15.3 Departmental intervention when a child requires protection from a parent with a Family Court of Australia parenting order
Purpose
This procedure outlines the process for departmental intervention when a child requires protection from a parent with a Family Court of Australia (the Family Court) parenting order.
Authority
- Child Protection Act 1999
- Family Law Act 1975
When departmental intervention is required
The department will take steps to intervene when it is determined that a child is in need of protection, irrespective of the presence of Family Court orders. If, following an investigation and assessment, it is determined that:
- a child is in need of protection from the parent with whom the child lives; and
- the other parent is assessed as able and willing to safely care for the child; and
- the child's protective needs would be met by a change to the Family Court orders,
the CSO will:
- advise the protective parent of the need to apply to the Family Court for variation of the order; and
- provide written information about the outcome of the investigation and assessment to enable the parent to apply for legal aid if required.
If the other parent consents to a change to the Family Court orders, an application for consent orders may be filed with the Family Court. Assistance with drawing up the application and consent order can be sought from Legal Aid Queensland, community legal centres, Relationships Australia or the parents' own solicitors.
If the other parent will not consent to a variation of the Family Court order, the CSO will advise the protective parent to seek legal aid to lodge the application in the Family Court.
When a child requires ongoing protection
If the child requires ongoing protection while the parent applies for variation of Family Court orders, an application for a child protection order in the Childrens Court will be made. In this circumstance, in order to place the child in the custody of the protective parent, the department will seek an interim order granting custody of the child to the chief executive, restricting contact, and request an adjournment until the matter is listed for interim hearing in the Family Court.
The department should ensure that all relevant information is provided to the Family Court to enable the court to make the most appropriate order. Advice must be sought from Court Services Unit about the appropriate level of involvement of the department in the Family Court proceedings.
If the protective parent is unable to obtain legal aid and cannot afford to fund the application in the Family Court, the department can only seek a child protection order by presenting evidence that the safe parent cannot protect the child because of the existence of a Family Court order, which they cannot afford to seek to vary. The use of a directive order about contact may be the only alternative where the child is at risk of harm on contact visits, but it should not be used as a long-term option. In some cases, a decision to make an application under the Child Protection Act 1999 for a child protection order granting custody to the chief executive, and place the child with the protective parent may be unavoidable. However, such arrangements are undesirable and should be avoided if there is another alternative.
In the circumstances where the protective parent cannot afford to fund the application, it is preferable that the department provides practical assistance to the parent to make the application. Once the application is filed, the Family Law Act 1975, rule 6.02(2), requires the applicant to serve the department. Once served, the department is party to the application and can present evidence in relation to child protection matters to support the application of the protective parent. In some limited circumstances, it may be appropriate for the department to make the Family Court application seeking orders in favour of the protective parent.
Advice must be sought from Court Services Unit about the best way to proceed in each individual case. Becoming a party to Family Court proceedings has a financial cost and other implications, including the cost of engaging Crown Law, and no action should be taken in the Family Court without prior consultation with Court Services Unit.
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- Last updated
- 30 June 2007
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