Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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Can the department take my children away from me and place them with another family member or foster carer?
- If a department officer including a caseworker considers that your child is at risk of serious harm or in need of care and protection they have the power and are required by law to remove your child and place him or her in alternative care.
- There are some urgent circumstances where the department can remove your child without a court order. They then need to file an urgent application with the court so the court can hear your side of the story and make a decision about whether the department’s decision was necessary and in the best interests of your child.
- In other circumstances a caseworker from the department may try to assist you in addressing their concerns. The court does not become involved unless the department considers that circumstances have not improved enough and your child remains at risk. They can then ask the court for an order allowing them to remove your child from your care and place your child with another carer. This could be another family member or foster carer.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
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Can I nominate a family member or friend to look after my children while I sort things out?
- Yes you can and family members should be given priority. Make sure you tell the department in writing about the family member or friend at the earliest possible time if it appears the department may apply to remove your child or children.
- Once the department is involved with your family they usually need to do an assessment to ensure any nominated carers can provide a safe environment for your children and that there are no risks.
- The sooner you speak to your caseworker the quicker they can start doing assessments.
- Think carefully about who you nominate and whether they are a suitable carer. You can discuss this with your caseworker or your lawyer
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What can I do if I do not agree with the department's choice of placement for my child?
- First raise your concerns with your caseworker or their supervisor. (Make a note of these conversations in your diary.)
- If you do not feel their response has addressed your concerns then you need to speak with a lawyer and discuss your options.
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Can I speak for myself in court?
- You can usually do this but if you have a lawyer it is better to let them speak for you.
- It can be very frustrating to have to sit still and listen at times but your lawyer knows what information is important and when the best time is to tell the court about it. If you think something that has been said is very important you can make a note of it and tell your lawyer in the next break.
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Can I tell the magistrate my side of the story?
- You will be able to tell the magistrate your side of the story through your lawyer and in your affidavit.
- Keep a diary of all the things you think are important. This will help you clearly tell your lawyer which parts of your story are most important and provide the evidence which will help the magistrate to make a decision in your child's best interests.
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I am scared of my ex-partner and do not want to talk to them or be in the same room at court. What can I do?
- You need to speak to your lawyer about this as soon as possible. Special arrangements can be made for you especially if there is an Apprehended Violence Order (or VRO) in place. Your lawyer may need to ask the magistrate for these special arrangements to be made so that you feel safe.
- You can also ask a friend or relative to come to court with you as a support person to help you to feel safe.
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If my children have been placed in foster care is there a chance I can get them back with me?
- Yes. The court can make orders for children to be returned to their parents if the magistrate is satisfied that is in the child's best interest.
- In most cases the parents will need to show the court that they have taken significant steps to address the issues that led to the department getting involved and to the child being removed. They would also need to show they are able to provide a safe environment for their children and that the child is no longer in need of care and protection.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
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The court can make orders for children to be returned to their parents if the magistrate is satisfied that is in the child's best interest.
- No. You do not have to have a final hearing.
- The case only needs to go to final hearing if the parties cannot agree about the orders.
- If the parties can agree on the orders to be made they can ask the magistrate to make those orders. These are called consent orders. If the magistrate agrees to make consent orders then the case does not need to go to hearing.
- The lawyers can help everyone to negotiate consent orders.
- Just because the parties come to an agreement does not necessarily mean the magistrate will make the consent orders. The court will make its own decision about what it considers is in the best interests of the child.
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What if I am not ready or able to make changes at this time and the court makes Final Orders stating that my children must live with someone else until they are 18 years old. Can I take the case back to court later once I sort things out?
- There are rules that outline when and how you can bring a case back to court or make an application to have your children returned to you.
- Before you can apply for new orders you usually need to show that there is a ‘significant change in circumstances’ since the time that the final orders were made. If you can do this then the court may allow you to apply to have new orders made.
- A ‘significant change in circumstances’ usually means a substantial and lasting change.
- For example if a person had a serious alcohol problem they might need to attend a long-term residential rehabilitation centre. After they leave the centre they may need to continue with weekly relapse prevention counselling. They may be able to show the court there has been a ‘significant change’ if they can provide evidence of completion of these programs and demonstrate that they have significantly addressed their alcohol dependency issues.
- Each case is different and it is up to the magistrate to decide:
- if there has been a significant change in circumstances; and
- whether it would be in the best interests of the children to make the new orders that you seek.
- Our LegalPlan™ membership will allow you to ask lawyers to handle your matter for a Fixed Fee Quote.
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How long will it take for my case to be finalised?
- This really depends on how busy the Children’s Court is. You should expect the proceedings to take a minimum of a few months from start to finish.
- Your lawyer is the best person to tell you how long you will have to wait to get a final hearing date from the court.
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