When the Judge is asked to reconsider the final order for a child in care it’s called a section 90 application. Depending on what the Court and DCJ say is in the best interests of the child, the order can stay the same, be changed, cancelled or a completely new order can be made. A section 90 can legally restore a child from long-term care or guardianship to the care of their parents or family. It can also be used to stop a Court-approved restoration. There are two steps to a section 90 application. The first is the Court has to think about if they should open the door for restoration. The second is if they should go through the door (look at what orders you are asking for). There needs to be enough time to show change, but not too much time so that the child’s placement isn’t considered disrupted. This makes timing important and frustratingly difficult to navigate. It is most helpful when both DCJ and your OOHC agency are working together to achieve restoration, but it is possible without it. The Court looks at all of DCJ’s past concerns to work out what the change for the child or their parent has been. A section 90 can technically be applied for as soon as the day after final orders have been approved from the Court. But most lawyers won’t suggest this because the Court wants you to show them that there has been ‘significant change in any relevant circumstances since the care was made or last varied, and you usually need time to show this. The change can be obvious (such as leaving jail or completing a longer period of rehab), but the tricky part is showing what is “significant” and how the changes are relevant to the reasons why the Court did not support restoration in the first place. Appealing the decision the Court made is also an option is you think they made the wrong decision.
It can be started by parents, the child or young person, the carer a DCJ case manager, or someone with an interest in the child.
Section 90 applications are usually done by DCJ and the OOHC agency as a collaboration. It’s more likely for restoration to happen this way because it’s then the responsibility of DCJ and the agency to argue why it’s in the best interest for your child to return home. Even if you don’t have all of that support, restoration is still possible.
You will need to work with a lawyer, gather your own supporting evidence and have the Court look at your application (leave granted by the Court). DCJ will still need to give their evidence to the Court, but it will be in response to yours. If the Court says they will reopen your case, your lawyer can use this to argue for other orders, such as restoration or guardianship. You have to show that what you are asking for is likely to be successful.
To try and get DCJ on board you can try and organise a group meeting to try and get on the same page. DCJ’s ‘Interim Restoration Assessment Approach’ manual 2024* says restoration “involves transparent conversations where you evaluate and review your own practice and the practice of services alongside the progress of parents. Letting a family know that while there will always be bottom lines around child safety, there is room to discuss, collaborate and partner around the ways you can be most helpful to them, the ways decisions are made and the approach or language that is used to talk with their family.”
If DCJ are not willing to have this meeting or not being led by your family, you can remind them of this. Your support service or advocate can organise this meeting, and it can involve whoever you think should be there. Together with your support team, you can present to DCJ any significant changes in either your child’s circumstances or your circumstances which supports why they should come home. Parents have said that it is hard to try and change DCJ’s mind, but things can change when caseworkers change or you keep trying again and again.
*DCJ document not publicly available.
If you do have DCJ’s support, your case will be given to the Child and Family District Unit (CFDU). Then DCJ’s legal team look at the documents and the CFDU make the section 90 application with the Court. Everyone who was a part of the Court case before will be included again (party to proceedings). This includes relatives or other people who might have previously be joined to proceedings. If carers had not previously been granted leave to be parties, they have to apply to the Court to be involved in section 90 proceedings. Once the Court has looked at the first step (whether to open the door), it then considers all of the evidence filed and decides again whether restoration is realistic.
They look at your child’s circumstances and the changes in your life. The Court makes a decision on what is in the best interests of your child. They use evidence to determine this. This evidence includes your child’s current needs like education, culture and identity, emotional and physical health, and relationships.
The Court will look at your progress towards goals previously set out for you, your health, housing and ability to provide for your child now. The system often chooses the carer’s relationship (where it has been demonstrated to be stable) over the parent’s relationship, even though attachment theory says all relationships are important.
Aboriginal parents have said that s the system uses Western theories around what attachment looks like, and usually chooses the carers relationship over the parents relationship. One parent said:
“[The children’s] solicitor, his concern is because they’ve been in care for so long, the attachment issue and how that will work. When we had our – when we paid for our assessment to be done, we asked them to allow us to be assessed with the children. They had denied that, because they were like, we don’t want another face around them. They’ve got so many people.”
– Parent, Bring Them Home, Keep Them Home research
Your child’s relationship with their carer is the first thing the Court considers when a Section 90 application is made, as the system sees it as the most important (“primary consideration”). They then think your child and their carers relationship needs to be protected from their many other relationships with parents, family, carers and kin, even though those relationships provide a sense of belonging (Wright et al. 2025 cited in Newton et al. 2025).
DCJ are required to support an Aboriginal or Torres Strait Islander child or young person to maintain connections to family, community, culture and Country, Section 12A Children and Young Persons (Care and Protection) Act.
“The foster carer… she doesn’t want to give up my children either, so we’re fighting DCJ and now her, because she wants him I believe if she was to walk away or something was to happen to her, that my kids would be home, because there’s no reason to this day why they should not be restored, because all the concerns they had are now explained.”
– Parent, Bring Them Home, Keep Them Home research
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.
