Skip to Content

Legal issues

Information Exchange

Information about a child, their parents or family/kin that is relevant to assessment and case management and planning is exchanged between FACS and funded service providers within the provisions of relevant legislation. However, some types of information cannot be exchanged, for example the identity of, or information that could lead to the identification of, a person who has made a report to FACS is protected (section 29).

FACS and funded service providers to provide relevant information requested (Chapter 16A and section 248) within 10 business days (unless another timeframe is agreed) or within other timeframes for providing evidence.

Court proceedings

In circumstances where case management has been transferred to a funded service provider before or during court proceedings, FACS and the funded service provider both have important complementary roles:

  • FACS is a model litigant in the proceedings, whether or not initiated by FACS.
  • FACS liaises with a funded service provider and seeks direct contact with a child, their parents, family/kin and carers in order to:
    • continually assess risk
    • coordinate and file evidence in proceedings based on first hand involvement with the child, family/kin and carers and
    • provide the funded service provider with notice when it can be reasonably anticipated that their affidavit/report authors will be required to give evidence in court, for example notifying the FSP and authors when hearing dates are set.

FACS informs the funded service provider when making contact is planned, or if that is not possible, immediately after it has occurred.

  • During court proceedings, funded service providers with case management:
    • facilitate direct contact by FACS casework practitioners with a child, their parents, family/kin and carers
    • share all relevant information including in response to FACS requests for information to enable timely assessment, filing of all relevant evidence in proceedings and progress of the court proceedings.
  • Funded service providers support FACS in Children’s Court proceedings by:
    • Providing evidence including affidavits or reports on the placement and other information on the child, their family and kin and their placement
    • arranging for affidavit/report authors to be available to give evidence in the Children’s Court if required
    • implementing decisions regarding drug and alcohol or DNA testing of parents
    • contributing to developing a care plan with FACS
    • complying with Children’s Court orders, including preparation of section 76 or 82 reports by the due dates and
    • organising contact, respite or other action in accordance with court orders.

Providing evidence

FACS may request a funded service provider with current or prior case management to provide relevant information about a child, their parents or family/kin, to be filed as evidence in court proceedings. Information may include family action plans, OOHC case plans, records of family and sibling contact time, school reports, health reports or other assessments.

The funded service provider makes reasonable efforts to provide the information to FACS within five business days of a request or contacts FACS and negotiates a different time frame.

An employee of a funded service provider may be required to give evidence in the proceedings by way of affidavit or written report. If so, that employee is likely to be required to attend court to be cross examined (asked questions) about that evidence at the final hearing.

Court Outcomes

FACS provides a funded service provider (that is not a party to court proceedings) with information about the court outcomes. Reasonable efforts are made by FACS to provide the information about court outcomes within two business days of FACS receiving a report of the outcome from the FACS legal officer, external legal practitioner or court liaison officer.

The information provided by FACS may include:

  • the date of the court appearance and any future relevant court dates
  • interim or final orders made and any notations to those orders
  • the timetable (due dates) for filing evidence or reports
  • any relevant undertakings given by any party
  • any agreements between parties in relation to family and sibling contact time or other arrangements impacting upon the placement and
  • any other matters that may be relevant to a child’s placement.

Information about a court outcome is important to make sure the funded service provider is aware of and acts in accordance with interim or final orders made by the court, and to:

  • put in place appropriate family and sibling contact times between a child, their parents and family/kin, and provide information to the carer that is relevant to the child’s placement (for children in OOHC)
  • put in place appropriate arrangements to support compliance with other orders, for example a parent capacity order, undertakings or a supervision order.

It is not the role of funded service providers to provide information about court proceedings to:

  • a child – this is the role of the child’s independent or direct legal representative
  • the child’s parents or family/kin – this is the role of the parent’s legal representative.

However a funded service provider casework practitioner may:

  • give information to the child of a general nature in relation to court proceedings
  • facilitate the child making contact with their legal representative
  • facilitate the child making contact with a FACS casework practitioner that is giving instructions or involved in giving instructions in court proceedings.

Information that may not be provided by FACS to a funded service provider includes:

  • information protected by legal professional privilege, for example records containing legal advice given by a FACS legal officer or external legal practitioner
  • Children’s Court Clinic assessment reports and documents filed in the proceedings by other parties, unless the Court has granted leave.

A FACS legal officer is able to provide advice about whether information may be subject to a claim of privilege and, if the information is privileged, whether FACS should agree to waive privilege.

Children’s Court Clinic Assessment

Access to a Children’s Court Clinic Assessment report by a funded service provider that is not a party to court proceedings, can generally only be provided with leave of the Children’s Court. Exceptions include where the assessment report is an annexure or attachment to the child’s care plan.

FACS seeks leave to provide the report to the funded service provider. The FACS legal officer or external legal practitioner makes the application during proceedings and before final orders are made.

Dispute Resolution Conferences

If agreed by all parties, the funded service provider casework practitioner (that is not a party to proceedings) attends a Dispute Resolution Conference (DRC) and provides input, noting:

  • they have/will have a casework relationship with the child, their parents and family/kin
  • they may possess first-hand knowledge about the placement and carer
  • they will most likely be implementing the care plan approved by the court.

Permission for the funded service provider’s casework practitioner to attend the DRC is sought by the FACS legal officer or external legal practitioner, in accordance with FACS’ instructions.

In giving instructions, the FACS casework practitioner considers:

  • the relevance of the casework practitioner’s likely input to the issues in dispute
  • whether the casework practitioner’s input will help all parties reach an agreement
  • the extent of the casework practitioner’s relationship with the child
  • whether the casework practitioner attends all or part of the DRC
  • legal advice provided by the FACS legal officer or external legal practitioner
  • any other relevant factors.

Permission for the casework practitioner to attend a DRC is decided by the Children’s Registrar who convenes the DRC. In considering the request, the Registrar seeks the views of all parties.

If permission is granted, the casework practitioner follows the guidance of FACS’ legal officer or external legal practitioner regarding their participation, and the guidance of the Children’s Registrar.

The funded service provider casework practitioner is bound by confidentiality of the DRC.

Developing a Care Plan

FACS works collaboratively with a funded service provider when developing a care plan for a child. This includes:

  • ensuring the service provider is invited to participate in a care plan meeting
  • providing at least two business days for a service provider to provide input in relation to draft plans (unless a different timeframe is agreed) and
  • providing the service provider with a copy of the sealed care plan as soon as it is approved by the Court.

Funded service providers:

  • assist FACS in convening a care plan meeting and
  • provide written comments in relation to draft care plans (to FACS), within two business days (unless a different time frame is agreed)
  • destroy draft copies of a care plan and only place sealed care plan on the child’s file.

The development of care plans includes cultural plans for Aboriginal and Torres Strait Islander and culturally and linguistically diverse (CALD) children, their parents and families/kin - this is mandatory.

Following making of final orders by the Children’s Court, the funded service provider is responsible for implementing those parts of the care plan that are within its care responsibility.

Section 76 or 82 reports

The funded service provider is responsible for:

  • preparing a section 76 report regarding the progress and outcomes of a supervision order, or section 82 report regarding the suitability of a child’s OOHC arrangements, following making of final orders by the Children’s Court and
  • providing FACS with a copy of the section 76 or 82 report five business days prior to the date on which it is due to be filed.

FACS is responsible for approving and filing section 76/82 reports prepared by a funded service provider. See Functions of Parent Responsibility exercised by FACS.

New court proceedings

Any decision to initiate new care proceedings (section 61) or re-open (section 90) proceedings in the Children’s Court is made by FACS in consultation with a funded service provider with case management. However a child, their parent, family/kin or any person with an interest in the welfare of a child can apply to re-open proceedings.

FACS is always a party to new or re-opened court proceedings.

FACS provides a funded service provider that is not a party to court proceedings with information about new or re-opened court proceedings. FACS provides the information to the funded service provider as soon as it is made available, and where possible, prior to the matter being listed in court.

Joint allocation of PR for children in OOHC

Where a final care order is made allocating PR to a suitable person and the Minister jointly:

  • the child is considered to be in statutory OOHC where the Minister retains the aspect of residence
  • The child is considered to be in supported OOHC where the suitable person (not the Minister) retains the aspect of residence solely.

Case management of children in supported OOHC is not transferred to funded service providers.

Resolving conflict

FACS and funded service providers may experience occasional conflict as a normal part of working together collaboratively and playing different but complementary roles. Conflict may occur in part due to access to resources, different expectations in relation to service delivery or role clarity.

How conflicts are handled, not the fact that they happen, determines whether they are constructive or unhelpful. Being able to express conflict in a professional relationship and between agencies is a sign of a mature and resilient service system.

FACS districts and funded service providers use existing conflict resolution procedures that aim to:

  • resolve problems at a district level in the first instance, and
  • strengthen the capacity of the service system to achieve better outcomes for children, their parents and family/kin.

FACS Central Office is reviewing the state-wide external engagement framework. Once finalised this will provide a mechanism for FACS and funded service providers to escalate systemic issues (including policy amendments) for discussion and resolution.

Was this content useful?
Last updated: 30 Aug 2018
595366