“You say, after every visit, I want my notes… it’s very important that you get those, because if there’s something in there that you’re not aware of, you’re not going to find out until it’s already in the hands of the courts, and something could be said really bad and blown out of proportion.”
– Parent, Bring Them Home, Keep Them Home research
– Parent, BTHKTH research
The system collects information in their reporting, investigation, and assessment processes. The information caseworkers record on their database is called evidence. This information can be used in Court to justify removal. When DCJ goes to Court, they create a story about you and give it to the Judge. Some of what DCJ says might be true, a part of the truth, or a lie. They will often add assumptions without the full picture or your family’s voice. This is harmful to families.
Try to keep all communication between you and DCJ in messages and emails (written form). This can help DCJ stay more accountable. Parents say that DCJ are more controlled in meetings and can be less controlled in messages or emails.
Don’t let the story built by DCJ be the only story. One mum has said:
“…I was working three jobs, studying, doing NA, urinalysis, drug and alcohol counselling, child programs or parenting programs, still meeting up with lawyers… still traveling to Newcastle twice a week, every week.”
– Parent, Bring Them Home, Keep Them Home research
The Judge at Court needs to look at all evidence, so create a story that goes against DCJ’s version of your family. Show who your family is and their relationship to your child. Find people who will help you hold onto your truth. Get community members to write character references. Be seen by community who can speak to your commitment to keeping your child safe and working on DCJ’s worries. Even though DCJ will say that they cannot talk about your case to anyone, you can talk to anyone you like about what they have said to you in meetings.
Language is important so if what they say does not represent what happened or the way it happened then write that down and if it feels safe enough, let them know. You can send the case worker a message to let them know you understand they are worried and then explain what really happened or the full story behind it. Your text messages will be placed on your child’s file.
DCJ can decide to go to Court at any time. If DCJ remove your child and put in (file) an application to the Court, it will have to filed with the Court within 3 working days. It has to be listed in Court at the next available date and no later than five days from when your child was removed. This is a stressful time. You can tell your lawyer to challenge any application in court, but it will help them if you are able to contact them early, provide some of your notes or evidence and they can prepare the case with a little bit of notice. You should contact your lawyer the moment you receive removal or assumption papers (before they file their initiating Application and Report with the Court).
DCJ can get copies of information from services and use this against you, such as drug and alcohol counselling notes and records of attendance. There are some counselling notes that are private, including sexual assault counselling. Make a list of the information that you think may be used against you and work with your support network to try to make sure that what is written about you is true.
You have the right to request the case notes DCJ write about you and DCJ will most likely not tell you about this. They will most likely not actively give this to you and they will likely be very slow in giving you the notes in bits and pieces. You will probably have to keep asking. Standard 4.2 of the DCJ Practice Framework Standards requires caseworkers to give families copies of assessments, case plans, and safety plans. When a care application is made, the DCJ must, as soon as practicable, give the parents a copy of the application and any other documents, if those documents can be located on DCJ’s file (unless it is a recording, in which case special rules in section 64A apply). The information in the application must be written in a way the parents can understand (Subsections 64 (4) and (5) of the law). The documents that they provide with the application should be provided in the exact way that they exist on DCJ’s file for your child (they should not be summaries or partial documents).
Writing about your family must be respectful, fair, and accurate. The background story of any actions or words by you or your child should also be included. (Standard 4, DCJ Practice Framework Standards). An example of DCJ not doing this is if at Court, DCJ builds a positive case for the foster carer but deliberately leaves out positive information about your family. If violence is mentioned, it should be described clearly, with responsibility given to the person who was choosing to be violent (Standard 4.3 DCJ Practice Framework Standards.) You could ask DCJ if you can take a photo of what they have written about you when you speak with them, and read it and sign it, to check in real time if they have written and recorded things accurately. You can make a note in your own record if they refuse to change what they have written. You will then be sent the documents and can compare them. If you have documents or records of meetings that DCJ has not been included in their Court documents then they can get in trouble from the Court for not behaving in the highest professional standards (being model litigants).
You can ask the caseworker if you can record the conversation, but if you record a conversation without asking permission, you are going against the law (breaching the Surveillance Devices Act) and it can’t be used in Court. A mobile phone or other recording device is considered a “listening device.” One mum said:
“I actually have a recording of this because I had no support person at the time and I was terrified of [DCJ] because I didn’t trust them and I knew what they did in their meetings and how these conversations went so I did not feel safe. I did not have a support person with me at all… I really felt like that was a really unfair power imbalance in that setup so I brought a recorder and I have this recording.”
– Parent, Bring Them Home, Keep Them Home research
Anyone who is officially a part of the Court case (a Party to the Court proceedings, such as a parent, DCJ and lawyers) can give evidence. Others who are not officially a part of the Court case, (such as a grandparent, support worker, or teacher) can still give evidence in different ways. Someone who is involved with your child, like a grandparent or support worker can ask to be made a Party to Proceedings to make this easier. There is also provision (rule) for the Court to take into account (consider) the views of people impacted by their decisions, without them being a formal party.
People who are officially a part of the Court case (Party to Proceedings) can send statements with evidence (called affidavits) and can also ask anyone to be a witness and answer questions in the Court room. If someone is not officially a Party to Proceedings, they can still give their evidence in an affidavit, through someone else’s case (including a parents). Records from police, hospitals, doctors, counsellors, schools, or other agencies can be asked for by the Court (this is called a subpoena). If you have been working with a support service who records evidence for you, your lawyer can ask for the records to be given to the Court. Independent experts who are called ‘Children’s Court Clinicians’ can also do an assessment and provide evidence.
The Court has to consider all of the evidence filed in a case, but it will decide how important each piece of evidence is (assign weight to evidence). The Court must work out whose version of events or story is more likely to be true, after weighing them against each other (The standard of proof the Court uses is the “balance of probabilities”). It is important that your evidence is clear, relevant and contains information that you know to be true. If you are unsure about something, but think it is important to include in your written evidence, you should include it, but say why you cannot be sure if it is right. For example, if your kids tell you that the carer has done something to them, and you believe them, it is important to include all information. This could include how the children told you, why you believe them, if you were unable to speak to the carer, or if you told the caseworker. If your case goes to a hearing, you will be cross-examined (asked questions) about what you have put in your affidavit. The Court’s reason for this is to test the truth of what you have written, but also to test if you can be believed and trusted (if you are credible as a witness). It is important that you take the time to consider all of DCJ’s evidence to respond to. If your lawyer says you don’t have to respond to everything right now, ask them when you will get that chance, because you know that the Court is weighing up the evidence.
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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.
