She says she was advised by [the child protection department] to restrict contact. These proposals are reviewed before the responses from stakeholders are considered. The first proposal is for child protection agencies to stay engaged with more parents when they advise them to apply to the family court. In some cases, no further intervention will be required because the desired orders are achieved by consent.
In other cases the intervention required will be limited to providing a letter detailing the nature of the advice given to the applicant by the child protection department. Kelly and Fehlberg describe this type of intervention in their study of cases in the ACT—albeit in relation to a small sample. However the consequences of not providing it would appear to be that some children are placed at risk. If the recommendation above, of specialist units within child protection services dealing with family law work, is accepted, these units could be a resource for litigants referred to the family courts by the agency, as well as for the court in requesting investigation of child abuse.
This may ameliorate the burden on state child protection departments. When dealing with a family and determining issues affecting that family, the capacity to exercise all jurisdictions is sensible and avoids inconsistent responses from different courts on the same facts. The first was the complexity of the task that would be faced by magistrates called upon to make orders under both child protection and family law. Cases involving child protection issues, including family violence, are complex cases.
Adding Family Law Act proceedings to the list of matters to which they must attend would add significantly to their tasks. In child protection proceedings where contact between parents arises as an incidental matter it is difficult to see an objection in principle to this being determined in a state child protection court.
Adding another jurisdiction to their workload would require additional resources. There will be cases where a simple referral is all that is required and the applicant has the capacity to secure the orders needed. However, this is clearly not sufficient to provide effective protection for all families and some children appear to be endangered by this gap in the system. Alternatively it may be that what is required in some cases is not support from a child protection agency but from a court support service that would facilitate the referral and access to other supports.
It is those children and their families who pay the price for the failure to imagine a better and undivided system, and to implement it. This should include the expanded powers recommended in Chapter It would have jurisdiction to make both types of orders. For example, while magistrates courts presently have the power to make orders under pt VII of the Family Law Act , they appear to be disinclined to use those powers. As noted in Chapter 16, this may be because:.
However, there is a developing use of FDR in child protection cases see Chapter Recommendation 19—3 Where a child protection agency investigates child abuse, locates a viable and protective carer and refers that carer to a family court to apply for a parenting order, the agency should, in appropriate cases:. Protection applications in Victoria may be made by the Secretary, or by a member of the police force: Children, Youth and Families Act Vic ss , 1 , 3 , The effect of registering an order is that it has the same force and effect as a family court order under p t VII of the Act.
But note that much of what is given under s 69J is taken away by s 69N which requires the transfer to family courts of contested proceedings, except with the consent of the parties. There may be room for debate about this issue, which will depend on interpretation of particular state legislation.
Overlapping concerns Change of practice of child protection agencies The following are some good practice guidelines developed by the IDRS Parents Project based on first-hand experience:. Care matters are heard in closed courts. This means only court officers, lawyers and parents are allowed into the court room when their case is being heard.
Parenting Capacity Assessment in Child Protection Matters | Social Work Professional Development
Anyone else must be approved by the magistrate. The child, who is subject to the care proceedings, does not attend the proceedings. If the child is over 12 years of age and is able to give instructions to his or her lawyer, they may request to attend.
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In other areas of NSW care proceedings are heard in NSW local courts on specific days in a court room set aside for care matters. Child removal can be the impetus for the mother to disclose abuse or seek help.
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However, the mother may be fearful or unable to initiate this because her partner controls any engagement she has with outsiders. When supporting mothers with intellectual disability involved in care matters, ensure that you are able to have time alone with them without their partner being present. Make it clear that you are there to support her. Sometimes a mother will be fearful about coming into contact with the father of the child at the court house.
If this is the case, contact the court registrar before the Court dates to arrange for the mother to have a safe means to enter and leave the court as well as a safe place to wait. Where the father of the child is incarcerated and is included in the care proceedings via Audio Visual Link, the mother may be scared about him seeing her. Before each court date check with the parent if they have been given any new documents. Offer to read through these with them.
Usually the day before the parent goes to court for the first time the Community Services workers will serve them with a bundle of documents including the care application and initiating report. These documents outline the grounds for removal. These documents are often wordy and beyond the reading ability of a parent with mild to borderline cognitive functioning.
Parents with intellectual disability often become very distressed on receiving these documents because they often feel ashamed and frustrated that they cannot read them.
Care proceedings on average take close to 12 months to finalise. There will be a series of court dates that the parents will be required to attend. Before each court date, assist the parent to ring his or her lawyer to check if there are any new documents, and to find out if there is anything that the parent needs to obtain before court, or something you should discuss or prepare with the parent. Unless told otherwise by the lawyer or Community Services, the parent should turn up at court at am.
Each time the parent goes to court they should bring all their paperwork. Talk to the parent about what to wear to court.
They should wear smart causal clothes and dress neatly and modestly. They are likely to be there for several hours. On some occasions, they will be waiting nearly all day. Prepare the parent for the wait and advise them to bring a drink, snacks and something to listen to or read. If the parent thinks, or has been told, by Community Services that their child may be removed, they should seek legal advice as soon as possible. The lawyer may be able to advocate on their behalf before the matter goes to court. In some cases, this may avoid the child being removed.
Well-being of children
If the child is removed, the efforts made by the lawyer and any services prior to removal may be evidence in the court proceedings, for example, that the parent was trying to work with Community Services. Once Community Services files a care application, the court registry informs Legal Aid and requests duty lawyers to be available to represent the parents and the child when the matter is listed before the court.
These lawyers may be Legal Aid solicitors or private practitioners approved and listed on the Care and Protection panel. A mother and a father are appointed separate legal representatives. This is to ensure there is no conflict of interest and each parent can give their own instructions.
On the first day of court the parent will need to fill out a Legal Aid grant form. It is helpful if, on the first day at court, they bring with them a recent bank statement and proof of Centrelink payment to attach to his or her Legal Aid application. The solicitor will:.
Most of the information the solicitor gives to the court will be in writing. The court rules govern when a solicitor can talk in court or ask questions. Sometimes parents can feel frustrated that their solicitor is not advocating hard enough or failing to tell the magistrate about things the parent thinks are important. As a worker or advocate, it is important to explain to the parent about the court process and how the solicitor has to operate within that process.
Sometimes the advice a solicitor gives the parent can be hard to hear.