Things have changed and I want my kids back: what can I do?

If you think things have changed since the Children’s Court made orders, you can ask the court for the orders to be changed or cancelled.

This is called a section 90 application and can be made by anyone with an interest in your child’s welfare including you. If someone else makes a section 90 application, you will get a copy of the application.

A section 90 application is different from an appeal. For information on appeals, see Booklet 4: The Children’s Court made a decision I am unhappy about: what can I do?

The court will not change or cancel orders without very good reasons. This is because final orders should mean stable and secure arrangements for children for the long term. It is up to the person who makes the application to prove to the court that there has been a significant change of circumstances since the final orders were made.

You should get legal advice before you make a section 90 application or if someone has made a section 90 application about your child.

A lawyer from Legal Aid NSW or the Aboriginal Legal Service (ALS) may be able to help you with your section 90 application. For more information, see the How do I get legal help? section below.

Before you can make an application asking the court to change or cancel an order, you must ask the court for permission. This is called asking the court for leave.

The magistrate will only agree to hear the application if they think there has been a significant change in circumstances since the orders were made.

To decide this, the magistrate will look at the reasons your children were removed and will decide whether things have changed enough to consider changing the orders.

The magistrate must consider the best interests of children as the most important consideration and so in some cases, even if there have been big changes, the magistrate will not give leave. If the court does not give leave, this will mean the end of the court matter.

If you want to apply for leave to change or cancel an order, you will need to file a section 90 application and an affidavit. The affidavit is your written evidence about the significant change in circumstances since the final orders were made, and why you say that the court should give you leave. Your lawyer can help you with these documents.

In the affidavit, you should include things like:

• what you have done differently since your children were removed from your care
• how your children have been doing since they were removed
• what contact you have had with your children, and
• what your plans are for the children if the court makes the orders you are seeking.

Your case might be helped by evidence from people or organisations you have been working with to address the reasons the children were removed.

If the court gives you leave, the magistrate will work out what the best next steps are for your matter. This could include orders for a care plan, a dispute resolution conference (DRC) or an assessment report. For more information, see Booklet 2: Going to the Children’s Court.

If there no agreement about what should happen for your children, then there will be a hearing for the magistrate to decide.