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Child Protection Orders or Parenting Orders?

This article outlines the relationship between child protection proceedings, which are dealt with in the Children’s Court, and parenting proceedings which are heard in the Federal Circuit and Family Court of Australia  While child protection matters are governed by the child protection legislation of the various states and territories, parenting matters are dealt with under the Family Law Act 1975. 

What are child protection proceedings?

The state and territory Child Protection Acts enable the Children’s Courts to intervene where a child has been harmed or is at risk of harm, neglect or abuse. Child Protection or Child Safety (as the Queensland department is called) may remove a child from a family, and seek that guardianship or custody be placed with the Chief Executive of the Department or another specified person, like a family member.

Child protection varies between states and territories. However, in all jurisdictions, it is possible for courts to order that the Department be responsible for making major decisions about the child’s life on either a permanent or temporary basis and that the child must live with a specified person. 

Parenting orders or child protection orders?

Parenting orders are made in the Federal Circuit and Family Court of Australia, which are governed by Federal Law, chiefly the Family Law Act whereas Child Protection matters are governed by state legislation. 

Child Protection is not part of family law. Rather, it is an area of administrative law, which is the branch of law that deals with the decisions of government departments and agencies. These decisions are reviewable by courts and may be found to be invalid where the decision-maker has made an error of law.

Parenting orders set out who a child lives and who the child will spend time with as well as who has parental responsibility for the child. These orders bind all parties to the matter, which usually includes the child’s mother and father and sometimes other interested parties, like grandparents or aunts and uncles. 

An existing Parenting Order, whether it is an Interim or Final Order, will not impact the ability of the Department of Child Protection to apply for an order in the Children’s Court.

How do the systems interact?

Child Protection Orders are often made where Parenting Orders are also in place. For some parents, the separate but overlapping systems may be quite confusing

The Family Law Act provides that where there is inconsistency between Family Law and Child Protection law, the latter shall prevail. This means that Child Protection Orders will always override Family Law Orders. For example, where a court makes a Parenting Order under which a child is to live with one parent but a Child Protection Order states that the child is living int he care of the Department and only spending supervised time with that parent, the child will only be allowed to spend supervised time with that parent while the Child Protection ORder remains in force. If the Child Protection Application is withdrawn or dismissed, or the Child Protection Order expires, the Family Law Orders will take effect.

What if family law proceedings have already started?

Where Family Law proceedings are already on foot and a Child Protection Application is made, the family law matter is usually adjourned until the outcome of the Child Protection Application is known.

The court can also dismiss the family law application, or the applicant can apply to withdraw the application.

If a Child Protection Order is made, depending on the duration of the Order, the Federal Circuit and Family Court of Australia may not have jurisdiction to make orders and the matter will be dismissed. If an Interim Child Protection Order is made, it is likely the matter will be adjourned for a brief period.

What if Family Law Orders are already in place?

When a Child Protection Department is making an Application and assessing whether a child is at risk, it will take into account any Parenting Orders that are in force. For example, where a Parenting Order prevents a parent who is a risk to the child from having unsupervised contact, this may mitigate the risk and concerns that the Department has. If a Child Protection Order needs to be made, the court will generally take into account the Family Law Orders previously made and impose the least intrusive Order that is appropriate in the circumstances.

Child Protection departments can also actively work with and support families to help them maintain the care of their children, through voluntary arrangements without any Child Protection Orders being made. These voluntary agreements can continue while Family Law proceedings are on foot.

Notice of child abuse

The Federal Circuit and Family Court of Australia have obligations to inform the Child Protection agencies of the various states and territories of any allegations or risks of child abuse. A Notice of Child Abuse or Family Violence must be completed and filed with any Parenting Application. This form requires the party to outline any concerns about abuse, violence or neglect towards a child involved in the proceedings. The Registry manager must notify the relevant child welfare authority if any concerns are disclosed on this form.

What if Child Protection is not involved?

If a Family Law Court develops concerns about the welfare of a child who is the subject of parenting proceedings, it may make orders that the court be provided with information, documents and reports from prescribed state or territory agencies relating to the parenting matter.

If a Family Law Court considers a child to be at risk, it can request the Child Protection Department of the state or territory to intervene.

If you require legal advice in relation to a child protection or a family law matter, please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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