Changing parental responsibility following final orders in the NSW children's court

This article is mainly about s90(2A)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which provides that before granting leave to vary or rescind a Care Order, the Children's Court must take into account the length of time for which the child or young person has been in the care of his or her present carer.

In this context, a Care Order usually means a Final Order allocating parental responsibility, but may also mean an Interim Order made under s69 or s70 of the Act.  The scheme of the Act favours permanency, which is demonstrated by the requirement in s83 that the Director-General prepare a "permanency plan" before the court makes a Final Order.

How would a child make an application to the children’s court?

"Firstly this would depend on the child’s age. For example a child who is 12 years of age or older is assumed to have the capacity to instruct their legal representative to make an application to the Children’s Court. If the child is under 12 years of age, it may be considered that the child does not have the capacity to direct their legal representative and therefore the legal representative would not be bound by the child’s instructions.

 There are different pathways that might lead to a child making a section 90 application on their own behalf, these might include but are not limited to:

  1. Where a Section 82 report has been ordered by the Children’s Court and the child’s legal representative is not satisfied that proper arrangements have been made for the care and protection of the child; the child’s legal representative may consult with the child and seek instructions as to whether the child wishes to file an application to withdraw or vary the current care orders.

So you want your kids back - and you're thinking about a Section 90 application

Losing your right to fight ... It was also a government directive to save money to STOP leave being granted to proceed to a Section 90 Hearing, as explained in the matter of Troy vs DoCS, for a start - as too many parents want their children back.  In making that judgement, it is extremely difficult now to even granted leave to apply for a Section 90.

Also every Leave Hearing is a two hour in total "hearing by submission" which is disgusting. As solicitors from the bar table NOT under Oath talk crap for their half an hour - no evidence is considered and the Magistrate says NO. The legal process is denied because they are making them submission Hearings.

So DoCS legal representatives can spend their half an hour telling lies, for which they are not held accountable as they are NOT under oath - or subject to cross examination - which then results in the Magistrate making his decision based upon their lies.

NSW children's court - important case law

The following cases have been included in this Resource Handbook:

  • Interim orders — Re Jayden [2007] NSWCA 35 (see [4-0110]), Re Timothy [2010] NSWSC 524 (see [4-0120])
  • Standard of proof, sexual abuse — Re Sophie (No 2) [2009] NSWCA 89 (see [4-0130])
  • Basis of finding does not limit facts considered regarding placement — Re Alistair [2006] NSWSC 411 (see [4-0140])
  • Least intrusive intervention, UN CROC — Re Tracey [2011] NSWCA 43 (see [4-0150])
  • Realistic possibility of restoration — Re Tracey [2011] NSWCA 43 (see [4-0150])

Rescission or variation of Children's Court orders: A study of Section 90's

Abstract: This article reports on a study of Children's Court files relating to completed applications for variation of care orders (section 90 applications) in three specialised Children's Courts in New South Wales. All files that could be located for completed applications were reviewed and nonidentifying data was recorded. The study attempted to examine the type of applications, the characteristics of applicants and the outcomes of the applications. One hundred and seventeen applications were reviewed: almost half of these were made by the then Department of Community Services (DoCS), and about the same proportion of applications were made by parents. After the section 90 applications were determined there was an increase in care orders allocating parental responsibility to the Minister for Community Services with 73% of the children placed under the care of the minister to age 18.

Source : http://researchbank.acu.edu.au/fea_pub/1096/