You should always ask for copies of the reports written about your family time visits. If they have not given this to you already, ask your lawyer, advocate, or support service to ask for them or help you contact DCJ for them.
You have a right to ask for more time with your child, to change where the visits are, and to ask for overnight stays. DCJ must provide reasons for their decisions around family time. If DCJ is not communicating with you or ignoring your requests, work with your lawyer, advocate and support service to advocate for these changes. One parent said
“I fought for my visits, everybody else that I know that’s been through that experience, they don’t get to see their kids while they’re in jail, DoCS…it’s more work for them…I got a really good solicitor, and she just really believed in me.”
– Parent, BTHKTM research
A young person who was removed as a child said:
“We had stopped contact. They stopped – they’d tell me that Mum was sick and she couldn’t make it to the visit. They’d call Mum up and tell Mum that I had this school excursion so I had to go and do that. So our access visits just never actually went through.”
– Young person, BTHKTM research
You can remind DCJ and the carers that they are legally required to support a child or young person to maintain connections to family, community, culture and Country under section 12A, of the Children and Young Persons (Care and Protection) Act 1998) and to follow the plans for family time in the care plan, contact order or final orders.
“Depending on how the kids interacted and how they were I would get two hours a week and then eventually it cut down to fortnightly and then it cut down to monthly and then over the years it cut down to four times a year.”
– Young person, BTHKTM research
If DCJ are not doing what they say they will and there is a pattern of behaviour like them not picking you up for contact visits, or cutting contact visits down, you can ask your lawyer to email the DCJ lawyer to ask what is happening.
If there is a pattern of family time not being followed, you can file an application for a ‘contact order’ in the Children’s Court. This is when writing your own notes and keeping track of what is happening becomes important to supporting your application. You should discuss with your lawyer your options about Court applications.
What is a contact order?
This is an order following a decision made by the Children’s Court, that can include details about how your child will stay in touch with their parents, relatives, or other important people in their life. The Court says that they focus on what is best for your child and think about how family time is important and if there are any risks with it. But often, the Children’s Court follows what DCJ decide is in the best interest of your child, rather than you or your family. This is because the Court cannot require DCJ to provide more contact than they are prepared to fund. This is why it is important to discuss with your advocate and lawyer who else can assist with family time. The Court follows the Children’s Court Contact Guidelines to decide on the kind of contact order it will give.
Contact orders list the minimum amount of family time your child should have (for example, how often and for how long visits or calls should happen). It will usually say that some contact must be supervised and who will do the supervising and that a child should not have contact with a certain person if it’s not in their best interests (see section 86 of the Children and Young Persons (Care and Protection) Act 1998), however, the Court can make a contact order relating to frequency and location with a guardianship order.
A contact order can be requested by someone who is already part of a care case in the Children’s Court, or someone who was included in the case in the past and has a genuine interest in the child’s wellbeing.
If final orders for your child have already been made, the Court will only allow a new application if there has been a significant change in circumstances. The Court might also ask the people involved to try to figure it out, outside of Court (called dispute resolution) before a new order is made. If you have tried mediation already, they might send you to a conference facilitated by a Children’s Court Registrar.
A contact order (where restoration is not happening) usually lasts for up to 12 months (see Section 86(6) of the Children and Young Persons (Care and Protection) Act 1998). It can be changed or ended earlier if everyone agrees and signs a contact variation agreement, which must be registered with the Children’s Court. For children under a guardianship order, the Court can make a longer contact order (more than 12 months) if they say it’s in your child’s best interests. If restoration is occurring to one parent and not the other, it is also possible for the Court to make a contact order for children for a longer period. For example, until a child turns 12 years old and can make decisions about how often they want to see the parent that they do not normally live with.
Carers have to follow something called the Code of Conduct for Authorised Carers. It explains what carers have to do to support the rights of children and young people in care. Carers have to:
Once a child is on long- term orders and not interim orders, carers have even more influence in the system. They have responsibilities, but they also have rights. The system cares a lot about physical permanency, but it also doesn’t have enough carers for the number of children it removes.
Aboriginal parents have said that sometimes carers can be a really big barrier to restoration. For example, in one parent’s experience, their child was placed with non-Aboriginal foster carers. Both parents had unsupervised monthly contact visits with her over weekends, where the child also saw extended family. The parents wanted to apply for a Section 90. The parents told their child they wanted to start working towards restoration, and the child indicated they wanted to return home to their parents. In the meantime, the carers moved the child from their Country, without any significant discussion with DCJ or parents. The child has monthly family time with their parents but is now forced to live five hours away from them. This is a barrier to restoration, because their new location prevents increases in how often family time happens.
Carers shaping a child’s views
A carer can say and do things with your kids that shape how they see you and if they want to have a relationship with you. Other parents have said this is really hard to go through. You can ask the caseworker to have the hard conversation with carers to advocate for your child’s right to stay connected to their family, community, and culture. You can ask the caseworker to have the hard conversation with carers to advocate for your child’s right to stay connected to their family, community, and culture. But some caseworkers might not want to do this as they prioritise keeping carers happy because they don’t want to lose them as carers. It has also been the experience of parents that the carer or DCJ will say that family time makes your child upset and so this means they shouldn’t see you, or should see you less often.
A child living in OOHC is usually a hard experience for all people involved. You can remind DCJ of their legal responsibility to support your child to be connected to their family. DCJ say “It is important that your child stays connected to you.” (DCJ Guide for Families, page 32).
It’s the experience of parents that when their child is removed, either caseworker, carers, or both, tell a story to their child about why they were removed. This story was often not accurate, and at times involved lies. These stories can be a barrier to family time happening. A young person who was removed as a child has said:
“That’s what we got told… They tried to tell us the night we got picked up, [sibling] had nothing but a nappy on and they picked us up in the middle of the highway but I distinctively remember the night they actually came and got us. But the whole time we were in the system, they told us that’s how they found us… Our first access visit when they separated us, it was a 30 minute visit. We started crying and he got in our faces and yelled at us and told us if we didn’t stop crying then and there, we’d never get another visit.”
– Young person, Bring Them Home, Keep Them Home research
There is no formal way to enforce a contact order if it’s not followed, but the Court can make an order asking people to promise (or “undertake”) to follow it. When that undertaking is breached, a notice can be filed with the Court. Even though there’s no formal enforcement process, carers still have legal and ethical responsibilities to follow contact arrangements that are in the child’s care plan and Court orders. Evidence for breaching a contact order would also strengthen an application to vary (change) them, or in supporting an application for varying the final order (such as to allocate parental responsibility to someone else for contact decisions if DCJ is not making sure contact orders are being followed).
If your family is going through sorry business and your OOHC agency is not being as supportive as they could be, you can send them the document ‘Significance of Funeral Attendance and Sorry Business for Aboriginal and Torres Strait Islander Peoples.’ The resources on Bugmy Bar is an evidence base that could support you to legally advocate
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.
