Going to the Children's Court

When the Department of Communities and Justice (DCJ) remove your children from your care, they must apply to the Children’s Court for court orders. This is called a care application and must be made within three working days of your children being removed. DCJ must give you a copy of the application. You should read it carefully. It will have the date and time of when you need to go to court and where you need to go.

It is very important that you go to court.

If you can’t go for a good reason (like you’re sick) you must call the court and let them know, and make sure you get a medical certificate.

A duty lawyer will help you on the first day of court. For more information, see the When do I get to have my say? section below.

The main decision on the first day is who will make decisions  about your children during the court proceedings. This is called interim parental responsibility. This means who will make decisions about where the children will live and who will look after them in  the short term. 

Interim parental responsibility can be given to the Minister for Families and Communities, and if this happens, the Secretary of DCJ will make decisions and can place your children with suitable family or member of community or with carers you don’t know.

Just because the court might make an order for DCJ to have parental responsibility for your children while the court case is happening does not mean that this will be the order the court makes at the end of the court case. 

All children have their own lawyer. How children’s lawyers represent them in court will depend on their age and circumstances and will be different for each child.

A children’s lawyer will talk to children if they are old enough. They will talk to children about how they are going in care, explain to them about court and help to answer their questions.

Children’s lawyers ask children about their view and wishes so that they can tell the court.

You should tell your caseworker if you want a family member or friend to care for your children. You should do this as soon as possible. DCJ will do an assessment of your family member or friend, which will include checks to make sure they are safe to care for your children. They will also interview them and may do a home visit.

If DCJ refuse to assess your family member or friend and you think they are safe to look after your children, you can speak to your lawyer. Your family or friend may be able to get their own lawyer in court.

For more information, see the How do I get legal help? section below.

DCJ start a matter in the court by filing a care application. The application will set out the reasons DCJ brought the matter to the court.

On the first day at court, you can tell your duty lawyer what you have to say about what is in the application.

During the proceedings, your lawyer can help you have your say (including things that DCJ got wrong) by putting your evidence in writing. This is called an affidavit.

For example, it might be good for the court to know that since DCJ removed your children you have separated from your unsafe partner, now live with a safe family member and the police have applied for an AVO against your partner.

Sometimes your lawyer will advise you to wait and do your affidavit after you have had the opportunity to make changes relating to the reasons that DCJ removed your children.

Your lawyer can also talk to DCJ at court about when you will see your children while the matter is in court. For more information, see the Can I see my kids during the proceedings? section below and Booklet 5: What happens when my kids are in care?

After the first day in court, you should meet with your lawyer as soon as possible.

The next time your case is in court, the magistrate is likely to ask whether you agree that your children were in need of care and protection at the time your children came into care.

This is called establishment. You should get legal advice before the court considers this stage of your case. If you have not had legal advice you can ask the court for an adjournment so that you can speak to a lawyer.

If you agree to establishment, the proceedings will move on to the placement stage of proceedings, which involves making decisions about the future care of your children.

If you do not agree to establishment, the magistrate will give your case a hearing date which is when the magistrate will consider all the evidence and make a decision.

The court needs to be satisfied that your children were in need of care and protection at the time DCJ removed them from your care. Children can be in need of care and protection for many reasons. For example if:

• your children’s needs were not being met, for example if they did not have enough to eat, were going to school dirty, were not going to the doctor when sick or were not attending school
• your children have been hurt or are at risk of being hurt in the future because of violence in the home such as physical abuse, punishment or sexual abuse, or
• your children were at risk of harm because adults in the home are using illegal drugs or drinking too much alcohol.

A DRC is a meeting that happens at court. All of parties and their lawyers sit around a table with a children’s registrar to talk about your children and to see if everyone can agree on the care arrangements that will best look after your children and keep them safe.

A DRC is a chance to hear from DCJ and also from your children’s lawyer about what they think is best for your children and is also a chance for you to have your say.

A DRC usually happens after a care plan is filed at court. Sometimes the court will make an order for the parties to go to a DRC before a care plan is filed as well.

Your children’s caseworkers will attend the DRC. You can ask for a support person to come with you or someone from your family or community to be at the DRC.

The children’s registrar decides who attends the DRC.

After establishment, the court will usually direct DCJ to file a care plan. Before the care plan is filed with the court, DCJ must talk to you about their plans for the care of your children.

For Aboriginal or Torres Strait Islander children, there is a requirement for DCJ to consult with families and to prepare a cultural plan. This includes how the children will keep connected to their culture and their identity and this information needs to be in the care plan and cultural plan for the children.

A care plan sets out what DCJ thinks should happen and what orders the court should make including if they think your children should be returned to your care. This is called restoration.

After the care plan has been filed, you will get a copy and you will have a chance to respond to it. If you do not agree with the care plan, you can say in your affidavit what you think the care arrangements for your children should be and why.

The court then decides whether to accept DCJ’s recommendation about what the long-term arrangements for the children should be, including whether they should be returned to your care.

Although DCJ propose a care plan, only the magistrate can make the decision about the final orders which should be made about your children. It is up to the magistrate to approve the care plan.

All parties in the case will let the court know what final order they want the court to make about the children. If there is a disagreement about what should happen with the arrangements for the children, then the magistrate will decide at a final hearing.

The magistrate will make directions about what the parties have to do to prepare for the final hearing including when everyone has to file their evidence. You will be given copies of the evidence.

As well as the party’s affidavits, evidence might include subpoenaed records held about you or your family by the police, hospitals, doctors, schools, or other agencies. You can speak to your lawyer about whether to issue a subpoena to any agency for evidence to help your case.

Other people like members of your family, your treating doctors or landlord can also provide evidence.

There might also be a report from an independent expert (such as a clinician from the Children’s Court Clinic), appointed to assess your family and give an expert opinion on whether your children should be returned to your care.

An assessment by the Children’s Court Clinic is a report by a social worker or psychologist who is called a clinician. A children’s court clinician is independent from DCJ.

The clinician will interview the parties and your children and look at the affidavit evidence and records from people like doctors, schools and police.

Once the assessment is written, it is sent to the court and provided to all the parties.

You should speak to your lawyer about whether it would be helpful for your case to make an application for a clinic assessment.

If DCJ have interim parental responsibility for your children, they will decide how much contact you will have with your children until the court case finishes. This will be written in a document called the Summary of Proposed Plan.

The time you spend with your children can have different names such as family time, access or visitation. These mean the same as contact. If you are not happy about the contact you are having, you should speak with your caseworker. If agreement cannot be reached, you should speak with your lawyer.

Contact is arranged by DCJ and is usually supervised. Sometimes supervision can be by a relative.

The contact supervisor will write a contact report after each of your visits, with details about how the visit went and what happened. Remember that contact reports can be used as evidence in court.

Contact visits are for you to spend time with your children.

Tips for contact visits

• Make sure that you turn up to all your contact visits on time.
• Stay for the whole time.
• Behave appropriately and spend the contact time with your children instead of talking with the others or on the phone.
• Always ask the contact supervisor for permission to take photos with your phone or show your children something on your phone.
• Otherwise put your phone on silent during contact.
• Do not bring other people to the contact unless you have arranged it with DCJ.