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Family courts

This section outlines the interface between Child Safety and family law courts, including the process for:

  • responding to information about harm or risk of harm to a child subject to family law court proceedings under the Family Law Act 1975
  • responding to requests for Child Safety to intervene in family law court proceedings under the Family Law Act 1975
  • undertaking an investigation and assessment where there are family law court proceedings underway or parenting orders in existence
  • intervening when a child requires protection from a parent who has a parenting order in their favour, or where there are current family law court proceedings underway.

The interface between the family law courts and Child Safety

The interface between Child Safety and the family law courts is guided by the Protocol between the Family Court of Australia and the Federal Magistrates Court of Australia and the Department of Child Safety Queensland as well as information-sharing provisions in the Child Protection Act 1999 and the Family Law Act 1975.

The family law courts are made up of the Family Court of Australia and the Federal Circuit of Australia. These are Commonwealth courts established under the Family Law Act 1975. They deal with a range of matters including divorce, property settlement, parenting disputes, special medical procedures, and Hague Convention (international child abduction) matters.

In deciding whether to make an order, a family law court must regard the best interests of the child as the paramount consideration.

The state magistrates courts also have jurisdiction to deal with some (limited) family law court matters.

Further reading

Information about family courts is available on the Family Court of Australia website and the Federal Circuit Court of Australia website.

A parenting application is referred to as a ’family court application‘. A ‘parenting order’ is referred to as a ‘family court order’.

Family court orders can cover many parenting arrangements. Typically, they include who has parental rights and responsibilities (similar to guardianship), ‘lives with’ arrangements (similar to custody), and ‘spends time with/communicates with’ arrangements for the child (similar to family contact ).

Inform Court Services immediately if, at any stage during an investigation and assessment or ongoing intervention, a family presents or refers to a family court application or family court order under the Family Law Act 1975. This enables Court Services to:

  • provide advice and consultation on the child protection/family law interface
  • seek Legal Services (or private counsel) legal representation at the earliest opportunity if required
  • provide sufficient notice to the CSSC if they are required to prepare written material in response to an application.

The family law courts’ jurisdiction includes:

  • the power to make parenting orders in relation to children (including injunctions)
  • authority to deal with special matters, such as consent to medical treatment
  • certain powers under international conventions.

Attention

A family law court cannot make a parenting order in relation to a child in the care of a person under the Child Protection Act 1999, unless either:

  • the order is worded to come into effect when the child ceases to be in that care
    or
  • the chief executive consents, in writing, to the parenting application proceeding in a family law court. Any proposal to proceed with this action must be facilitated through Court Services. 

If it appears there may be a need to intervene in family law court proceedings, consult with Court Services. Court Services will consider costs and other responsibilities that may be incurred if Child Safety intervenes, and provide advice about how to proceed. Child Safety may consider intervening in family law court proceedings if they are involved with the family and:

  • have worries about the safety and wellbeing of a child
    and
  • the worries can be adequately addressed by a change in the child’s living arrangements, without the need for ongoing Child Safety involvement
    and
  • there is a willing and able parent prepared to participate in family law court proceedings
    and
  • the family law court is likely to respond in the most timely and efficient manner to will address the child’s need for protection.

Note

The Family Law Act 1975 requires Child Safety to be notified about allegations of child abuse, family violence or risk of family violence. Where allegations of child abuse or family violence arise in family law court proceedings by a party to proceedings, formal notice is received at Data Management Services (DMS) or via the Regional Intake Service (RIS). Refer to Procedure 1 Information from the Family Court or Federal Circuit Court of Australia.

Provide information to family law courts

Where matters come before the family law courts and Child Safety holds relevant child protection information involving any of the relevant parties, this information should be made available to the court as quickly as possible.

Information exchange between Child Safety and family law courts only occurs where legislation permits disclosure. Before exchanging relevant information, consider:

  • the safety, wellbeing and best interests of the child
  • statutory requirements associated with the child protection and family law legislation
  • statutory requirements associated with information privacy and security
  • how the wellbeing and protection of children at risk may be promoted through the exchange of information between those concerned with the child and the family.

Ensure that the information to be provided:

  • is relevant to the respective roles of each party
  • is relevant to the specific purpose for which it is being disclosed
  • safeguards the child’s safety and promotes their best interests.

Information sharing between Child Safety and the family law courts may occur via:

  • Notices of Risk or Form 4—Notice of child abuse, family violence or risk of family violence
  • the Family Law Act 1975, section 69ZW orders—Evidence relating to child abuse or family violence
  • the Family Law Act 1975, section 91B orders—Intervention by child welfare officer
  • child protection reports being provided to the court where matters are designated as Magellan (refer to Magellan case management)
  • Child Safety seeking to intervene in family law court proceedings in accordance with Family Law Act 1975, section 92A—Intervention in child abuse cases
  • Child Safety file material being subpoenaed
  • Child Safety staff being subpoenaed to provide evidence
  • Child Safety participating as a party to proceedings, or appearing as a friend of the court in proceedings
  • Child Safety filing an affidavit through the appointed independent children’s lawyer.

Independent children’s lawyers

During family law court proceedings, an order may be made for an independent children’s lawyer (ICL) to be appointed. The ICL:

  • acts independently and help the court make orders that will be best for the child
  • ensures the court is informed of the child’s views (where appropriate).

A child’s involvement in the proceedings is determined by their age, developmental level, cognitive abilities, emotional state and views.

Respond to contact by an independent children’s lawyer

When an ICL is appointed by a family law court, the ICL may contact Child Safety to seek information about:

  • the extent of any child protection involvement with the child or family
  • whether Child Safety intends to become involved in the family law court proceedings or is considering initiating other legal proceedings.

It is appropriate for the ICL to liaise with parts of Child Safety (such as the RIS or the relevant CSSC) in respect of any involvement Child Safety may have had with the child and family. However, prior to being provided with any information, it is necessary for the ICL to confirm their appointment. The ICL will demonstrate their appointment by providing the family court Notice of Address for Service form to the CSSC or RIS.

It is also possible for the ICL to share information with Child Safety as it relates to relevant information arising during the course of the family law court proceedings.

Child Safety file material may be provided to the ICL if a subpoena to release the documents is issued, or if an order under the Family Law Act 1975, section 69ZW  is made by the family law court. Subpoenas and section 69ZW orders requiring Child Safety to produce file material are directed to the Director-General. Both are processed by Child Safety’s Right to Information (RTI) unit.

The release of verbal information to the ICL may occur in line with the confidentiality provisions contained in the Child Protection Act 1999, section 187(3).

The release of any information to an ICL, whether verbal or written, should be case noted in the relevant event in ICMS.

Note

In consultation with Court Services, the CSSC may wish to prepare a detailed report for the ICL and family law court when Child Safety has had significant involvement with the family and considers the preparation of a detailed report to be in the child’s best interests.

Magellan case management

Magellan is a case management tool used by the Family Court of Australia in managing applications for matters where allegations of serious physical abuse and sexual abuse are made in relation to a child.

The overarching principles associated with Magellan include:

  • taking an inter-organisational approach (including Child Safety)
  • having a child-centred focus
  • placing priority on early intervention
  • using a judge-led, tightly managed and time-limited approach
  • using court-ordered expert investigations and assessments (from Child Safety and court-appointed counsellors)
    and
  • using a multidisciplinary team (including judicial officers, an ICL, court counsellors, and Child Safety).

Magellan relies on collaborative and highly coordinated processes and procedures. A crucial aspect is strong interagency coordination, in particular with state and territory child protection agencies. This ensures that problems are dealt with efficiently and that high-quality information is shared. An ICL is appointed in every Magellan case. Child Safety’s Magellan officer is located within Court Services.

Assess information received about harm or risk of harm

Attention

The family law courts do not have the authority, roles or resources to perform this function. Child Safety is responsible for ensuring children’s safety and need for protection, whether or not family law court proceedings are underway.

Child Safety may be provided with information about harm or risk of harm to a child subject to parenting orders or family law court proceedings, or whose parents reside separately from one another.

In addition to following standard intake procedures, decide Child Safety’s response, having regard to the following considerations.

Consider the implications of an existing parenting order

If separating families have difficulty in reaching agreement about the future care of a child, they can:

  • enter into a parenting plan
  • enter into a parenting plan and register the plan with the family law courts
    or
  • seek parenting orders from the family law courts.

A parenting plan is a written record of an agreement between the parents about the care of the child. It is signed and dated, but it is not a legally enforceable agreement.

A parenting plan may be registered with the family law courts. When this occurs, once the plan is registered, it is treated as if it were a legally enforceable court order.

Parenting orders may be sought when parents cannot reach an agreement on the future care arrangements for a child, or when the risks to a child are high (for example, when child abuse or domestic and family violence exists). This involves a court application and court process.

Parenting orders include orders stating who has parental responsibility for the child; the persons whom the child is to live with; and the persons the child is to spend time with and communicate with.

When a parenting order is in place and there are child protection worries, a parent may be willing to protect the child but may not be able to do so because of a parenting order requiring the child to live, or have contact, with the other parent.

Further reading

For information about parenting orders, read the external resource Parenting Orders—What you need to know.

Attention

It cannot be assumed that a child is not in need of protection because a parent has taken action to notify Child Safety of harm or risk of harm to a child. Even if a parent has started family law court proceedings, they may not be able to act protectively.

Without appropriate parenting orders, both parents retain (shared) parental responsibility (guardianship) unless this is otherwise altered by the making of an order.

When the source of the information received is a parent of the child, do not assume that the parent is a vexatious or malicious notifier.

When information is received that a child is suspected of being harmed or at risk of harm by a parent and there are parenting orders in place:

  • Gather all relevant information from the notifier, including:
    • where the child primarily resides
    • any contact schedule in place
    • when the child is due to attend contact with or return to the parent or household where the worries are occurring or have occurred
    • the nature of the relationship between the child and the parent
    • whether either parent knows about the worries and what steps they have taken to ensure the safety of the child.
  • Conduct a child protection history check and where necessary, a pre-notification check.
  • Assess and decide the response. Refer to Procedure 1 Assess the information and decide the response.

Note

Any parenting orders made under the Family Law Act 1975 are taken to be current, unless the parents have entered into a subsequent parenting plan. If the parenting plan breaks down, the parents need to seek legal advice about how this may be remedied.

Family law court requesting intervention by Child Safety—section 91B orders

A family law court can ask Child Safety to intervene in family law court proceedings. This request is made in line with the Family Law Act 1975section 91B.  The family law courts make these orders when they consider:

  • there is no viable parent or party to the proceedings
    and
  • the court holds significant concerns about the safety, wellbeing and best interests of a child.

In response to section 91B orders, Child Safety may:

  • seek to intervene in the proceedings
    or
  • decline to intervene, and instead provide information to the court about the family that includes any child protection history.

In response to section 91B orders (including Magellan matters), Court Services:

  • coordinates Child Safety’s response to the requests from court, and attaches them to the relevant event in ICMS
  • liaises with the relevant CSSC or RIS
  • obtains relevant information from the court to assist Child Safety in determining its response
  • liaises with the appointed ICL (who may also liaise with the CSSC or RIS). Refer to Independent children’s lawyers.

Respond to alleged harm during contact ordered by a family law court

Note

The term ‘contact parent’ is used where a parent has an order to spend time and communicate with their child but the child does not reside with them on a full-time basis.

Where a notification relates to harm or risk of harm to a child experienced during a visit with the contact parent occurring under a parenting order:

  • Consider when the next contact visit is due when determining the appropriate response timeframe for commencing the investigation and assessment.
  • If possible, complete the investigation and assessment before the child’s next contact visit. Refer to Procedure 2 Investigate and assess.

If the investigation and assessment cannot be completed before the next ordered contact visit:

  • Negotiate with the contact parent to agree in writing not to have contact with the child while the investigation and assessment is being undertaken.
  • Advise the contact parent of Child Safety’s authority to investigate under the Child Protection Act 1999, section 14

Child Safety is responsible for speaking with the contact parent to seek their agreement not to have contact with the child until the investigation and assessment has been finalised. If the QPS is investigating the matter, consult with them before making contact with the contact parent.

If the contact parent will not agree to suspend contact while the investigation and assessment is being undertaken and the suspension of contact is considered necessary to ensure the child’s safety:

  • consult with a senior team leader 
    and
  • seek advice from the Office of the Child and Family Official Solicitor (OCFOS) lawyer to determine if an application for a temporary assessment order (TAO) or court assessment order (CAO) is appropriate.

Child Safety cannot tell the parent with whom the child lives to prevent the child from having contact as ordered by a family law court, without either:

  • the written consent of the contact parent
    or
  • a Childrens Court order directing the contact parent not to have contact.

Otherwise, the parent with whom the child lives would be in breach of a parenting order for which there are penalties under the Family Law Act 1975. These penalties include fines and imprisonment.

A parent with whom the child lives will not be in breach if the contact parent has consented in writing to not having contact, or if an order has been made under the Child Protection Act 1999.

Note

A TAO, CAO or child protection order directing a parent not to have contact, or to only have supervised contact with a child, will override a parenting order in some circumstances. The Family Law Act 1975, section 69ZK, provides that a parenting order made by a family law court does not affect the operation of a state child welfare law in relation to a child. Consult with Court Services where the conditions of a parenting order need to be considered.

Respond to alleged harm by a parent with whom the child lives under a parenting order

The investigation and assessment process is the same whether or not a child is subject to a parenting order; however, there are additional considerations if a child is subject to a parenting order or family law court proceedings outlined in the following paragraphs.

If a child’s contact parent is assessed as able and willing to safely care for the child, attempt to negotiate written agreement from the parent with whom the child lives for the child to reside with the contact parent until such time that the investigation and assessment is completed or the matter is finalised in the family court.

Respond to a child in need of protection

Intervention where there are current proceedings in a family law court  

If it is determined that a child is in need of protection following an investigation and assessment, Child Safety may:

  • commence intervention with parental agreement including, where required, placing the child subject to a child protection care agreement. Refer to Procedure 4 Support a child at home
  • commence child protection proceedings in the Childrens Court to protect the child
  • after consultation with Court Services, intervene and become a party to the family law court proceedings in line with the Family Law Act 1975, section 92A (or where relevant, accept an invitation to intervene in line with section 91B, where an order has been made).

Attention

Whenever consideration is given to intervening in proceedings, and before making a decision to do so, Child Safety staff must consult with Court Services.

Court Services will consider key indicators and factors to determine whether to intervene and participate in family law court proceedings. This will be done in collaboration with relevant stakeholders, for example, the CSSC, OCFOS or the Director of Child Protection Litigation (DCPL).

If Child Safety intervenes in the proceedings, it is taken to be a party to the proceedings and therefore accepts all the relevant roles and responsibilities that attach to a party in litigation. Once Child Safety becomes a party to family law court proceedings, it is bound by any orders the court may make.

Child Safety will generally seek leave to withdraw from family law court proceedings when interim parenting orders are made; however, there may be exceptional circumstances where Child Safety remains involved in the litigation process until the making of final parenting orders.

Intervention where parenting orders exist

Irrespective of the presence of family court orders, Child Safety will intervene to ensure a child’s safety, belonging and wellbeing when it is determined that a child is in need of protection.

This includes circumstances where it is determined that:

  • a child is in need of protection from the parent that has ‘lives with’ parenting orders granted in their favour
    and
  • the other parent is assessed as able and willing to safely care for the child
    and
  • the child’s protective needs would be met by a change to the parenting orders.

In these circumstances it may be appropriate to:

Tip

Court Services is available for consultation should a CSSC require assistance in relation to the provision of written information to parents.

Where the child’s protective needs may be met by a change to the family court orders and a parent advises that they intend to file a parenting application in the family law courts, Child Safety will be a party to the proceedings if the child is subject to a child protection order. A decision regarding the most appropriate departmental response to the parenting application will be made in consultation with Court Services.

If the contact parent will not consent to revoking their contact rights under the family court orders, advise the protective parent to seek legal advice regarding lodging an application to vary the order.

Intervention when a child requires ongoing protection

If the child requires ongoing protection while the protective parent applies for parenting orders or a variation of family court orders, to place the child in the custody of the protective parent:

  • Consult with a senior team leader and seek advice from the OCFOS lawyer to progress a referral to DCPL for a child protection order.
  • Liaise with DCPL to seek an interim order granting custody of the child to the chief executive, restricting contact with the other parent.
  • Request an adjournment of the child protection proceedings until the matter is determined on an interim (or final) basis in the family court.

Attention

Always seek advice from Court Services about the effect of any parenting orders. The way in which family court orders are framed could result in parents having shared parental responsibility, which may impact on Child Safety’s response to these matters and the types of child protection orders that may be deemed appropriate.

Advice must be sought from Court Services about:

  • the best way to proceed in each individual case
    and
  • the appropriate level of Child Safety involvement in the family law court proceedings, for example, instructing Legal Services, attending court as a ‘friend of the court’, providing information to the ICL appointed for the child, or writing to the court.

Becoming a party to family law court proceedings has financial costs and other implications, including the cost of engaging private counsel. No action will be taken in a family court without prior consultation with Court Services.

If the protective parent:

  • is unable to obtain legal aid
  • cannot afford to self-fund the application in a family court
    or
  • is unwilling or unable to self-litigate.

Child Safety can only seek a child protection order by presenting evidence that the protective parent cannot meet the child’s needs because of the existence of a family court order that the parent cannot vary.

The use of a directive order about contact in the Children’s Court may be the only way to ensure the safety of a child where the child is at risk of harm on contact visits. It should not be used as a long-term option.

In some cases, a decision to make an application under the Child Protection Act 1999 for a child protection order granting custody to the chief executive and subsequently placing the child with the protective parent may be appropriate to meet the child’s needs. However, this should be avoided if there is another alternative.

In circumstances where the protective parent cannot afford to fund the application, it is preferable for Child Safety to provide practical assistance to the parent such as supporting them with a referral to Legal Aid Queensland, to make the application.

Note

If an application is filed in the Family Court of Australia, the Family Law Rules 2004, rule 6.02(2), requires that the applicant must serve Child Safety with the application.

If an application is filed in the Federal Circuit Court of Australia, the Federal Circuit Court Rules 2001, rule 11.01 provides that the applicant may serve Child Safety with the application.

Once served with the application, Child Safety is party to the application and can present evidence to the court in relation to child protection matters. This may include a summary of Child Safety involvement with the family, any assessment of risk, and information about the child's case plan. If appropriate, in order to meet a child’s needs, Child Safety can make a family court application seeking orders in favour of the protective parent.

Where there are concurrent child protection proceedings and family law proceedings before the courts, Court Services will liaise with the relevant Child Safety staff, OCFOS and DCPL officers to ensure a coordinated response.

Court Services will liaise with the relevant CSSC and OCFOS to consider extending a child protection order if the order the child is subject to is likely to expire before a family law court order can be determined.

Decide which court should hear proceedings

It is generally not in the interests of a child or their family for proceedings to be taking place in both a family court and the Childrens Court.

Child Safety, as the agency with statutory responsibility for child protection, decides the jurisdiction in which the protective concerns should be determined.

Attention

The CSSC will consult with Court Services about the most appropriate forum for determination of matters in each case.

To assist Court Services in deciding which court the matter should proceed in, provide information on:

  • whether Child Safety is currently involved with the family and has worries about the safety and wellbeing of a child or young person
  • the nature and extent of Child Safety involvement with the family
  • where the family law or child protection litigation processes are up to
  • whether the concerns can be adequately addressed by a change in the child’s living arrangements, without the need for ongoing departmental involvement
  • whether there is a willing and able parent with a preparedness to participate in the family law court proceedings
  • which court is likely to respond in the most timely and efficient manner and will address the child’s need for protection.

Respond to a parent’s request for a statement of position letter

At times, a CSSC may be asked by a parent to provide a statement of position letter to support a parenting application. The provision of this letter may assist the parent in their application for legal aid funding, or be relied upon to help inform existing family law court proceedings.

A statement of position letter is not intended to favour one particular parent over another. The letter includes:

  • the nature of Child Safety’s involvement with the family
  • any current and future risk assessment regarding each parent
  • the obligation to list Child Safety as a necessary party to the proceedings
  • any views regarding the proposed parenting orders sought by the parties.

When a parent requests, or consideration is being given to providing, a statement of position letter:

  • Consult with Court Services to determine the appropriateness of issuing the letter.
  • Where there are current child protection proceedings before the court, also consult with relevant OCFOS and DCPL officers.
  • Ensure that both parents are informed of the decision about providing a statement of position letter and record this decision in the relevant ICMS event.

If a statement of position letter is completed, forward a copy of the letter to both parents wherever possible, and Court Services. If there are also child protection proceedings, forward a copy to OCFOS and to the DCPL.

It is best practice for the decision to provide a statement of position letter or other sworn evidence in support of proposed a family court application to be made collaboratively by the senior team leader, senior practitioner and CSSC manager in consultation with Court Services. However, the CSSC manager has the delegation to issue and sign a statement of position letter and therefore makes the final decision.

Issuing such correspondence prematurely (or in the absence of thorough assessment of both parents’ suitability) may not promote a child’s interests and may result in adverse legal and court costs.

Note

When Child Safety elects to intervene in the parenting proceedings by writing a statement of position letter, it may also be necessary to file sworn evidence in support of its position (for example, an affidavit). This will be subject to Child Safety’s views in respect of the application.

Child Safety’s decision about whether to provide a statement of position letter in a family law court should be based on:

  • a sound decision-making framework which considers child protection legislation, family law legislation, child safety’s framework for practice, delegations, protocol between the department and the family law courts, relevant policies and procedures
  • evidence
  • a thorough assessment of both parents’ ability to meet the child’s safety needs and consideration of:
    • who has parental responsibility
    • who the child lives with
      and
    • who the child spends time with or communicates with.

At times, the assessment may need to consider the suitability of a third party, such as a grandparent.  

Note

Child Safety cannot be compelled to issue a statement of position letter. It is the decision of the delegated decision maker.

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