6. Respond to a child in need of protection

6.1 Intervention where there are current proceedings in a family court

Whenever consideration is given to intervening in proceedings and prior to making a decision to do so, departmental staff must consult with the Court Services manager, about the matter. Costs and other responsibilities may be incurred by the department intervening, including Crown Law representation.

If, following an investigation and assessment, it is determined that a child is in need of protection, the department may respond in the following ways:

  • commence an intervention with parental agreement case, including where required, the placement of the child subject to a child protection care agreement - refer to Chapter 6. Intervention with parental agreement
  • commence child protection proceedings in the Childrens Court to protect the child
  • after consultation with Court Services, intervene and become a party to the family court proceedings pursuant to the Family Law Act 1975, section 92A.

The family court may request the intervention of the state child welfare authority under the Family Law Act 1975, section 91B. If the family court makes a 'section 91B' order, the department may respond by intervening in the proceedings and/or by producing the departmental file in response to a subpoena or section 69ZW order (made by the court).

The subpoena must be addressed to the chief executive of the department and is served on the manager, Court Services. On receipt of the subpoena, Court Services will lodge the departmental files with the court, with the notifiers identifying information kept confidential. The department will 'flag' the notifications, investigations and assessments and outcomes on the subpoenaed file.

The CSSC, in consultation with Court Services, may also wish to prepare a detailed report for the ICL and/or family court when the department has had significant involvement with the family and considers the preparation of a detailed report in the child’s best interests.

If the department intervenes in the proceedings, it is taken to be a party to the proceedings and therefore accepts all the relevant roles and responsibilities. Once the department becomes a party to the proceedings, it is bound by any orders the court may make. In some circumstances it may be appropriate for the department to seek leave to withdraw from proceedings. The department may be involved by either:

  • becoming a party/respondent to the proceedings, where Crown Law will be instructed to act on behalf of the department
  • a Court Services officer (or in exceptional circumstances a CSSC officer) attending to assist the court as a 'friend of the court'
  • providing relevant information to the court, through the ICL, subject to the agreement of the ICL
  • writing to the court directly.

6.2 Provide intervention where a parent has a ‘lives with’ parenting order

Irrespective of the presence of family court orders, the department will intervene to ensure a child's safety and well-being when it is determined that a child is in need of protection.

This includes circumstances where, following an investigation and assessment, it is determined that all of the following apply:

  • a child is in need of protection from the parent with whom the child lives
  • the contact parent is assessed as able and willing to safely care for the child
  • the child's protective needs would be met by a change to family court orders.

In the above circumstance:

Court Services is available for consultation should the CSSC require assistance in relation to the provision of written information to the parents.

If the parent requests a 'statement of position' letter, to assist with their application for legal aid, refer to 2. What if a parent requests a 'statement of position' letter from the department?

If the parent with whom the child has contact consents to a change to family court orders, an application for variation of parenting orders may be filed with a family court. Alternatively, an application for consent orders may be filed with a family court. In each instance the chief executive should be served as a party/respondent to the proceedings. Due to the complexities of the Family Law Court Act 1975, section 69ZK, a decision regarding the most appropriate option must only be made in consultation with Court Services, as the various provisions of this section carry different obligations and responsibilities for the department.

If the parent with whom the child lives will not consent to not invoking their rights under the family court orders, advise the protective parent to seek legal advice regarding lodging an application to vary the order.

6.3 Provide intervention where a parent has a 'contact' parenting order

This includes circumstances where, following an investigation and assessment, it is determined that all of the following apply:

  • a child is in need of protection from the contact parent
  • the parent with whom the child resides is assessed as able and willing to safely care for the child
  • the child's protective needs would be met by a change to family court orders.

In the above circumstance:

  • advise the protective parent to seek legal advice regarding the options available to them in the family law jurisdiction
  • where a current parenting order exists, advise the protective parent of the need to apply for a variation of the family court order
  • provide written information about the outcome of the investigation and assessment, if requested by the parent (Child Protection Act 1999, section 15(2)), to enable the parent to apply for legal aid if required - refer to Chapter 2, 4.4 Inform the parents about the outcome of the investigation and assessment.

Court Services is available for consultation should the CSSC require assistance in relation to the provision of written information to the parents.

If the parent requests a 'statement of position' letter, to assist with their application for legal aid, refer to 2. What if a parent requests a 'statement of position' letter from the department?

If the parent with whom the child has contact consents to a change to family court orders, refer to the actions required in 6.2 Provide intervention where a parent has a parenting order.

If the parent with whom the child has contact will not consent to not invoking their contact rights under the family court orders, advise the protective parent to seek legal advice regarding lodging an application to vary the order.

6.4 Provide intervention when a child requires ongoing protection

If the child requires ongoing protection while the protective parent applies for a family court order or a variation of family court orders, an application for a child protection order in the Childrens Court will be made. In this circumstance, in order to place the child in the custody of the protective parent, the department will seek an interim order granting custody of the child to the chief executive, restricting contact, and request an adjournment until the matter is listed for interim hearing in the family court.

It is essential that advice be sought from Court Services about the effect of any parenting orders, as the way in which family court orders are framed could result in parents having shared parental responsibility, which in turn, may impact upon the departmental response to these matters (and therefore the types of child protection orders that may be deemed appropriate).

Advice must be sought from Court Services about:

  • the best way to proceed in each individual case
  • the appropriate level of departmental involvement in the family court proceedings, for example, instructing Crown Law, attending court as a 'friend of the court', providing information to the independent children's lawyer appointed for the child or writing to the court.

Becoming a party to family court proceedings has a financial cost and other implications, including the cost of engaging Crown Law, and no action will be taken in a family court without prior consultation with Court Services.

The department will ensure that all relevant information is provided to the family court to enable the court to make the most appropriate order.

If the protective parent is unable to obtain legal aid, cannot afford to self fund the application in a family court, or is unwilling or unable to self litigate, the department can only seek a child protection order by presenting evidence that the safe parent cannot protect the child because of the existence of a family court order which the parent unable or unwilling to vary.

The use of a directive order about contact may be the only alternative where the child is at risk of harm on contact visits, but it should not be used as a long-term option. In some cases, a decision to make an application under the Child Protection Act 1999 for a child protection order granting custody to the chief executive, and place the child with the protective parent may be unavoidable. However, such arrangements are undesirable and should be avoided if there is another alternative.

In the circumstances where the protective parent cannot afford to fund the application, it is preferable that the department provides practical assistance to the parent to make the application. If an application is filed in the Family Court of Australia, the Family Law Rules 2004, rule 6.02(2), requires that the applicant must serve the department. If an application is filed in the Federal Circuit Court of Australia, the Federal Circuit Court Rules 2001, rule 11.01 provides that the applicant may serve the department.

Once served, the department is party to the application and can present evidence to the court in relation to child protection matters. This may include a summary of the departmental involvement with the family, any assessments of risk and information about the child's case plan. In rare circumstances, it may be appropriate for the department to make the family court application seeking orders in favour of the protective parent.