Children’s Matters – FAQs

Q. What happens if I am served with Children Court Documents?

It is most important that you stay calm and do not overreact when being served with Children’s Court Documents, which may be difficult given the circumstances.

It is important to listen carefully to what the Caseworker or Case Manager serving the documents is saying to you, as they usually inform you when and where your matter is listed the Children’s Court.

The date, time and location for your matter can also be found on the last page of the Application to the Children’s Court under the heading of Notice of Listing.

Usually the matter will be listed within 1 to 5 days of the application being filed with the Children’s Court. Again it is important that you do not panic as the Children’s Court and Legal Aid NSW run a ‘Duty Lawyer’ program to assist you with the initial Court appearance should you be unable to obtain your own Lawyer before hand.

Q. What documents will I likely be served with?

It is likely that you will be served with a document titled Application to the Children’s Court and a further document titled Affidavit.

In some circumstances you may be served with more than one Affidavit.

Q. What is an Application?

The Application to the Children’s Court sets out the names of the children whom the Director General of the Department of Human Services – Community Services has concerns about, and the Orders which the Director- General is seeking the Court to make with respect to your child or children. The Orders they seek are usually indicated on the first and second pages of the Application to the Children’s Court.

The grounds for which the Director General seeks the Orders are also found in the Application to the Children’s Court and are usually found on the second page of the application.

Q. What is an Affidavit?

An Affidavit is a document that contains the evidence supporting the Application filed with the Children’s Court.

It sets out the names of the respective parents, carers and siblings of your child/ren that are named in the Application. The Affidavit usually outlines the background to your matter, your historical involvement with the Department of Human Services as well as the ‘Critical Incident’ which brought the matter to the attention of the Department of Human Services. You should note that the ‘Critical Incident’ referred to above is not necessarily one single incident, it may comprise a series of incidents and issues which resulted in the Department of Human Services commencing proceedings.

Q. Do I have the opportunity to respond to material filed by the Director General?

In short, yes you are given the opportunity to respond to the material filed by the Director General and address the issues that they have raised in their material. This is done by way of Affidavit.

Q. On what grounds can the Court remove my child/ren?

When making an Application to the Children’s Court the Director General must state the grounds for which they are seeking the Orders sought in their Application. The main grounds which the Director General applies for Orders are as follows:

  • there is no parent available to care for the child/ren or young person/s as a result of death or incapacity or for any other reason;
  • the parents acknowledge that they have serious difficulties in caring for the child/ren or young person/s and, as a consequence, the child/ren or young person/s is in need of care and protection;
  • the child/ren or young person/s has been, or is likely to be, physically or sexually abused or ill-treated;
  • the child/ren’s or young person/s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his/her/their parents or primary care-givers;
  • the child/ren or young person/s is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he/she/they is/are living;
  • in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service;
  • the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,

Before making an Interim or Final Order, a Court needs to be satisfied that there is evidence that supports one or more of the above grounds.

Q. What are interim orders? When will a court make an interim order? How long do they last for?

Interim Orders are Orders made before an Application is finally determined. Interim Orders are temporary and can be changed during proceedings, although this is very rare with respect to some Orders such as the allocation of Parental Responsibility which requires a significant change in circumstances for those Orders to be varied.

The usual Interim Orders a Court will make are with respect to the following:

  • Order allocating Parental Responsibility for a child/ren to the Minister or any other party;
  • Order for a child to attend therapeutic or treatment programs;
  • Contact Orders;
  • Orders for the removal of a child;
  • Orders prohibiting parties to do certain acts or things.

The Children’s Court may make Interim Care Orders if it is satisfied that it is appropriate to do so. The Interim Orders are in place until they are varied or discharged by a further Interim Order or by a Final Order.

Q. What is Parental Responsibility?

Parental Responsibility means all the duties, powers, responsibilities and authority which, by law, you have in relation to your child/ren.

This includes decisions with respect to and not limited to education, medical and all other issues regarding the day-to-day care and welfare of the child/ren.

Q. What does the Court consider when making an Interim Order regarding Parental Responsibility?

When considering whether or not an Interim Order is necessary, a Court will have to consider the evidence filed by the Director General in support of the Application and then be satisfied that it is not in the best interests of the safety, welfare and well-being of the child/ren or young person/s that they should remain with you.

The Director-General has the onus of satisfying the Children’s Court that an Interim Order is necessary on that basis. The threshold is relatively low and it is usually advisable that an Interim Parental Responsibility Order is consented to on a ‘without admission basis’ as contesting an Interim Order may have significant consequences on your matter as it progresses through the Court Process.

Q. What do I need for my first day at Court?

It is important that you ensure that you have all of the documents you were served with by the Caseworker and/or Case manager to provide to the Duty lawyer or your lawyer on the day. If there are any previous Care Orders or Care Plans it is also preferable if you have these available so your lawyer can establish the best way to deal with your matter.

If you receive Centrelink benefits it is also important that you bring a copy of a Centrelink statement showing the income you receive as well as a copy of your last three months bank statements. The purpose for this is to assist the Duty Lawyer or your lawyer in making an application to Legal Aid NSW in order to obtain a grant to appear for you on the day and into the future.

Q. What happens on the first day the matter is listed before the Court?

Usually a matter is initially listed for directions. This is the first occasion that the Court has to deal with your matter and it usually seeks a brief outline of the issues which resulted in the Application being brought before the Court and seeks to determine whether you will seek to challenge an Interim Order being made or whether you consent to a finding on a without admissions basis.

Depending on the circumstances of your matter, your lawyer will advise you as to the most suitable option available regarding this.

The Court will make an Order with respect to Parental Responsibility and will re-list the matter in approximately 14 days for an Establishment Hearing. You will also be directed to file and serve your Affidavit evidence in response to the evidence filed by the Director General prior to the Establishment Hearing. You may wish to challenge an Establishment Finding or consent to a finding on a without admission basis.

Depending on the circumstances of your matter, your lawyer will advise you as to the most suitable option available regarding this.

Steven Ng was admitted as a solicitor in 2006 and has practiced exclusively in the field of Family Law with Adams & Partners Lawyers ever since. He is the Family Law practice director for Adams & Lawyers Partners. Steven is also an experienced litigator and, whilst negotiating a resolution is always the preferred option, he is able to effectively represent his clients’ interests in any Court-based actions if the need arises. Read more about Steven here.