Section 8 sets out the objects of the Act:

The Act applies to children who ordinarily live in NSW, are present in NSW, have a sufficient connection to NSW, or are subject to an event or circumstances occurring in NSW that gives rise to a report, including those outside of NSW: s 4(1), (2). Section 4(3) provides a list of factors which may be considered in determining whether a child has a sufficient connection to NSW.

The paramount principle under which the Act is to be administered is that in any action or decision concerning a particular child, their safety, welfare and well-being is paramount: s 9(1).

This principle prevails over all other considerations, even where it conflicts with the rights or interests of the parents: Re Tanya [2016] NSWSC 794 at [69].

Subject to the paramount principle, other principles to be applied in the administration of the Act are (s 9(2)):

The principle of least intrusive intervention in s 9(2)(c) is confined to when it is necessary to take action in order to protect a child from harm. There must be a prospect of harm if action is not taken, and the question is then the nature of the action. Where the court is considering whether or not to displace existing care arrangements and return a child to the child’s family, the principle has limited application, although the preference for existing care arrangements to continue may still be a material matter: Re Tracey (2011) 80 NSWLR 261 at [79].

Australia’s treaty obligations under the United Nations Convention on the Rights of the Child are also relevant to determinations under the Act: Re Tracey, above, at [43]–[49]. Although the paramountcy principle is reflected in Art 3.1 of the Convention, other Articles may be relevant in determining the best interests of the child, particularly Arts 3.2, 5, 8.1, 9.1, 12.1, 29 and 30.

For applications made on or from 15 November 2023, subject to the “paramountcy principle”, functions under the Act must be in accordance with the principle of active efforts: s 9A(1), (5); Sch 3 Pt 14 cl 2(a). The “principle of active efforts” means making active efforts to prevent the child from entering out-of-home care, and in the case of removal, restoring the child to the parents, or if not practicable or in the child’s best interests, with family, kin or community: s 9A(2). Active efforts are to be timely, practicable, thorough and culturally appropriate, amongst other things, and can include providing, facilitating or assisting with access to support services and other resources — considering alternative ways of addressing the needs of the child, family, kin or community: s 9A(3), (4).

Section 10A(1) defines “permanent placement” as “a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person”.

Subject to ss 8 and 9, a child in need of permanent placement is to be placed in accordance with the permanent placement principles: s 10A(2). Section 10A sets out a hierarchy to prioritise the placement of children with family: A v Secretary, Family and Community Services [2015] NSWDC 307 at [473]–[476].

The Aboriginal and Torres Strait Islander Principles are enshrined in Ch 2, Pt 2 of the Children and Young Persons (Care and Protection) Act.

Section 11(1) provides that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children with as much self-determination as is possible.

Section 12A(2) sets out the five elements which make up the Aboriginal and Torres Strait Islander Children and Young Persons Principle: (a) prevention; (b) partnership; (c) placement; (d) participation, and (e) connection, which apply to the administration of the Act, as relevant to the decision being made, in relation to Aboriginal and Torres Strait Islander children and young persons: s 12A(1), (3).

These are aimed at enhancing and preserving Aboriginal children’s sense of identity, as well as their connection to their culture, heritage, family and community: Second Reading Speech, Legislative Council, Family is Culture Review Report 2019, p 250.

Proper implementation of the Aboriginal and Torres Strait Islander Principles requires an acknowledgement that the cultural identity of an Aboriginal child is “intrinsic” to any assessment of what is in the child’s best interests: The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 at [116]–[117].

Particular principles regarding Aboriginal and Torres Strait Islander children and their special heritage are enunciated by s 13 and are reflected particularly in ss 78(2A), 78A(4), 83(3A), 83A. Broadly speaking, these principles provide that if Aboriginal and Torres Strait Islander children are to be removed from their parents, they should be placed with (s 13(1)):

Section 5 provides the relevant definitions in relation to the identification of Aboriginal and Torres Strait Islander children. The decision of Hackett (a pseudonym) v Secretary, DCJ [2020] NSWCA 83, although relating to the Adoption Act 2000, provides guidance in respect of the application of s 5. “There is no requirement in order … to be an Aboriginal child for the child to have a specified proportion of genetic inheritance” and “descent is different from race”: Hackett per Leeming JA at [53]; [86]; Adoption Act, s 4(1), (2).

The late identification, or the de-identification, of children by DCJ can have consequences for planning and placement so, in cases where identification is an issue, the court will be assisted by timely evidence from the parties.

If a child has one Aboriginal and Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the principles of the Act: s 13(4). Arrangements must be made to ensure the child has the opportunity for continuing contact with the other parents’ family, community and culture: s 13(5).

In determining placement, account is to be taken of the child’s expressed wishes and whether they identify as an Aboriginal and Torres Strait Islander person: s 13(2).

In relation to placement with non-Aboriginal and Torres Strait Islander persons, no final order allocating sole parental responsibility for an Aboriginal and Torres Strait Islander child to a non-Aboriginal and Torres Strait Islander person may be made except after extensive consultation and with the express approval of the Minister for Aboriginal Affairs and the Minister for Community Services: s 78A(4).

Section 83A(3) provides, for care applications made on or after 15 November 2023, that a permanency plan for an Aboriginal and Torres Strait Islander child must comply with permanent placement principles, the Aboriginal and Torres Strait Islander Child and Young Persons Principle and the placement principles under s 13. The plan must also include a cultural plan that sets out how the child will maintain and develop connection with family, community and identity: s 83A(3)(b). For earlier applications, see former s 78A(3). For further information, see [40-080] Court’s consideration of care and permanency plans.

Further, if an Aboriginal and Torres Strait Islander child is placed with a non-Aboriginal and Torres Strait Islander carer, the following principles are to determine the choice of a carer (s 13(6)):

The Aboriginal and Torres Strait Islander placement principles under s 13 are an aspect of the important principle in s 9(2)(d) that a child’s cultural ties should be preserved when they are removed from their family. However, s 13(1) must not be blindly implemented without regard to the principle of paramountcy and the other objects and principles set out in ss 8 and 9: Re Victoria and Marcus [2010] CLN 2. In the exceptional case of Re Victoria and Marcus, the children were placed with carers who were not Aboriginal rather than their Aboriginal grandparents as the court found there was a real risk the grandparents would actively discourage the children from identifying with their Aboriginal cultural links, “contrary to the whole purpose and spirit of the Aboriginal Placement Principles set out in s 13(1)”: at [52].

The principles in s 13(1) do not apply to emergency placements to protect a child from serious risk of immediate harm, or to a placement of less than two weeks duration: s 13(7).

In situations where there is an urgent need to protect a child, FACS can apply to the court for an emergency care and protection order (ECPO). If satisfied that a child is at risk of serious harm, the court may make an ECPO: s 46(1). The order, while in force, places the child in the care of the Secretary or person specified in the order: s 46(2).

If the child has been removed without warrant, or care is assumed by an order under s 44, the application must be made within three working days after the day on which removal or assumption of care: s 45(1A).

An ECPO has effect for a maximum of 14 days: s 46(3). However, it may be extended once only for a further maximum period of 14 days: s 46(4).

An application for a care order must be commenced by the Secretary: s 61(1). It must specify the particular care order sought and the ground(s) under s 71(1) on which it is sought: s 61(1A); see below at [40-060] Grounds — s 71(1).

When making a care application the Secretary must:

Despite the restriction under s 61(1) that a care application only be made by the Secretary, an application for a guardianship order may be made by the Secretary, or (with the Secretary’s written consent) either the agency responsible for supervising the placement of the child, or a person who is seeking to be allocated all aspects of parental responsibility for the child (including an authorised carer): s 79B(1).

The Secretary must not make, or consent to, an application unless satisfied that the person to whom parental responsibility is to be allocated has agreed to undergo, and has satisfied, the suitability assessments prescribed by cl  3 and Sch 2 Children and Young Persons (Care and Protection) Regulation 2022: s 79B(1A).

Interim care orders may be made after a care application is made and before the application is finally determined (s 69), and prior to the determination of whether a child is in need of care and protection, where the court is satisfied it is appropriate to do so: s 69(1A). An interim order is of a temporary or provisional nature pending final resolution of the proceedings, and an applicant generally speaking does not have to satisfy the court of the merits of its claim: Re Jayden [2007] NSWCA 35 at [74]–[75].

When seeking an interim care order, the Secretary has the onus of satisfying the court that it is not in the best interests of the child’s safety, welfare and well-being that he or she should remain with his or her parents or other persons having parental responsibility: s 69(2).

Other forms of interim orders may be made if the court considers them appropriate for the safety, welfare and well-being of a child, pending the conclusion of the proceedings: s 70.

An interim care order should not be made unless the court is satisfied that making the order is necessary in the interests of the child, and is preferable to making a final order or dismissing the proceedings: s 70A.

When applying the relevant tests under ss 69, 70 and 70A, the court may be satisfied simply by weighing the risks involved on the evidence available to it at the time (cf M v M (1988) 166 CLR 59): Re Jayden, above, at [79].

The usual interim order is for the allocation of parental responsibility to the Minister until further order: Re Mary [2014] NSWChC 7 at [27]. See Orders allocating parental responsibility (s 79) at [40-100].

The court must take such measures as are reasonably practicable, taking into account the child’s age and developmental capacity, to ensure the child understands the proceedings, in particular the nature of any assertions made in the proceedings and the legal implications of any such assertion: s 95(1).

For the purpose of enabling the court to perform its duties under s 95(1), the court may request the child’s legal representative advise it of the steps taken to ensure the child understands the necessary aspects of the proceedings: Children’s Court Practice Note 5 “Case management in care proceedings”, 21.1.

Any participant in proceedings before the court may, with leave, be accompanied by a support person: s 102(1). Leave must be granted unless:

Sections 104–104C deal with exclusions of certain persons from the proceedings, as set out in the table below:

Section 105 prohibits publication or broadcast of certain information in any form that may be accessible by a person in NSW (whether before, during or after proceedings). This includes the name of a child who is the subject of the proceedings, is or is likely to be a witness, mentioned or otherwise involved in any capacity in the proceedings, or who is the subject of a report under the Act: s 105(1).

It is also prohibited to express the name of any child in a way that identifies them as being or having been under the parental responsibility of the Minister or in out-of-home care, for example by identifying them as a foster child or as a ward of the State: s 105(1AA).

The prohibition includes any information, picture or other material that is likely to lead to identification: s 105(4).

Exceptions apply, such as where a young person consents, where the court consents, or where the Minister with parental responsibility consents: s 105(3).

A Children’s Magistrate is entitled to examine and cross-examine a witness to any proceedings to the extent deemed proper for the purpose of eliciting the information relevant to the exercise of the court’s powers: s 107(1).

The court must forbid offensive, scandalous, insulting etc questions, and oppressive or repetitive examination, unless satisfied it is essential in the interests of justice for the examination to continue or for the question to be answered: s 107(2)–(3). Questions to a witness, who is a parent or primary care-giver of a child, the subject of a care application, concerning the witness’s previous history of dealings with any child, are taken not to be intrinsically offensive, scandalous or oppressive: s 107(3A).

The court has a discretion to obtain and consider the views of any siblings of a child with respect to whom proceedings are brought and must take account of the interests of any siblings in determining what orders (if any) to make in the proceedings: s 103.

A final care order may only be made if the court is satisfied that the child is in need of care and protection, pursuant to either ss 71 or 72. Satisfaction of one of these two bases for making a care order is commonly described as the “establishment issue” or “establishment phase” of proceedings: Re Alistair [2006] NSWSC 411 at [65]; SB v Parramatta Children’s Court [2007] NSWSC 1297 at [44].

Section 71 provides a number of grounds on which the court can find that the child is in need of care and protection (see Grounds — s 71(1) below). The reasons identified in s 71(1) are not merely facts or particulars but are grounds, at least one of which the court must be satisfied before a care order is made: SB v Parramatta Children’s Court, above, at [51].

By contrast, s 72(1) provides that a care order may only be made if the court is satisfied either that the child “is in need of care and protection” (the s 71 criterion) or, in the alternative, that the child is “not then in need of care and protection”, but:

Read together, ss 71 and 72 provide alternative bases for making a care order. The alternative created by s 72(1) is relevant and applicable only when the court is not satisfied there is an existing need for care and protection. The court must be satisfied that, despite the absence of existing need, both the circumstances identified in paragraphs (a) and (b) of s 72(1) exist: VV v District Court of NSW [2013] NSWCA 469 at [19]–[20].

If the court is not satisfied of either basis for a need for care and protection, it may dismiss the application: s 72(2).

Section 71(1) sets out the grounds on which a care order may be made:

The court may make a care order for a reason not listed under s 71(1), but only if it was pleaded by the Secretary in the care application: s 71(1A).

Section 53(1) permits the court to order the physical, psychological, psychiatric or other medical examination and/or assessment of a child. If they have sufficient understanding to make an informed decision, the child may refuse to submit to an examination or assessment: s 53(4).

The court may also appoint a person to assess the capacity of a person who has, or is seeking, parental responsibility for the child: s 54(1). An assessment may only be carried out with the person’s consent: s 54(2).

Assessment orders may be made on the application of the Secretary (at any time), or by a party to a care application: s 55(1). The Act does not provide for the court to make an assessment order on its own initiative: Re M (No 5) — BM v Director-General, DFaCS [2013] NSWCA 253 at [128].

Applications for assessment orders under s 53 or s 54 should be filed as soon as possible after establishment: Children’s Court Practice Note 5 “Case management in care proceedings”, 16.6.2(a). See also Children’s Court Practice Note 6 “Children’s Court Clinic assessment applications and attendance of Authorised Clinicians at hearings, dispute resolution conferences and external mediation conferences” which contains procedures for the making of assessment applications.

In determining whether to make an assessment order, the court must have regard to (s 56(1)):

The court must also ensure a child is not subjected to unnecessary assessment: s 56(2).

If the court makes an assessment order it is to appoint the Children’s Court Clinic to prepare and submit the report, unless the Clinic informs the court that it is unable to do so or considers it is more appropriate for another person to do so: s 58(1). If the Clinic so informs the court, the court is to appoint another person whose appointment, so far as possible, is agreed to by the child, the parents and the Secretary: s 58(2).

Section 58 is absolute in its terms. The discretion as to whether it is appropriate that the Children’s Court Clinic, or some independent person, make the assessment is vested in the Clinic rather than in the court. Therefore, an order for an assessment report which does not appoint the Clinic in compliance with s 58(1) will be invalid: Re Oscar [2002] NSWSC 453 at [13]–[14].

An assessment report submitted to the court is taken to be a report to the court, rather than evidence tendered by a party: s 59.

Before or at any stage during a hearing, the court may refer a care application to a Children’s Registrar for the Registrar to arrange and conduct a dispute resolution conference (DRC): s 65. The purpose of a DRC is to give parties an opportunity to agree on action that should be taken in the best interests of the child: s 65(2). As far as practicable, a DRC should be held as early as possible in the proceedings: Children’s Court Practice Note No 3, “Alternative dispute resolution procedures in the Children’s Court”, 11.1.

DRC’s are conducted using a conciliation model, with the Registrar acting as conciliator: s 65(2A).

The court may also make an order under s 65A(1) that the parties to a care application participate in an alternative dispute resolution process (external ADR). It may do so on its own initiative or on the application of a party: s 65A(2).

Section 244B provides that the following, where made during the course of, or prepared for the purposes of, a DRC or external ADR, are not admissible in any proceedings unless the persons participating, or identified, consent to admission:

Further, a person who conducts or participates in a DRC or external ADR must not disclose anything said or done or any admission made during the process to any other person (s 244C), except in certain circumstances permitted by s 244C(2)–(4).

The court’s obligations to consider care and permanency plans may be summarised as follows:

Permanency planning was found not to have been appropriately and adequately addressed as required by ss 78A(2A) and 83(7A) in Re Hamilton [2010] CLN 2. In that case, the three children each had special needs. At the time the care plan was presented, two of the children had not undergone a full psychological assessment and no suitable placements had been found. The care plan did not provide a reasonably clear picture as to the way in which the child’s needs, welfare and well-being would be met: at [66].

See also DFaCS and Boyd [2013] NSWChC 9; Re Tracey (2011) 80 NSWLR 261; Re Rhett [2008] CLN 1.

The orders available to the court in care proceedings, and discussed in further detail below, are the following:

It is possible to make consecutive care orders: s 67A.

The fact a particular care order is sought in the care application before the court does not preclude a different or additional order being made, provided all pre-requisites to the making of that order are satisfied: s 67.

If the court is satisfied a child is in need of care and protection, it may make an order accepting undertakings given by (s 73(1)):

A “responsible person” may be a person with parental responsibility for the child, birth or adoptive parents or primary care-givers (whether or not they have parental or care responsibility): s 73(7).

The undertaking must be signed by the person giving it: s 73(2)(a). The order remains in force for its duration or until the child attains 18 years (whichever is sooner): s 73(2)(b).

The following are examples of undertakings under s 73:

As to breaches of undertakings, see [40-200] Breach of care orders.

If the court is satisfied a child is in need of care and protection, it may make an order placing the child under the supervision of the Secretary: s 76(1).

A supervision order must specify the reason for the order, the purpose of the order and the length of the order: s 76(2).

The maximum period of supervision is 12 months (s 76(3)), however the court may specify a maximum period longer than 12 months, but less than 24 months, if satisfied there are special circumstances warranting an order of that length: s 76(3A). Where a longer period is ordered, the order may be revoked (on the court’s own motion or on the Secretary’s application) after expiration of the first 12 months if the court considers there is no longer a need for supervision in order to protect the child: s 76(7).

The court may also extend, on its own motion or on application by the Secretary, the period of supervision as it considers appropriate, provided the total period does not exceed 24 months: s 76(6).

The court may require a report to be presented before the end of the period of supervision that discusses the outcomes of the supervision, whether the purposes of supervision have been achieved, and whether there is a need for further supervision and/or other orders in order to protect the child: s 76(4)(a). The court can also order one or more progress reports during the supervision period: s 76(4)(b). The court may consider a report after the period of supervision ends, provided it is both reasonable in the circumstances and in the best interests of the child and, after considering such a report, may make a new supervision order for a duration of no more than 24 months from the start of the original supervision order: s 76(4A), (4B).

Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children: s 3.

Where the court finds a child is in need of care and protection, it may make an order allocating all, or one or more specific aspects of, parental responsibility for a specified period: s 79(1).

The court cannot make an order unless particular consideration has been given to the permanent placement principles and the court is satisfied the order is in the child’s best interests: s 79(3). The permanent placement principles are to be read subject to the objects of the Act in s 8 and the principles in s 9: LZ v FACS [2017] NSWDC 414 at [236].

Guardianship orders are governed by s 79A of the Act. The court may make an order allocating to a suitable person all aspects of parental responsibility for a child who is in statutory or supported out-of-home care, or who it finds is in need of care and protection until the child reaches 18 years of age: s 79A(2).

The court must be satisfied of each of the following (s 79A(3)):

Parental responsibility may be allocated jointly to more than one person under a guardianship order: s 79A(4).

A guardianship order cannot be made if it would be inconsistent with any Supreme Court order with respect to the child made under its custody and guardianship of children jurisdiction, or a guardianship order made by the Guardianship Tribunal: s 79A(5).

Unless varied or revoked under s 90, a guardianship order remains in force until the child reaches age 18: s 79A(6).

The court’s power to order suitability reports or to undertake a progress review applies only to orders allocating parental responsibility under s 79, and not to orders allocating parental responsibility by guardianship order under s 79A: s 82(1).

Section 86(1) provides that the court may make an order doing any one or more of the following:

Contact orders may be made (s 86(1A)):

The court may grant leave if it appears there has been a significant change in any relevant circumstances since a final order was made: s 86(1B). Before granting leave, the court must consider whether there has been an attempt to reach an agreement about contact arrangements by participation in alternative dispute resolution, and may order participation in dispute resolution under s 65 or s 65A: s 86(1D).

For assistance in determining the matters to be considered in making a decision regarding contact, regard should be had to the Children’s Court Contact Guidelines.

In identifying the contact arrangements which will properly answer the needs of the individual child, the court is required to consider a number of factors depending on the circumstances of the particular case, and to balance the benefits and risks of contact with the primary focus on the child’s best interests: Re Helen [2004] NSWLC 7.

Section 86 requires the court not only to consider whether any contact, and if so of what nature, should be ordered, but also whether any such contact should be supervised: Re Liam [2005] NSWSC 75 at [42]. The court must obtain the consent of the proposed supervisor before making an order for supervised contact. If the supervisor does not accept the requirement then contact should not be given: s 86(2), (4); Re Liam, above, at [48]; SM v Director-General, Department of Human Services and SG [2010] NSWDC 250 at [11].

Note:

Contact orders do not prevent a person having parental responsibility consenting to contact. In order to prevent a person having parental responsibility giving such consent it is necessary to make an order under s 90A (see, below, Prohibition orders at [40-100]).

As there is no provision in the Act for the enforcement of contact orders, it may be advisable to make an order accepting undertakings to comply with the contact order (see above, Orders accepting undertakings at [40-100]).

At any stage in care proceedings, the court can make an order prohibiting a person (including a parent or any person who is not a party to the care proceedings), in accordance with the terms of the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility: s 90A(1).

The terms of s 90A are wide and permit the court to make a variety of orders. Examples include:

As to breaches of undertakings, see below, [40-200] Breach of care orders.

Under s 74(1), the court may make an order directing a person or organisation to provide support for a child (other than a child the subject of an application for a guardianship order) for a specified period (not exceeding 12 months).

The preconditions for such an order are set out in s 74(2):

The parents of a child cannot be compelled to accept the provision of support services, particularly if the services relate to the parents rather than to the child, although acceptance can be the subject of an undertaking under s 73.

The court may require a child (aged less than 14 years) to attend a therapeutic program relating to sexually abusive behaviours, and require the child’s parents to take whatever steps are necessary to enable the child to participate in the program: s 75(1). The order is only available in relation to a child who has exhibited sexually abusive behaviour: s 75(1A).

The court may also order a parent to attend either:

The court must be presented with, and consider, a treatment plan outlining the proposed treatment before an order can be made: s 75(3).

Orders are not available under this provision if the child (or parent) has been convicted in criminal proceedings arising from the same sexually abusive behaviours: s 75(2).

Orders under this provision are not available in relation to applications for a guardianship orders: s 75(4).

Applications for rescission or variation of final care orders may be made with the leave of the court: s 90(1). Applications for leave may be made by the following (s 90(1AA)):

The court may only grant leave if it “appears that there has been a significant change in any relevant circumstances since the care order was made or last varied”: s 90(2).

The range of “relevant circumstances” will depend upon the issues presented, but may not necessarily be limited to just a “snapshot” of events occurring between the time of the original order and the date the leave application is heard: In the matter of Campbell [2011] NSWSC 761 at [42].

The issue of “significant change” requires that the change appear to be of sufficient significance to justify the court’s consideration of a rescission or variation application: S v Department of Community Services [2002] NSWCA 151 at [23]. A comparison is required between the situation at the time the application is heard and the facts underlying the decision when the order was made or last varied: S v Department of Community Services at [27]. A non-exhaustive list of factors which indicate a significant change are listed in cl 4 Children and Young Persons (Care and Protection) Regulation 2022.

The discretion available to the court in determining whether to grant leave under s 90(1) is very wide; even if a parent has established a significant change in a relevant circumstance since the care order was made or last varied, the court is not compelled to grant leave. Further, even if the parent has addressed all the issues of concern which led to removal of the child, the length of time the child has been in a stable placement, the age of the child and the expressed wishes of the child that their placement not be disturbed may together strongly support a finding that it is not in the best interests of the child to disturb their current placement: Kestle v Director, DFaCS [2012] NSWChC 2 at [51].

Section 90 prescribes mandatory matters for the court’s consideration when determining whether to grant leave: s 90(2A).

The list of considerations to be considered by the court is split into two categories as follows:

The court may dismiss applications if satisfied they are frivolous, vexatious or an abuse of process, or if satisfied the application has no reasonable prospect of success and the applicant has previously made a series of unsuccessful applications for leave: s 90(2D), (2E).

The court may restrict the grant of leave to a particular issue or issues: Kestle v Director, DFaCS, above, at [53]; Re M (No 6) [2016] NSWSC 170 at [66]. An example of when a restricted grant of leave may be appropriate is where the court determines that an applicant parent does not have an arguable case for restoration of the child to their care, but does have an arguable case on the issue of increased parental contact: Kestle at [53].

Refusal of leave under s 90(1) is an order of the court: S v Department of Community Services at [48].

The law in relation to variation of interim orders was previously unclear: see Re Mary [2014] NSWChC 7 at [23]–[33]; Re Timothy [2010] NSWSC 524 at [59]–[60].

The Children and Young Persons (Care and Protection) Amendment Act 2018 (commenced 4 February 2019) inserted s 90AA to provide that a party to care proceedings may apply to the court to vary an interim care order. The court may vary an interim care order if satisfied that it is appropriate to do so: s 90AA(2).

Section 90(9) now expressly provides that s 90 does not apply to an application to vary an interim care order.

Section 90AA extends to proceedings before the court that were pending (but not finally determined) immediately before 4 February 2019.