CARE & PROTECTION LAWYERS SHELLHARBOUR

Care and protection law applies when the NSW Department of Communities and Justice (DCJ), formerly Family and Community Services (FACS), steps in to protect children who may be at risk of harm. These matters are handled in the NSW Children’s Court and differ from private family law proceedings under the Family Law Act 1975 (Cth).

The Children and Young Persons (Care and Protection) Act 1998 (NSW) sets out the legal framework. If a child is found to be in need of care and protection, the court can issue orders that may involve shifting parental responsibility from one or both parents to the State or another responsible adult, such as a grandparent or extended family member.

The court can issue a range of orders to support and protect a child, including:

• Final Care Orders: Permanently transferring parental responsibility to the State or another suitable person.
• Supervision Orders: Permitting DCJ to oversee the child’s welfare and care arrangements.
• Contact Orders: Ensuring the child maintains relationships with specific individuals.
• Undertakings: Requiring parties to fulfil obligations in the child’s best interests.

The court may also make interim orders to address immediate safety concerns while the case is still in progress.

Emergency Powers of DCJ

If a child is believed to be at immediate risk, DCJ can remove them from their home without first obtaining a court order. This emergency action is subject to review by the Children’s Court shortly afterward, where further decisions will be made regarding the child’s care and living arrangements.

In matters before the Children’s Court, the Department of Communities and Justice (DCJ) and the child’s parents are the key parties. The child is also represented, depending on their age:

• Independent Legal Representative (ILR): Appointed for children under 12, acting in the child’s best interests.
• Direct Legal Representative (DLR): Appointed for children 12 or older, following the child’s direct instructions, similar to how a lawyer represents an adult.

Other individuals with a meaningful connection to the child, such as extended family or close family friends, can apply for what’s known as “rights of appearance.” If granted, they may take part in the proceedings, including presenting evidence, questioning witnesses, and making submissions. This involves filing a formal request supported by relevant information.

People significantly impacted by the outcome, but who are not granted full rights of appearance, may still be given limited scope to express their views.

If you’re considering becoming involved in care proceedings, Kells can offer clear legal advice and representation to help you take the next step.

The court’s primary focus in care matters is always the child’s safety, development, and future wellbeing. Decisions are made independently of the wishes of parents or other parties, with the child’s welfare placed above all else.

Care proceedings typically begin with interim decisions covering immediate living and contact arrangements. These initial orders may be reviewed if circumstances change.

The court will then assess whether the child meets the legal threshold for care and protection. This may involve examining issues such as abuse, neglect, or lack of appropriate carers. If the child is found to need protection, the matter moves to a final stage, where longer-term arrangements are determined.

This process can include evaluations of potential carers, review of case plans, and dispute resolution conferences. If a resolution cannot be reached through agreement, the case proceeds to a final hearing, where the Magistrate issues binding decisions grounded in the child’s best interests.

If you disagree with the outcome of a care matter, you may be eligible to appeal through the District Court, which conducts a new hearing.

In rare and more complex cases, the Supreme Court can step in under its parens patriae jurisdiction, which allows it to intervene in a child’s life where necessary for their protection.

Kells can assess your position and provide legal advice on whether an appeal or Supreme Court application is appropriate for your situation.

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), final care orders are not necessarily permanent. If circumstances shift in a significant way, it may be possible to apply to the Children’s Court to revisit the matter.

When the court agrees that the change is substantial enough, it can allow the case to be reopened. This gives the applicant an opportunity to request a variation or cancellation of the current orders. While the matter is under review, interim arrangements may be introduced to address the child’s short-term welfare.

If you believe there has been a meaningful change that affects the care orders in place, the team at Kells can provide the legal advice and representation needed to support your application and help progress your case.