• 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.

• 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.

• 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.

• You can usually do this however if you engage us to act on your behalf it is usually better to let us speak for you. 
• It can be very frustrating to have to sit still and listen at times but we know what information is important and the best time to tell the court about it. If you think something that has been said or not said is very important you can make a note of it and tell your lawyer in the next break.

• You will be able to tell the magistrate your side of the story through us speaking as your lawyer and in your affidavit.
• Keep a diary of all the things you think are important and prepare a chronology of important events as soon as possible. This will help you clearly explain to us which parts of your story are most important and provide the evidence which will help the magistrate to make a decision in your children's best interests.

• This really depends on how busy the Children’s Court is and the steps that are required in your particular case. You should expect the proceedings to take a minimum of a few months from start to finish and often they take more than one year to get to a final hearing.

• You need to tell us about this as soon as possible. Special arrangements can be made for you especially if there is an Apprehended Domestic Violence Order (or ADVO) in place. We 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.

• Yes. The court can make orders for children to be returned to a parent if the magistrate is satisfied that is in the children's best interest.
• In most cases a parent will need to show the court they have taken significant steps to address the issues that led to FACS getting involved and to the child being removed. You will also need to show you are able to provide a safe environment for your children and that the child is no longer in need of care and protection.

• No, you do not always 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. 
• We 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 your children.

• There are rules that outline when and how you can bring a case back to court or make what is called a section 90 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 might make new orders.
• 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: 

1. if there has been a significant change in circumstances; and 
2. whether it would be in the best interests of the children to make the new orders that you seek.

Question

My caseworker is worried about my 15-year-old son who refuses to go to school. She says it’s my responsibility to make him go. I work full time and don’t have time for this. I can’t make him go. Do I have to do what she says?

Answer

• No you don’t have to do what your caseworker says. They do not have the power to tell you what to do.
• However if your caseworker speaks to you about concerns they have regarding the care you are giving your child then it is a good idea to try and work with them to find solutions. This may help to stop your case from ending up in court. 
• If you feel that what your caseworker is asking you to do is unreasonable you can speak to their supervisor. We can provide you with legal advice and negotiate with the department on your behalf.
• If you do not listen to your caseworker or are disrespectful or abusive then it is likely this will be reflected in a report to the court and may result in a magistrate taking a less favourable view of your case.

Question

FACS are taking me to court because they say my boyfriend shouldn’t be around my kids. He’s been in jail for drugs but that’s all behind him now. My lawyer says that if I want to keep my children I have to ask my boyfriend to live elsewhere. What should I do?

Answer

You do not have to follow our advice. You always remain free to make your own decisions. We provide advice on what we consider the court is most likely to do in different situations however the action you take is always your choice. 

We are experienced and understand how these cases work. We will advise you about court procedures or changes you could make that may improve your chances of getting the outcome you want.

Our job is to act in your best interests in giving you legal advice and acting on your instructions. You will usually stand a much better chance of achieving the outcome you want if you follow our advice.

Question

A magistrate has given custody of my kids to my in-laws. I am allowed to see them twice a week. I don’t think this is fair. I am thinking about just going around to see them regardless of what the magistrate ordered. They are my kids after all.

Answer

• It is important that you are always respectful in court.
• You must comply with court orders.
• You need to talk to your lawyer about your case and take the issues seriously. Magistrates do have powers and can make orders that effect you. 
• For example the court may make an order that you must provide a breath analysis sample before a contact visit. If you do not do this then the contact visit will not go ahead. 
• It is important to remember that the magistrate is the person who can make really important decisions about your case. If you ignore their reasonable suggestions they may think you are not taking the case seriously and that this shows you are not willing to make the necessary changes to have your children returned to your care.

Question

My sister reported me to child protection and caseworkers have come to visit us. They say the kids are being neglected and that I may have to go to court. I’m worried about a shoplifting offence I pleaded guilty to back when I was 19. 

Answer

• Yes. Parties can subpoena the police department to provide the criminal record of any person who wants care of or contact with a child.
• You can talk to your lawyer in more detail about what this evidence means and how it might impact on your case. 

Question

My sister reported me to child protection and caseworkers have come to visit us. They say the kids are being neglected and that I may have to go to court. I am worried about a shoplifting offence I pleaded guilty to back when I was 19 and whether the magistrate will learn of that.

Answer

• Yes. Parties can subpoena the police department to provide the criminal record of any person who wants care of or contact with a child.
• You can talk to us in more detail about what this evidence means and how it might impact on your case. 

Question

I am worried about my children having contact visits with their Dad as he is always under the influence of drugs or alcohol. What can I do?

Answer

• Talk to your caseworker about your concerns.
• Keep a diary of incidents that have made you feel worried about this behaviour. Make a note of other people who have also seen the person under the influence of drugs or alcohol and the date they witnessed this.
• Talk to us about your concerns. We may advise you about making an application for an order that all visits be supervised at a contact centre.
• Depending on the matter, an application may be made in the Family Court or Federal Magistrate’s Court.

Question

My caseworker has hated me from the beginning. She never returns my calls and I think she’s got it in for me.

Answer

• This is up to FACS, not the court.
• If you have concerns about your caseworker it is best to talk to them or their supervisor about it.
• Generally FACS is not willing to change caseworkers as most people that end up in court have difficult relationships with their caseworkers.
• You may like to have a support person with you each time you speak with your caseworker. 
• This is something you can still discuss with us.

Question

My daughter hates her foster carer. She said she’s too strict and doesn’t let her go on Facebook or hang out with her friends.

Answer

• I am concerned about my grandchildren. They live with their mother and her new boyfriend. Their father is our son and he always tells us about the kids missing school and living in a pig sty. Should I tell FACS?
• Some of the issues that FACS and the Children’s Court will be concerned about are:

1. drug or alcohol use by parents or caregivers;
2. children are being neglected including:

• not being fed properly;
• not being cared for; or 
• being left unsupervised;

1. physical violence toward children;
2. sexual abuse of children;
3. children being exposed to family or domestic violence;
4. if the primary caregivers die or are sent to jail and there is nobody to care for the children; and
5. if the child is not getting some or all or its physical, psychological, emotional or educational needs met.

• These are only examples. One or more of these may be relevant in your case. Each case is different and it is often best not to try and compare your situation to others.

Question

My daughter hates her foster carers. She said they are too strict and they do not let her go on Facebook or hang out with her friends.

Answer

• Talk to your children about exactly what is making them unhappy. 
• Make a note in your diary if there are child protection concerns or they tell you that someone has hurt them. Write down the exact words the child said. Then you should talk to your caseworker about it.
• You can also talk to us about it. It may be an issue that needs to be raised with the magistrate or the caseworker depending on whether there is a case on foot.

Question

I’m in the process of ending an abusive relationship with my boyfriend. The kids’ father (my ex) has threatened to call FACS on me if I don’t get the kids out of the house soon. Can I let them live with my parents while I sort things out and get a new place?

Answer

• You will need to ask FACS to do an assessment of your parents to see if they are suitable carers.
• Your parents may need to become parties to the case and get their own lawyer. Talk to us about this option.