In some circumstances, children need to be protected from their own parents.
This can be as a result of a number of factors, including that the parents are involved in substance abuse or there is family violence or a parent has mental health issues. In such circumstances the Department of Child Services (“the Department”) will intervene and may seek a Court Order ordering that the child be placed in the care of the Department. The Department can then place the child with appropriate persons, such as family members, foster carers or a Departmental Care Service.
On occasions when the child’s parents are living separated, the other parent may learn of the abuse or risk of abuse through the Department’s investigations or the Department’s court proceedings. It may at that stage be possible for such parent to negotiate with the Department for the child to be placed in their care and if the Department is satisfied with such parent’s ability to care for the child, the Department may agree to cease its involvement on the basis that the parent makes application to one of the family courts, seeking an order that the child live with them.
It is important to understand in circumstances where the Department has obtained an Order relating to the child, that the family courts will not have jurisdiction to make an order with respect to the child. Thus it is important to negotiate and liaise with the Department prior to making an application to either the Federal Circuit Court or the Family Court. You need to ensure that there is either no order in place or that the Department will withdraw from its involvement with the child upon you making an application to the Court for the child to live with you.
