You are here:

  1. Home
  2. Chapters
  3. 10. General
  4. 10.21 Family courts
  5. Key steps
  6. 6. Respond to a child in need of protection

6. Respond to a child in need of protection

Table of contents:

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, Child Safety staff must consult with the Court Services Unit manager, about the matter. Costs and other responsibilities may be incurred by Child Safety intervening, including Crown Law representation.

If, following an investigation and assessment, it is determined that a child is in need of protection, Child Safety 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 the Court Services Unit, 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, Child Safety may respond by intervening in the proceedings and/or by producing the Child Safety file in response to a subpoena by the independent children's lawyer (ICL).

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

The CSSC, in consultation with the Court Services Unit, may wish to prepare a detailed report for the ICL, in the following circumstances:

  • when Child Safety considers the most appropriate way to present the relevant information to the court is by way of a written report, for example, where there may be a number of files, but only a small amount of relevant information
  • when Child Safety has had significant involvement with the family and considers the preparation of a detailed report in the child's best interests.

If Child Safety intervenes in the proceedings, it is taken to be a party to the proceedings, however in some circumstances it may be appropriate for Child Safety to seek leave to withdraw from proceedings. Once Child Safety becomes a party to the proceedings, it is bound by any orders the court may make. Child Safety may be involved by either:

  • becoming a party to the proceedings, where Crown Law will be instructed to act on behalf of Child Safety
  • a Child Safety 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 parenting order

Irrespective of the presence of family court orders, Child Safety 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:

The Court Services Unit, 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 Child Safety?

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 the Court Service Unit, as the various provisions of this section carry different obligations and responsibilities for Child Safety.

If the parent with whom the child lives will not consent to a variation of family court orders, advise the protective parent to seek legal advice regarding lodging an application in a family court.

6.3 Provide intervention where a parent has a contact 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.

The Court Services Unit, 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 Child Safety?

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 a variation of family court orders, advise the protective parent to seek legal advice regarding lodging an application in a family court.

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, Child Safety 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 the Court Services Unit 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 response of Child Safety to these matters (and therefore the types of child protection orders that may be deemed appropriate).

Advice must be sought from the Court Services Unit about:

  • the best way to proceed in each individual case
  • the appropriate level of involvement of Child Safety 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 the Court Services Unit.

Child Safety 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 and cannot afford to fund the application in a family court, Child Safety 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 cannot afford to seek 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 Child Safety 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 Child Safety. If an application is filed in the Federal Magistrates Court of Australia, the Federal Magistrates Court Rules 2001, rule 11.01 provides that the applicant may serve Child Safety.

Once served, Child Safety 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 Child Safety involvement with the family, any assessments of risk and information about the child's case plan. In rare circumstances, it may be appropriate for Child Safety to make the family court application seeking orders in favour of the protective parent.