If you have immediate safety concerns regarding your children, please contact Victoria Police.
If you, your former partner or any other person holds safety concerns in relation to the care or wellbeing of your children, you might find your family the subject of an investigation by the Child Protection staff of the Department of Health and Human Services (DHHS).
If your matter is already before the Family Courts, DHHS’s involvement with your family can significantly impact the outcome of your parenting matter.
If your matter is not yet before the Family Courts, initiating proceedings may result in DHHS becoming involved with or investigating your family.
The team at Caroline Counsel Family Lawyers has extensive experience working with clients in the Family Courts in relation to competing allegations by parents against one another and in helping clients to navigate their parenting matter whilst dealing with DHHS.
When will DHHS get involved in your parenting matter?
Child Protection services operate under a different jurisdiction to the Family Courts. Child Protection services are State-based and operate under State legislation, while Family Courts are established by and operate under Commonwealth legislation.
However, Family Courts rely on Child Protection to investigate allegations of harm or risk of harm raised during parenting matters because the Family Courts do not have their own investigatory body and yet are required to make findings about (1) whether a child is at risk of harm by either parent or other caregivers and (2) whether a child would be safe spending unsupervised time with either parent or other caregivers.
If you are considering issuing proceedings in the Family Courts in relation to parenting matters and there are allegations of harm or a risk of harm to your children, you or your former partner will be required to disclose this to the Court via a compulsory notice of risk form. The Registry staff who receive your Court documents when you file them have a positive obligation to notify child welfare authorities upon receipt of harm or risk of harm allegations. DHHS may decide to undertake an investigation into your family on the basis of the notification received from the Family Court registry.
DHHS might also get involved in your parenting matter prior to the initiation of Court proceedings and at any time during Court proceedings if they receive a report or notification in relation to harm or risk of harm to your children.
Any person who believes on reasonable grounds that a child needs protection can make a report to Child Protection. Certain professionals are deemed “Mandated reporters”, meaning they have a legal obligation to make a report to Child Protection if they believe on reasonable grounds that a child is in need of protection from physical injury or sexual abuse. These professionals include:
- Registered medical practitioners
- Nurses including midwives
- Victorian police officers
- Registered teachers and school principals
- Out of home care workers (excluding voluntary foster and kinship carers)
- Early childhood workers
- Youth justice workers
- Registered psychologists
- School counsellors
- People in religious ministry.
What will Child Protection do?
The Child Protection staff are required to review reports or notifications about harm to children, undertake risk assessments and investigations if there is a significant risk of harm and take protective action, which may include applying for orders from the Children’s Court.
Once a report has been made to Child Protection services. The “Intake team” will undertake a risk assessment. If Child Services determines that there is a significant risk of harm, they may conduct an investigation to determine whether there are grounds for intervention.
When conducting their investigation, Child Protection may work with Police and medical
professionals if necessary, particularly in circumstances where charges may need to be laid.
At the conclusion of their investigation, Child Protection staff will determine whether the reported harm/risk of harm is substantiated and warrants intervention and decide what action should be taken to protect your children.
If Child Protection has concerns about your children’s safety in your care or your former partner’s care, then pursuant to the Children, Youth and Families Act 2005 (Vic), they might intervene. They can provide a referral to support services or apply to the Victorian Children’s Court in relation to your children. The Children’s Court may then make an order for the protection of your children on an interim basis, such as an interim accommodation order, temporary assessment order or protection order.
In extreme cases, the Children’s Court may make a permanent care order, placing your children in alternative care arrangements. However, Child Protection should only remove a child as a last resort and as such should work with you to avoid this outcome.
How will this impact your parenting matter?
Where it is brought to the attention of the Court that there is an ongoing investigation into a child’s safety by the DHHS, the Family Courts may refuse to make any orders in relation to parenting matters until it has received and reviewed DHHS’s findings.
If there is an ongoing DHHS investigation or DHHS wishes to provide the Court with a report, the Court may refuse to make any changes to the existing spend time arrangements until it has received a report from DHHS. This might mean the hearing of any Application you file is delayed until the DHHS report is produced, if there is to be a report.
Once a DHHS report is produced to the Court, the Court will be heavily guided by the contents of that report when making a decision with respect to parenting arrangements. This might mean that the success of an application for your children to live with you or even for increased time depends to a large extent on DHHS’s findings.
In some cases, DHHS might provide a report directly to the Family Courts or apply to be made a party to the proceedings. Parties generally cannot compel DHHS to become involved in your family law matter or to provide information about any investigation or findings without issuing a subpoena to DHHS.
Generally speaking, the Family Court will be reluctant to make any orders in relation to your parenting matter whilst a Children’s Court application is on foot and whilst there are current orders from that Court. Put simply, the Children’s Court matter takes priority over the Family Court matter.
Even if the Children’s Court does not eventually make any orders with respect to your children’s care, they might make an Interim accommodation order, which means your children would be placed in alternative care, until the Children’s Court makes a decision with respect to their care.
If there are interim orders and a case pending in the Children’s Court, your matter in the Family Courts being delayed due to the fact that the Children’s Court order must expire and the Children’s Court matter must be determined before the Family Courts will exercise their power to make any orders in relation to your family.
Put simply, DHHS’s involvement can impact your parenting matter in the following ways:
1.A report by DHHS can heavily influence the Family Court’s decisions regarding what parenting arrangements are in the best interests of your children and what orders are required to protect your children from harm.
2.The Family Courts may be unwilling to make a decision while a DHHS investigation is pending, resulting in delays in the resolution of your parenting matter
3.The Family Courts may consider any orders or findings made by the Children’s Court regarding the protection of your children and will be heavily guided by any DHHS report in relation to the risk of harm that you, your former partner or another caregiver poses to your children.
What can you do?
If DHHS is not yet involved in your parenting matter but you have concerns about the wellbeing and safety of your children in the care of the other parent, you should speak to a member of our team at Caroline Counsel Family Lawyers immediately about how best to protect your children as your failure to act protectively in relation to your children may result in DHHS making adverse findings about your ability to care for your children.
In our extensive experience of parenting matters, it is preferable that protective parenting arrangements are established in the Family Courts via proceedings conducted by the parents in question than in the Children’s Court via proceedings conducted and managed by DHHS due to the uncertainty and lack of control experienced by parents when their matter is before the Children’s Court. Therefore, if DHHS is not yet involved in your parenting matter but are likely to become involved, we strongly encourage that you seek legal advice from a member of the Caroline Counsel Family Lawyers team regarding what action you can take to initiate Family Court Proceedings and take protective action regarding your children.
If DHHS is already involved in your parenting matter, it is crucial that you seek legal advice regarding the likely impact of DHHS’s involvement. You should not pursue DHHS for information yourself as being overzealous or aggressive in your pursuit of information from DHHS can negatively impact their findings in relation to you. Instead, you should speak to Caroline Counsel Family Lawyers regarding how best to get access to information about DHHS’s investigation.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as at 15 September 2020. We recommend you obtain specific advice relevant to you and your family’s situation.
Maddison McCarthy
Paralegal | Law Graduate: Caroline Counsel Family Lawyers
