility for a child or young person on a final basis – often referred to as the making of Final Orders.

e. Contact orders – these are orders regarding the time a child spends with a parent, sibling, other relative, or family members. Contact orders are not available in circumstances where the Department or the government agency with case management is to facilitate and coordinate contact for the child and their family.

f. Guardianship Orders – generally, these are orders allocating parental responsibility for a child to a family member as an alternative to allocating parental responsibility to the Minister.

The Court’s primary function is to consider how the safety, welfare and well-being of the child or children the subject of the proceedings may be best served through the orders the Court is capable of making.

The other functions of the Court involve numerous considerations – such as whether a child in long term out of home care should have contact with her or her birth parents and what that contact might look like – for example, will it be supervised and if so, by whom?

The Court is also tasked with determining parental responsibility – that is, who should make decisions of the child or children if their parents are not found presently to provide adequate care for them.

We use the term “out of home care” as the proper term that is used to refer to a child who is placed with authorised carers. You might be more familiar with the term “foster care”.

The primary focus of court proceedings is child protection: considering the safety, well-being, and welfare of the child, children, or young persons, making sure they’re kept from any serious harm.

At first instance, care and protection disputes are heard by a Magistrate in the Children’s Court. The Magistrate is referred to as “Your Honour” in the proceedings.