What ifs

1. What if a decision is required about which court should hear proceedings?

It is generally not in the interests of a child or their family, that there are proceedings in both a family court and the Childrens Court.

The department, as the agency with statutory responsibility for child protection, decides the jurisdiction in which the protective concerns should be determined. Court Services must be consulted about the most appropriate forum for determination of matters in each case.

When deciding in which court the matter should proceed, refer to the practice resource Working with family courts (PDF, 36 KB) and consider matters such as:

  • which court is likely to provide the most timely and effective solution to secure the safety and well-being of the child
  • will the child's need for protection be established and/or can the child's well-being be more effectively assured through parenting orders
  • can the protective concerns be alleviated by a change in parenting orders
  • is there an appropriate parent or carer able and willing to lodge an application to establish or vary parenting orders.

2. What if a parent requests a 'statement of position' letter from the department?

At times, the CSSC might be asked by a parent to provide a Statement of position letter, in respect of a prospective family court (parenting) application. The provision of this letter may assist the parent in their application for legal aid funding, however, the letter may also be provided as part of the family court proceedings.

It should be noted that where the department seeks to intervene in the family court proceedings it may also be necessary for the department to file sworn evidence (for example, an affidavit) – however, this will be subject to the department’s views in respect of the application.

Decision-making about whether to support an application being made in a family court (or concede to the federal family law jurisdiction) by a protective parent should not be premature, but rather based on a sound decision-making framework supported by relevant evidence, based on a thorough assessment by the department of both parents. The department will be required to provide a comprehensive level of evidence to a family court, including the rationale for its decision-making. The assessment by the department will include considerations about residence and contact, as the family court will need to consider both in making any parenting orders.

Under the Family Law Act 1975 parenting orders may be made in respect of:

  • who possesses ‘parental responsibility’ in relation to a child
  • with whom a child may ‘live with’
  • and with whom a child may ‘contact or communicate with’.

These orders are akin to guardianship, custody and contact decisions respectively as provided for in the Child Protection Act 1999.

The decision to provide documentation to a parent who may potentially initiate family court proceedings will be made by a team leader, senior practitioner or CSSC manager, in consultation with Court Services. This is significant as any issuing of such correspondence prematurely (or in the absence of any thorough assessment of both parents suitability) may create legal and cost implications if an application is instigated.

The 'Statement of position letter' is not intended to favour one particular parent over another. It will outline the nature of the current departmental involvement with the child and family and the current risk assessment of each parent. It will also outline the department's position should certain orders be made by the family court that will secure the ongoing protection of the subject child.

When a parent requests the provision of a 'Statement of position letter':

  • liaise with Court Services to:
    • determine the appropriateness of issuing the letter, based on the circumstances of the case
    • assist with the drafting of the letter
  • ensure that both parents are informed of the decision about providing a 'Statement of position letter' and where possible, record this decision in the case plan for the child
  • provide the draft letter to Court Services and incorporate any feedback provided
  • the completed letter must be signed by the CSSC manager
  • forward a copy of the signed letter to both parents, Court Services and if applicable, the appointed Independent Children’s Lawyer in the family law proceedings.