The law is not designed for everyone to be able to understand. Lawyers go to university for years to be better able to understand it. DCJ have a team of lawyers who they can go to for help. This means that parents automatically have less power than them when they first meet. Find a lawyer to represent you as soon as possible.
Ask your lawyer: Lawyers offer expert legal advice on how to fight for your child, explain legal/ Court processes, listen to you and follow your instructions, and keep your information private unless you instruct them differently. Your lawyer should explain all of your options and advise what is the best one for you.
Your support service can also tell you what legal words and processes are, but they cannot give you legal advice.
Look a the Judicial Commission’s Local Court Bench Book: This is the book that all Judges use (refer to). It has a whole chapter on care and protection.
Look at the Bugmy Bar resource, as it can provide an evidence base that could support you to legally advocate. Lawyers can hand the documents up to the Court to consider as well, to support your advocacy. The chapter ‘Cultural Dispossession and Cultural Resilience: Aboriginal and Torres Strait Islander Peoples Experiences of Colonising Practices’ might be relevant to you and your family.
Mentions in in the NSW Children’s Court are shorter Court sessions where a case might be formally introduced, and matters (a legal case in Court) are considered. It’s a step in managing the case before it goes further. A “first mention” is the first time that your case is brought to the Children’s Court. It involves you, the Judge, DCJ and each lawyer sharing views about who should have interim or ‘short term’ parental responsibility for your child. A ‘first mention’ will involve interim (temporary) orders being made.
Parental Responsibility (PR) means the person who has legal long-term decision-making power about things like where your child lives, who they see, their health, education, and decisions about religion. It’s about the duties, powers, responsibilities and authority which parents legally have in relation to their children.
is when the NSW Minister for Families and Communities has full legal responsibility for a child and can make decisions about their life, including where they live and who they see. Parental Responsibility doesn’t have to go to the Minister, even though the Court usually decides this. PR can be shared with you and a relative and it can be shared with a relative and the Minister (the Government/ DCJ). For example, if Parental Responsibility is shared with you and a relative, you could keep the responsibility for things like religion and health, and your relative could take responsibility for your child’s education and where they live. Ask your lawyer about what your options are and how to do this. Your family member doesn’t need to do a kincare assessment for them to get interim Parental Responsibility.
When children are first removed from their parents, they are usually placed on interim care orders. These are temporary orders made by the Court while a case is still being decided and until orders are made. Interim orders outline who has Parental Responsibility. During this time, parents are expected to follow a ‘Family Action Plan for Change’ to show they can safely care for their child. It’s the experience of parents that they are expected to meet the goals set out in the ‘Family Action Plan for Change’ with little support.
Alternative Dispute Resolution (ADR) is a process where an independent person called a facilitator helps your family and other important people in your child’s life discuss issues and disagreements outside of Court. There are two main types of ADR that are used when DCJ becomes involved. A Family Group Conference (FGC) should happen before the case goes to Court, but can also occur after your child has been removed. A Dispute Resolution Conference (DRC) can happen after a care application to the Court has been made.
A FGC should be offered to you by DCJ as soon as they become involved with you and your family. It is not a substitute for a family meeting, which can sometimes happen more quickly. Section 37(1A) of the Care Act says that DCJ are legally required to offer you alternative dispute resolution before seeking to remove your child (excluding exceptional circumstances (section 37(1B) of the Care Act). The Care Act also says that the purpose of a FGC is to ensure that support is provided to families to resolve any issues at an early stage to try and make sure that a care application isn’t made. Many Aboriginal families have said that doing an FGC was harmful, and a family meeting without DCJ is better.
These conferences are ordered by the Court and are used to try and solve care applications early and can avoid everyone going to a final Court hearing. A DRC takes place when a care application has been made. The purpose of a DRC is to provide the family and DCJ with an opportunity to talk about areas of the care plan that they agree and disagree on. It needs to identify, including any progress family members have made in addressing the identified concerns for the child. At any time during the legal case, the Judge can ask the parties to do a DRC. DRC’s are facilitated by a Children’s Registrar and can go for a minimum of two hours. They are usually held in a meeting room within the Children’s Court. All parties and lawyers go (for example mum, mum’s lawyer, dad, dad’s lawyer, the child or young person’s lawyer, the DCJ caseworker, the DCJ case manager, and DCJ’s lawyer). Other people can attend a DRC, with the agreement of all of the party’s and the Registrar. The purpose of a DRC is to provide the family and DCJ with an opportunity to talk about areas of the care plan that they agree and disagree on. It needs to identify If an agreement is reached by all parties, the Children’s Registrar will provide a report with the agreed outcomes only. Everything else in the mediation is confidential. This means you cannot talk about it, and the Court does not know the details of what was said (there are exceptions to this, and the Registrar will explain this). An agreement about outcomes will be noted on the Court file. If agreement is not reached, the Children’s Registrar, in discussion with the parties, will identify the remaining concerns in dispute and the matter will go back to the Judge, who can make decisions about what happens next such as listing the matter for a hearing.
‘Establishment’ means that the Court needs to prove there is enough evidence that a child needs care and protection, and that the Court needs to be involved. A parent can either agree or disagree to establishment. If they disagree, the matter then goes to an establishment hearing at Court. The Judge will look at the evidence and make a decision on whether a child does need care and protection. This is the parent’s opportunity to give (file and serve) evidence that their child is not in need of care and protection. Establishment could be a chance to get back your children and close your case with DCJ – if, after reviewing all the evidence, the Court says that your child was not in need of care and protection, your child should return to your care immediately. You should send in evidence to the Children’s Court before the Establishment hearing. You can do this through working with your service provider and legal representative to gather evidence against what DCJ may be telling the Court. However, this could also be risky because the Court can make a finding that there is ‘evidence of a fact’. You should talk to your lawyer about the risks, but ultimately, you decide. A Court ruling early in proceedings can affect future final decisions, including after final orders when applying for a section 90 application for restoration.
In the NSW Children’s Court, a final hearing is the last stage in the legal case where the Judge makes a final decision about the long-term care arrangements for a child or young person. A final hearing will happen when the parties (DCJ, parents, and the child’s lawyer) cannot agree on whether the child should be restored to their parent’s care, placed with family or kept in out-of-home care. Even if all the parties agree to final orders, the Court might still want to hear from caseworkers and parents and list a matter for final hearing to do that. The Judge will consider evidence to decide what final orders should be made in the ‘best interests’ of the child. This evidence includes affidavits (documents) from DCJ, parents, carers and other witnesses, reports from DCJ and the Children’s Court Clinic, subpoenaed documents (documents asked for by the Court such as school, police, medical records) and cultural care plans.
Final orders are long-term decisions made by the Court. The decisions can be made either in Court after a final hearing, or after considering an agreement that you and the other parties have come up with. Final orders that restore your children to your care usually include orders for Parental Responsibility to the Minister for a short period (can be referred to as ‘short term orders’). The final order might involve a number of orders that happen in sequence. For example, once the short term orders are done, the final order might be that mum keeps Parental Responsibility and dad no longer has Parental Responsibility. Final orders that do not restore your child to you can give parental responsibility to a carer (through guardianship or by through other orders) or keep it with the Minister until the child turns 18. The Court cannot make a final order unless it has first looked at a care plan prepared by DCJ (section 80 of the Care Act). Before making a final order, the Court must consider also the case plan and a cultural support plan, which should set out how your child’s needs will be met, how they will stay connected to parents, siblings, family, and community, and how their culture will be supported. Even though it’s called ‘final orders,’ this does not mean that restoration is impossible and that you can’t get your child home. Restoration can be achieved through a section 90 application to the Court.
This type of lawyer is similar to yours, because they have to take instructions directly from your child, as long as the child is old enough to understand. Children aged over 12 years old can usually get a DLR, but children younger than that could also get one if they show they know what the case is about, think about their choices, and explain their views in a clear way.
The ILR’s job is to tell the court what is in your child’s best interests, even if your child disagrees or is too young to give their view. They don’t have to follow your child’s instructions. The lawyer makes their own decision about what is in your childs ‘best interest’ and could be different to what you or your community would say is in their best interest.
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.
