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Care and protection matters
Table of Contents
Principles and jurisdiction
Overview
[2-1000]
Care and protection jurisdiction of the Children’s Court
[2-1020]
Culture
[2-1040]
Removal of child into care and protection
[2-1060]
Aboriginal and Torres Strait Islander principles
[2-1080]
Permanency planning
[2-1120]
Care plan template
[2-1140]
Operating a trauma-informed court
[2-1160]
Further reading
Care tree
[2-2000]
Definitions
[2-2020]
Closed court
[2-2030]
Children and young persons to whom Act applies
[2-2040]
Parties
[2-2060]
Service
[2-2080]
Parties are encouraged to consult but this is not a consent jurisdiction
[2-2100]
Minute of care order
[2-2120]
Expedition and adjournments — s 94
[2-2140]
Legal test
[2-2160]
Hearings
[2-2180]
Unreasonable conduct
[2-2200]
Section 61 and s 90 applications
[2-2210]
Active efforts
[2-2220]
Application under s 61 — first return date
[2-2240]
Establishment — second return date
[2-2260]
Directions in relation to the placement stage — third step
[2-2280]
Joined application — first listing
[2-2300]
Assessment order
[2-2320]
Dispute resolution conferences
[2-2340]
Hearing date sought
[2-2360]
Readiness hearing
[2-2380]
Final order — s 61 — supported by all parties and court agrees
[2-2400]
Section 90 application
[2-2420]
Guardian ad litem: s 100 — child or young person
[2-2440]
Expedition and adjournments
[2-2460]
Re-listing for non-compliance with directions
[2-2480]
Vacate a hearing date
[2-2500]
Emergency care and protection orders
[2-2520]
Children’s Court may dispense with service — s 256A
[2-2540]
Exclusion of particular persons from proceedings — s 104A
[2-2560]
Aboriginal or Torres Strait Islanders
[2-2580]
Parent capacity order — s 91B(b)
[2-2600]
Overseas travel
[2-2620]
Costs in care proceedings
[2-2640]
Transferring a child protection order
[2-2660]
Order for supervision
[2-2680]
Prohibition orders — s 90A
[2-2700]
Order for undertakings — s 73
[2-2720]
Withdrawal of care application — s 66
[2-2740]
Apprehended violence order (AVO)
[2-2760]
Applications for contact orders under s 86
[2-2780]
Resources
Cross-over kids
[2-3000]
Cross-over kids: introduction
Cross-over kids: the drift of children from the child protection system into the criminal justice system
P Johnstone
Care-experienced children and the criminal justice system
A McGrath, A Gerard and E Colvin
“Crossover kids”: Offending by child protection-involved youth
S Baidawi and R Sheehan
Children’s Court of NSW: 2019
P Johnstone
[2-4000]
Care and protection and the Children’s Court of NSW
Particular aspects of the care jurisdiction
Care appeals
Conclusion
Children’s Court update 2019
P Johnstone
[2-5000]
Introduction
Updates in the care and protection jurisdiction
Conclusion
Important cases
Aboriginal and Torres Strait Islander placement principles
[3-1000]
Re Lucinda Porter (No 2) [2023] NSWChC 2
Re Malakhai [2022] NSWChC 6
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
Department of Communities and Justice and Masters [2020] NSWChC 7
Adoption of B [2019] NSWSC 908
Fischer v Thompson (Anonymised) [2019] NSWSC 773
Re Timothy [2010] NSWSC 524
Re Victoria and Marcus [2010] CLN 2
Adoption
[3-1020]
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
Department of Communities and Justice and Jake [2020] NSWChC 2
Adoption of B [2019] NSWSC 908
Fischer v Thompson (Anonymised) [2019] NSWSC 773
Department of Communities and Justice and the Stonsky Children [2019] NSWChC 8
Adoption of SRB, CJB and RDB [2014] NSWSC 138
Bias
[3-1040]
Polsen v Harrison [2021] NSWCA 23
JL v S, DFaCS [2015] NSWCA 88
Care and protection
[3-1060]
Department of Communities and Justice (DCJ) and Skyla [2023] NSWChC 12
DCJ and Evie and Grace [2023] NSWChC 1
Y (a pseudonym) v Secretary, Communities and Justice (No 4) [2021] NSWDC 81
Department of Communities and Justice and Jacinta [2021] NSWChC 5
CXZ v Children’s Guardian [2020] NSWCA 338
Secretary, Department of Communities and Justice v B [2020] NSWDC 736
A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872
Re Benji and Perry [2018] NSWSC 1750
NU v NSW Secretary of Family and Community Services [2017] NSWCA 221
AA v DFaCS [2016] NSWCA 323
DFaCS re Eggleton [2016] NSWChC 4
Re June [2013] NSWSC 969
Re Sophie (No 2) [2009] NSWCA 89
Re Jayden [2007] NSWCA 35
SB v Parramatta Children’s Court [2007] NSWSC 1297
Re Alistair [2006] NSWSC 411
Care plans
[3-1080]
DCJ and Evie and Grace [2023] NSWChC 1
JE v Secretary, DFaCS [2019] NSWCA 162
DFaCS and Nicole [2018] NSWChC 3
DFaCS and the Slade Children [2017] NSWChC 4
C v S, FaCS [2016] NSWDC 103
Change in circumstances/rescission or variation of care plans
[3-1100]
LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156
DFaCS and Bridget [2019] NSWChC 4
Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220
FaCS v Kestle [2012] NSWChC 2
Re Campbell [2011] NSWSC 761
Re Hamilton [2010] CLN 2
S v Department of Community Services [2002] NSWCA 151
Child Representatives/Independent Legal Representative (ILRs)
[3-1120]
GR v Secretary, Department of Communities and Justice [2021] NSWCA 301
GR v Department of Communities and Justice [2020] NSWSC 1622
DFaCS and the Prince Children [2019] NSWChC 2
DFaCS and Leo [2019] NSWChC 3
SL v S, DFaCS [2016] NSWCA 124
Re Jayden [2007] NSWCA 35
Contact orders
[3-1140]
SM v Director-General, Department of Human Services [2010] NSWDC 250
Re Hamilton [2010] CLN 2
Re Liam [2005] NSWSC 75
Re Helen [2004] NSWLC 7
Convention on the Rights of the Child
[3-1160]
Re Henry [2015] NSWCA 89
JL v S, DFaCS [2015] NSWCA 88
Re Tracey (2011) 80 NSWLR 261
Costs
[3-1180]
Department of Communities and Justice (DCJ) and Layla, Jasmine and Zara [2023] NSWChC 14
Department of Communities and Justice (DCJ) and Katie [2023] NSWChC 11
Y v Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477
Re: A Costs Appellant Carer (a pseudonym) v Secretary, Department of Communities and Justice [2021] NSWDC 197
Re A Foster Carer v DFaCS (No 2) [2018] NSWDC 71
S, DFaCS and the Knoll Children (Costs) [2015] NSWChC 2
Experts’ reports
[3-1200]
J & T v DCJ [2023] NSWDC 78
Jones v Booth [2019] NSWSC 1066
Department of Family and Community Services and the Jacobs children [2019] NSWChC 11
DFaCS and Amber [2019] NSWChC 10
Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599
Hayward v R (2018) 97 NSWLR 852
R v Hayward [2017] NSWSC 1170
Guardian ad litem
[3-1220]
CM v Secretary, Department of Communities and Justice [2022] NSWCA 120
GR v Secretary, Department of Communities and Justice [2021] NSWCA 267
GR v Secretary, Department of Communities and Justice [2021] NSWCA 157
CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442
GR v Department of Communities and Justice [2020] NSWSC 1622
Identification of children in the media
[3-1240]
Burton v DPP [2022] NSWCA 242
Burton v DPP (NSW) [2021] NSWSC 1230
Burton v DPP (2019) 100 NSWLR 734
AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046
Secretary, DFaCS v Smith (2017) 95 NSWLR 597
Joinder
[3-1260]
In re a Child [2022] NSWSC 671
AB and JB v Secretary [2021] NSWDC 626
EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226
Secretary, DFaCS and Krystal [2019] NSWChC 6
GO v Secretary, Department of Communities and Justice [2017] NSWDC 198
Department of Communities and Justice and Lara [2017] NSWChC 6
Jurisdiction
[3-1280]
DN v Secretary, DCJ [2023] NSWSC 595
Department of Communities and Justice (DCJ) and May, June and Roy [2023] NSWChC 15
Secretary, Department of Communities and Justice v KH [2022] NSWCA 221
Harris (pseudonym) v Secretary, Department of Communities and Justice [2021] NSWCA 261
JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539
A v Department of Communities and Justice [2021] NSWSC 937
Department of Communities and Justice and Jacinta [2021] NSWChC 5
Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3
A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43
Department of Family and Community Services and the Jacobs children [2019] NSWChC 11
DFaCS and Amber [2019] NSWChC 10
D v C; Re B (No 2) [2018] NSWCA 310
Bondelmonte v Bondelmonte (2017) 259 CLR 662
DFaCS and the Slade Children [2017] NSWChC 4
DFaCS and the Eastway Children [2017] NSWChC 3
Re Madison (No 2) [2015] NSWSC 27
AQY and AQZ v Administrative Decisions Tribunal of NSW [2013] NSWSC 1028
Language and culture
[3-1300]
Other cases
Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5
Non-accidental injury
[3-1320]
DCJ and Evie and Grace [2023] NSWChC 1
SL v S, DFaCS [2016] NSWCA 124
Parens patriae
[3-1340]
Re Leonardo [2022] NSWSC 1265
GR v Secretary, DFaCSJ [2019] NSWCA 177
S, DFaCS re “Lee” [2015] NSWSC 1276
Re Tilly v Minister, FaCS [2015] NSWSC 1208
TF v DFaCS [2015] NSWSC 694
“Parent” definition
[3-1360]
Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3
Secretary, DFaCS and Krystal [2019] NSWChC 6
S, DFaCS and the Marks Children [2016] NSWChC 2
Permanency planning
[3-1380]
DCJ and Evie and Grace [2023] NSWChC 1
Department of Communities and Justice and Murphy [2020] NSWChC 12
Department of Communities and Justice and Jack and Jill [2020] NSWChC 3
Department of Communities and Justice and Jake [2020] NSWChC 2
Department of Communities and Justice and Teddy [2020] NSWChC 1
BA v Secretary, Department of Communities and Justice [2019] NSWCA 206
Department of Communities and Justice and the Stonsky Children [2019] NSWChC 8
Proof
[3-1400]
Isles and Nelissen [2022] FedCFamC1A 97
DCJ and Janet and Xing-fu [2022] NSWChC 7
NU v NSW Secretary of Family and Community Services [2017] NSWCA 221
Re Sophie (No 2) [2009] NSWCA 89
M v M FC 88/063 (1988) 166 CLR 69
Realistic possibility of restoration
[3-1420]
Department of Communities and Justice (DCJ) and the Dalton Tomkins Children [2023] NSWChC 10
DCJ and Evie and Grace [2023] NSWChC 1
Secretary, Department of Communities and Justice v KH [2022] NSWCA 221
GR v Secretary, Department of Communities and Justice [2022] NSWCA 153
Re Malakhai [2022] NSWChC 6
Finn, Lincoln, Marina and Blake Hughes [2022] NSWChC 4
Department of Communities and Justice and Jamzie [2022] NSWChC 1
Secretary, Department of Communities and Justice v KH [2021] NSWCA 308
GR v Secretary, Department of Communities and Justice [2021] NSWCA 267
GR v Department of Communities and Justice [2021] NSWSC 1081
Y v Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392
Department of Communities and Justice and Bloom [2021] NSWChC 2
Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5
DFaCS and the Steward Children [2019] NSWChC 1
Re Tanya [2016] NSWSC 794
Re M (No 8) [2016] NSWSC 641
Re M (No 6) [2016] NSWSC 170
S, DFaCS and the Harper Children [2016] NSWChC 3
Re Henry [2015] NSWCA 89
Re Tracey (2011) 80 NSWLR 261
Short-term orders
[3-1440]
Department of Communities and Justice and Teddy [2020] NSWChC 1
Department of Communities and Justice and Jack and Jill [2020] NSWChC 3
Department of Communities and Justice and Jake [2020] NSWChC 2
Department of Communities and Justice and the Stonsky Children [2019] NSWChC 8
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Re Jayden [2007] NSWCA 35
Unacceptable risk
[3-1460]
DCJ and Evie and Grace [2023] NSWChC 1
Isles and Nelissen [2022] FedCFamC1A 97
DCJ and Janet and Xing-fu [2022] NSWChC 7
A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872
Re Benji and Perry [2018] NSWSC 1750
AA v DFaCS [2016] NSWCA 323
DFaCS re Eggleton [2016] NSWChC 4
S, DFaCS and the Marks Children [2016] NSWChC 2
Re June [2013] NSWSC 969
Unexplained injury
[3-1480]
DCJ and Harry [2023] NSWChC 5
DCJ and Evie and Grace [2023] NSWChC 1
Legislation
Legislation
[4-1000]
Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Regulation 2022
Children (Protection and Parental Responsibility) Act 1997
Children’s Court Act 1987
Children’s Court Regulation 2014
Children’s Court Rule 2000
Community Welfare Act 1987
Assessments
Children’s Court Clinic
[5-1000]
Children’s Court Clinic
Further references
Practice notes, guidelines and protocols
Practice Notes
[6-1000]
Practice Note 2: Initiating report and service of the relevant portion of the community services file in care proceedings
[6-1020]
Practice Note 3: Alternative dispute resolution procedures in the Children’s Court
[6-1040]
Practice Note 5: Case management in care proceedings
[6-1060]
Practice Note 6: Children’s Court Clinic assessment applications and attendance of authorised clinicians at hearings, dispute resolution conferences and external mediation conferences
[6-1080]
Practice Note 9: Joint conference of expert witnesses in care proceedings
[6-1100]
Practice Note 10: Parent capacity orders
[6-1120]
Practice Note 13: Section 38 care plans
[6-1140]
Practice Note 14: Standardised care orders
[6-1160]
Practice Note 15: Requests for the provision of services to facilitate restoration in care proceedings
[6-1180]
Practice Note 17: Designated agencies in Children’s Court care proceedings
[6-1190]
Practice Note 18: Winha-nga-nha List
Guidelines
[6-2000]
Contact guidelines
[6-2020]
NSW care circles procedure guide
[6-2040]
Guidelines for conducting a dispute resolution conference
[6-2060]
Standardised care orders
Protocols
[6-3000]
Protocol for Children’s Registrars conducing Care Call Overs
[6-3020]
Protocol for return of subpoenas for production at Parramatta Children’s Court
[6-3040]
Protocol for return of subpoenas for production at Wagga Wagga Children’s Court
Articles and other resources
Attachment goes to court
P Granqvist et al
[7-1000]
Abstract
Forensic evidence in child protection proceedings
P Johnstone
[7-2000]
Introduction
Specialist nature of the Children’s Court
Non-accidental head injury
Non-accidental head injury in care proceedings
Relevant case law
Forensic evidence in child protection proceedings
Conclusion
Expert clinical evidence in care proceedings
P Johnstone
[7-3000]
Introduction
Specialist nature of the Children’s Court role and structure of the Children’s Court
The use of expert clinical evidence
The emerging importance of advances in the understanding of brain development, particularly in the area of youth crime
Conclusion
Still unseen and ignored
J Tucci and J Mitchell
[7-4000]
Introduction
Methodology
Survey sample: critical findings
Taking action helps children
Discussion
Conclusion
Data availability statement
Ethics statement
Author contributions
Funding
Acknowledgments
Conflict of interest
Publisher’s note
Supplementary material
References
Parenting in a new environment
H Tafadzwa Mugadza, V Williams Tetteh, A Renzaho and B Stout
[7-5000]
Introduction
Pre- and post-migration experiences
Methodology
Results
Discussion
Implications
Appendix 1: Methodology
Appendix 2: Interview guide and focus group schedule
References
Recognising and addressing the needs of children and families impacted by Neonatal Abstinence Syndrome
J Oei
[7-6000]
Neonatal Abstinence Syndrome (NAS): a modern public health crisis
NAS is not the only problem facing babies exposed to prenatal drugs
Why are children with NAS and prenatal exposure at risk of lifetime harm?
Is there hope for children with NAS?
What can we do?
Conclusions
Toward access and equity: disability-informed practice in child protection — a guide to assessing parenting capacity with parents with intellectual disability
S Collings, M Spencer and P Kong
[7-7000]
Abstract