Children’s Court & NCAT
CHILDREN’S COURT LAWYER
Stanfords Solicitors & Mediators has extensive experience in working with families through the Children’s Court process.
We assist parents and carers involved in matters before the Children’s Court of NSW where the Department of Communities and Justice (DCJ) have become involved.
We also accept work funded by the Legal Aid Commission of NSW. To see if you qualify for a grant of legal aid you can contact us or visit www.legalaid.nsw.gov.au
Our Lawyers are appointed to the Care and Protection Panel by Legal Aid. We assist families Campbelltown, Parramatta, the South Coast of NSW, Orange, Lithgow, Tamworth, Armidale, Goulburn, Wagga, Cooma, Moree and Broken Hill Children’s Courts.
The Department has removed my children
If the Department of Community & Justice (also known as DoCS or FACS and now referred to as “DCJ”) have removed your children, they must file an application with the Children’s Court of NSW. Once that application is filed they must “serve” a copy of the application on the parents of the children removed.
If they are unable to locate a parent, usually the Court will ask the caseworker from DCJ to file an affidavit setting out the attempts they have made to find and serve each parent.
The Court assigns each application a Court date. All parents and DCJ are required to attend Court on this date.
Before you head to Court
Before you arrive at Court you should read the application very carefully. Make a note next to each paragraph that you disagree with and why. Remember, you can really only make comments on things you have seen or heard yourself.
The application filed by DCJ will list all of the reports that they have received about your family. Remember, these are reports received by them, this is not necessarily always investigated by DCJ. Usually the application will say whether DCJ have attended your home or the children’s school and spoken about the report.
It is very hard to read some of the reports, we understand that it is very upsetting, but it is really really important that you do. Being prepared is one of the best things you can do before your first court date.
If you have enrolled in any parenting programs, or engaged with a doctor, counsellor, psychologist or psychiatrist or any other specialist, it will be really helpful if you can get a letter or a certificate to say that you have completed the program, or are in the process of working with that person. If drugs or alcohol abuse is an issue, then taking steps to address that issue by asking your GP for help with a referral to a drug and alcohol counsellor is a really good first step.
If family violence has been an issue for your family, taking a step like enrolling in a family violence program such as facing up is a good thing to do. Your GP can help you with a referral and so can your children’s DCJ caseworker.
First Court Date
On that date, the Court will appoint a lawyer for each of the children. Depending upon the age of each of the children, they will be appointed either an independent legal representative who acts in their best interests (under 12 years of age), or a direct legal representative who acts on their instructions.
At court parents are assigned a duty lawyer. The duty lawyer is part of a specialised panel put together by Legal Aid NSW. The duty lawyer may be either from a private law firm (like our firm) or from Legal Aid. All lawyers on this panel have to meet very strict criteria to be appointed. The duty lawyer will be provided with your documents and usually will have read them before meeting you at Court. Sometimes, the documents are only provided to the duty lawyer on the day and they will need some time to read them before they speak to you.
On the first day at Court, DCJ are usually asking the Court to make an interim (not a forever order) order that transfers parental responsibility away from you as parents to them. As this is a very serious order, the Court must carefully consider the application filed by DCJ. Your lawyer will take you through the application. You can show them the notes you have made on your copy of the application and raise with them issues you have with incorrect information and the like.
The duty lawyer will then give you some advice about the application, and what the likely outcome will be that day.
Unfortunately, most of the time the reports that are received by DCJ are very serious and the Children’s Magistrate will make the order. Remember it is an interim order, not a final order.
The Magistrate will then make an order that gives you an opportunity to file an affidavit setting out your comments in relation to the application and an update on how you have addressed any of the concerns raised in the reports.
The matter is usually then adjourned for about 4 weeks. DCJ will be directed to file a document called a Summary of Proposed Plan. This is a to do list. You should read it and start working through the list and achieving everything as soon as you can.
Subsequent Court Attendances
How your children’s case progresses from there, will depend on a couple of things. Usually, to be blunt about it, how fast the matter moves along towards a point where the Court can make a decision whether your children can be restored to your care will be up to you. If you get stuck in and work very hard and very quickly to address all of the risks that are contained in the reports, then you will have a much better chance of having the children restored to your care.
Children’s Court Clinic Reports
Sometimes, the family dynamics are complex and require an assessment from an independent outsider. Usually in cases like these, the Court will make an order for the Children’s Court Clinic (a specialised service run by Justice Health) to undertake an assessment of your family. During an assessment you and your children will be interviewed by the Children’s Court Clinician (“the Clinician”). The Clinician will explore with the adults all of the reasons that the children came into care and what steps they have taken to resolve those risk issues.
The Clinician will meet with the children and assess what impact the previous living arrangements have had on them and whether in their opinion it is suitable for the children to return to their parents care.
The Children’s Court Magistrate will read the report and then ask DCJ to consider the contents of the report, their own experience working with the parents and any reports from other services, and ask them to prepare a care plan setting out whether DCJ assesses it as suitable for the children to be restored to the care of their parents.
You will then have an opportunity to file your own affidavit responding to the Clinician’s report and the Care Plan.
Dispute Resolution Conferences
Dispute Resolution Conferences or “DRC’s” as the are known, are a mediation convened by a Children’s Court Registrar and attended by all parties. They usually take about 2 or 3 hours.
During a DRC parties are free to discuss all options as it is a confidential process and nothing said in the DRC can be reported back to the Court.
If there is no agreement on an issue, whether it is the first issue of the Court making a finding that the children were in need of care and protection or the second issue of whether the children can be restored to the care of one or both of their parents, then the matter has to be set down by the Court for a hearing.
Hearings relating to the first issue of a “finding” or “establishment” are usually done on submissions. What this means is that the Court reads everyone’s evidence (via affidavit) and listens to what they have to say about the other parties documents (the submissions). After they have heard everyone’s submissions, the Court then makes a decision.
When the hearing is about placement, whether the children can be restored to their parents, this type of hearing is usually run in a way that each witness gives their evidence by affidavit and is then cross-examined by the other parties lawyers. After every witness has given evidence and been cross-examined, the Court then asks each party to make submissions about the evidence. Once this is complete the Court will usually adjourn the case and make a decision. The Court will then advise the parties of a date that it will deliver the judgement.
If you are unhappy with the final decision of the Court, you have a right to appeal the decision to the District Court of NSW, unless the final decision was made by the President of the Children’s Court who is a District Court Judge, then your right of appeal is to the Supreme Court of NSW.
You have 28 days from the date of the final orders to file your appeal.
If you are a foster carer and a child has been removed from your care or you have received notification from DCJ or the non-government organisation that you are registered with that you are about to be deauthorised, you have the ability to lodge an application to stay either the removal or the deauthorisation via NCAT in NSW.
We have experience in dealing with these matters. Contact us today to see how we can help you.
Adoption in NSW is becoming more popular. Children who are in Out of Home Care often feel like they “don’t fit in” because they aren’t living with their family. Adoption can bring a sense of belonging to those children.
These applications are heard in the Supreme Court of NSW in Sydney.
If you are a parent who has been informed that an adoption is planed for your child and you do not agree with the decision, you have an opportunity to be heard by the Court. You should seek legal advice from an experienced lawyer at the earliest possible time.
If you are a kinship or foster carer who has decided to adopt a child in your care, you will be aware that the process is long and rigorous. If the application is opposed, you may be assisted by either DCJ or the non-government agency that you are registered with during the Court proceedings. However, if you are not or you would like independent representation, contact us today to make an appointment and we will help you through the process.