“My biggest mistake, and if I could ever help a family that even is getting the slightest feeling that they’re going to get looked at, your best bet is to go get legal advice straightaway. Because they [DCJ] don’t give you nothing. There is nothing in place. They make you believe that they can do whatever they want, and you’ve got no rights.”
– Parent, Bring Them Home, Keep Them Home research
– Parent, BTHKTH research
“I’ve always just said that I was so lucky to have the lawyer that I had that advocated for me and was quick thinking. He called for a recess straightaway as soon as she changed her mind on stand, and took that time…to figure out a plan on how to change her mind on the stand, and showed the judge that she wasn’t credible in any way…”
– Parent, Bring Them Home, Keep Them Home research
Legal representation is when a lawyer is acting under your instructions and doing things for you like writing to DCJ or handling your Court matters. Lawyers should listen to you, outline all of your options, offer expert legal advice on how to fight for you and your child, explain legal and court processes, and follow your instructions. They should also keep your information private unless you instruct them differently. They are not mandatory reporters but are required to explain to you when your information is not confidential, like threatening to commit a crime such as causing physical harm to someone. Services a lawyer is legally required to provide you are covered under ‘client legal privilege.’ Aboriginal parents have said they think it’s important to tell your lawyer everything so they have the full picture, and they can give you the best legal advice.
Aboriginal parents have said that it’s really important that the lawyer pushes back on DCJ and doesn’t just agree to everything DCJ have asked of you, or if they want to remove your child. An Aboriginal father has said:
Working with a lawyer could change the outcome of DCJ’s involvement with your child and will empower you with information about what could be ahead. One parent has said “I wouldn’t have got my son back that day if it wasn’t for my lawyer.” (Parent, Bring them home, keep them home research). If DCJ or other services are doing the wrong thing, your lawyer will be the one to help you. Anything you say to anyone may be used against you in court, except for when you talk to your lawyer.
Seek legal advice or representation as soon as you are contacted by DCJ. Other times you should seek legal advice is if your child has been removed, you want your child returned home, to change an order made by the court like contact arrangements, if court orders are not being met, or for help deciding whether you can fight a child protection matter or not.
Parents have said trusting your lawyer is really important. Contact the Aboriginal Legal Service (ALS) and ask for a warm referral to a lawyer in your area. When an Aboriginal child is removed by DCJ, the ALS get notified. They then do conflict and eligibility checks. If they cannot represent you, the ALS can suggest other lawyers. If you want to choose your own lawyer, you can look at the list of ‘panel practitioners’ on the Legal Aid website. If you or someone in your community know of a private lawyer, you can ask if they will represent you and apply for a legal aid grant. This grant can move from lawyer to lawyer. If you ask your local Aboriginal organisations and mob, someone will usually know who the good lawyers are.
This depends on your financial situation. If you don’t have any income or only receiving Centrelink benefits, the ALS and Legal Aid are free and provide a free duty lawyer at the start. But if you can afford it, look at your options. You can follow referrals to highly recommended lawyers, compare prices and meet with them (but the lawyers who are not free often have a consultation fee so checking around can be costly and take time). Some lawyers will offer lower fees and payment plans but not advertise it. Even if you think you can afford a lawyer, it is still worth applying for Legal Aid.
If your court date comes and you don’t have a lawyer yet (you may still be waiting on ALS or Legal Aid), there will usually be a Duty Lawyer on the day. If you don’t have a lawyer when you go before the Court, you should tell the Court straight away that you want to talk to a lawyer first. Duty Lawyers are generally not familiar with your case and might not understand you as a person. You can ask your Duty Lawyer to ask that your case be heard later in the day, to give more time to speak to them about your story, or to find another lawyer that is available. Or you can ask them to ask for an adjournment (a delay). But the Court will still be wanting to make decisions while you look for a new lawyer. If you do get a Duty Lawyer and like them, they can continue to represent you if you ask, or they can help you to find a lawyer that will.
Aboriginal parents have said that they have had lawyers that just went along with what DCJ suggested, which lead to bad outcomes. There are good lawyers out there that will fight for you and your family. A good lawyer provides you with your options and then listens to what you want. You do not have to follow the advice of your lawyer and if your lawyer is not following your instructions, you can find a new lawyer. If you want to change lawyers, let your current lawyer know and make contact with the ALS or Legal Aid to find another lawyer. You can request your file be transferred to this new lawyer. However, if you fire your lawyer and you are with ALS, it might not be an option to transfer to a different lawyer in the ALS. Everything you tell your lawyer will impact how the lawyer handles your case. If they have broken your confidentiality or they have lied about what you have said, you can make a complaint to the Legal Services Commissioner. One parent said:
“I had to advocate for myself because no one would represent me. I had one solicitor at the time, but he seemed to be in cahoots with FACS. FACS was telling me stuff that my solicitor already knew. Like, I’d turn up to court in the morning and FACS were going, oh, this is what’s going to happen. Then I’d speak to my solicitor and he goes, oh yeah, well, I’ve spoken to them and done this, and I didn’t think that was right. I thought there was some sort of private thing where he should have spoken to me first…so I sacked him.”
– Parent, Bring Them Home, Keep Them Home research
“It wasn’t until I got my lawyer, he came in and he’s like I heard your situation. I heard that you’re not being represented properly. I’m here and I’m staying. If it wasn’t for my lawyer then I don’t know how long it would have taken me to know what I was doing.”
– Parent, Bring Them Home, Keep Them Home research
If your partner or someone else is using domestic, family, or sexual violence, it could be helpful to try and go to your lawyer alone (if possible). This can help you to tell the lawyer the whole story, which is especially important if DCJ are using this person’s violence as a reason to remove your child. Everything you tell your lawyer is private, but they can’t lie about your situation to the Court. For example, if your lawyer knows you are a victim/ survivor of domestic, family, or sexual violence because you have told them about it, they can say nothing about it but they cannot lie and say that it is not happening.
DCJ are required to give you a brochure called ‘Is DCJ talking to you about your kids?’ and they should ask if you want to be referred to ALS or Legal Aid. This is called LAFPA, which stands for ‘The Legal Assistance for Families Partnership Agreement (LAFPA).’ It is an agreement between DCJ, ALS, and Legal Aid which recognises that early legal advice is important and families are entitled to legal support. You do not need DCJ to refer you to ALS or Legal Aid for free legal advice. You can contact them directly.
Your lawyer cannot act without your instruction. This means that when decisions need to be made, you are the only person who can make them. Your lawyer can speak with your advocate or support worker but can only take instructions from you. It will depend on what your lawyer is doing for you, if you are involved in Court proceedings, and how often your matter is in Court.
Your lawyer cannot act without your instruction. This means that when decisions need to be made, you are the only person who can make them. Your lawyer can speak with your advocate or support worker but can only take instructions from you. It will depend on what your lawyer is doing for you, if you are involved in Court proceedings, and how often your matter is in Court.
(EIU) is a specialist service of Legal Aid NSW. They aim to help families solve their family law issues early so you can avoid going to court. The issues they help with are seeing your kids, arrangements to look after kids within the family, child support, and issues with DCJ. They can provide you with legal advice, find a mediation service, find a lawyer to represent you if you are eligible for legal aid, help you apply for a legal aid grant, and refer you to a duty lawyer and other services.
A legal service that can do in-house case management support for family, domestic violence and sexual assault victims, and also give you free legal assistance. Aboriginal people or non -Aboriginal people with Aboriginal children can use the service. The case does not need to be in Court yet for the family to be eligible for free legal advice and advocacy services. It is free and not means tested. They provide outreach services.
An Aboriginal led service made up of lawyers, Aboriginal Field Officers and mental health caseworkers, who help Aboriginal and Torres Strait Islander families and children in family law and care and protection matters. The FamAC team provides advice, early intervention support, outreach and casework. They can help you with seeing your kids, problems with DCJ, getting your kids back, caring for kids within your family, domestic and family violence, and child support.
This service gives free legal advice to mothers and other female relatives who are dealing with DCJ. They can help you with Parental Responsibility Contracts, early advice and negotiation about Parental Capacity Orders, changes to contact orders, post final order contact disputes, or any other questions about welfare, family, discrimination or domestic violence. They have outreach services and can visit you in Emu Plains or Silverwater Jail.
The Domestic Violence Unit provides free legal and support services for people experiencing domestic or family violence. It has lawyers, domestic-violence case workers, mental-health workers and financial counsellors. It helps families with ADVOs, child-protection matters, family law, housing and financial issues. It also offers safety planning, court support and referrals to culturally appropriate services.
A service that gives legal advice when there is a child protection matter and family violence is involved. You can access the service even if your case is not in court yet. Services are available to Aboriginal people and non-Aboriginal people with Aboriginal children. It is free and not means-tested. They provide outreach services.
The ALS’s ACFAS is a pilot program that supports Aboriginal families in Dubbo and Moree that might have their children removed by DCJ. They have family advocates as well as lawyers to provide holistic support. Call direct (02) 6841 6969 or free call 1800 765 767, and ask for ACFAS.
Community legal centres give free legal help and other support to people in need. You will need to contact CLC to find out if they offer representation in your area. They support people experiencing financial hardship, social disadvantage, housing issues, domestic or family violence, discrimination, and other legal and social issues.
A community legal centre for Aboriginal women, children and youth living in NSW. They give free legal advice and representation about family violence. They are open Monday, Tuesday, Thursday, and Friday 9am-4pm.
A free government service in NSW that gives legal information, referrals, and in some cases, advice, to people with legal problems. It’s a service of Legal Aid NSW. Phone: 1300 888 529. Web chat: Monday to Friday, 9am to 5pm (excluding public holidays).
The Ability Rights Centre (ARC) helps people with intellectual disability who have either had their children removed, or who are at risk of having their children removed. They offer legal advice, casework and representation.
AbSec and our partners acknowledge the Traditional Custodians of Country throughout NSW and their continuing connections to land, waters, and communities. We also acknowledge the lands on which these stories were told, the lands of the Dharawal, Yuin and Wonnarua people.
We acknowledge the Elders, leaders and advocates that have led the way and continue to fight for our children. We also acknowledge the Stolen Generations who never came home and the ongoing impact of government policy and practice on Aboriginal and Torres Strait Islander children, young people and families.
This website shares the experiences and advice of Aboriginal families involved in the NSW child protection system who participated in the Bring Them Home, Keep Them Home research at UNSW. We acknowledge and thank the families who generously gave permission to share their stories.
These experiences reflect what worked for those families and do not constitute advice or views of AbSec. AbSec recommends seeking independent legal advice for your own circumstances.
