Family law is an incredibly complex and often emotional area of the law, particularly when children and parenting arrangements are involved. Even more complex and emotional are matters involving child safety and child protection.
While parenting matters are governed by the Family Law Act 1975, child protection matters in Queensland are governed by the Child Protection Act 1999. Below we look at the relationship between child protection proceedings in the Children’s Court and parenting proceedings in the Family Court or Federal Circuit Court.
What are parenting orders?
Parenting Orders are made either in the Family Court of Australia or Federal Circuit Court of Australia, which are governed by Federal Law. Child Protection matters are governed by state legislation.
An existing Parenting Order, whether interim or final, will not impact Child Safety’s ability to file an Application in the Children’s Court, and to have an Order made. Parenting orders generally set out who a child is to live with and spend time with.
What are child protection proceedings?
The Child Protection Act 1999 enables the Children’s Court via the Chief Executive of the Department of Child Safety (Child Safety), to intervene where a child has been harmed or is at risk of harm, abuse or neglect. Child Safety may remove a child or children from their family, and seek that guardianship or custody be placed with the Child Safety or another specified person, such as a family member.
The Child Protection Orders the Chief Executive may apply for include:
- Short-term Orders;
- Long-term Guardianship Orders;
- Temporary Custody Orders; and
- Court Assessment Orders.
The term ‘custody’ relates to where a child will be placed or live, while the term ‘guardianship’ refers to the power to make long-term decisions which may affect a child (such as education, health, name and religion). We discuss in detail what to do if Child Safety becomes involved with your family here.
How do the systems interact?
It is not uncommon for Child Protection Orders to be made in instances where Parenting Orders are also in place. The separate (but overlapping jurisdictions) can often become confusing and daunting.
The Family Law Act 1975 provides where there is inconsistency between Family Law and Child Protection Orders, Child Protection shall prevail.
Put simply, this means that Child Protection Orders override Family Law Orders.
For example, where a Family Court makes an order that a child is to live with one parent and a Child Protection Order states that a child should only be spending supervised time with that parent, the child will only be able to spend supervised time with that parent.
What if family law proceedings have already started?
Where Family Law proceedings have started and a Child Protection Application is made, the family law matter is generally adjourned until the outcome of the Child Protection Application is known to the court.
What if Family Law Orders are already in place?
Child Safety will take into account any Parenting Orders when making an Application and assessing whether a child is at risk. For example, where a Parenting Order prevents a parent who is a risk to the child from having unsupervised contact, this will mitigate the risk and concerns of Child Safety.
Notice of child abuse
Family Courts have obligations to inform Child Protection agencies about any allegations or risks of child abuse. A Notice of Child Abuse or Family Violence must be filed with any Parenting Application in the Family Law Courts. The Registry must notify Child Safety authority of any concerns disclosed on this form.
What if Child Protection is not involved?
If a Family Law Court considers the child to be at risk, it can request that Child Protection intervene.
Child protection and child safety matters are incredibly complex, and incredibly important to get right. However, it is not an area of family law that every family lawyer practises in. If you require legal advice in relation to a child protection or a family law matter, please contact our expert team of child protection and child safety lawyers at Best Wilson Buckley Family Law.