Legislation covering child protection and child wellbeing services in NSW
Includes the Children and Young Persons (Care and Protection) Act 1998, care applications and the Children's Court
The Children and Young Persons (Care and Protection) Act 1998 is supplemented by a range of other legislative and regulatory instruments. For example:
- Children and Young Persons (Care and Protection) Regulation 2000 also forms part of the framework for providing OOHC services, particularly the need for providers to be accredited as designated agencies through the NSW Children’s Guardian
- Children’s Court Act 1987 establishes the roles and responsibilities of the Children’s Court
- The Adoption Act 2000 is the legal framework for the adoption of children in NSW and (in conjunction with other legislation) those from overseas
- The Community Welfare Act 1987 aims to ensure the provision, to the maximum extent possible, of services for and assistance to people disadvantaged due to lack of food, shelter or other basic necessities, natural disasters (for example, floods), disability, age, ethnic group membership, lack of family support
- Privacy and Personal Information Protection Act 1998 which sets out requirements for the collection, storage, access and accuracy, use and disclosure of personal information
- Health Records and Information Privacy Act 2002 which sets out the requirements for the collection, storage, access and accuracy, use and disclosure of personal health information
- Privacy Act 1998 (Commonwealth) which sets out the requirements for the collection, use and disclosure of personal information (including non-government agencies)
- State Records Act 1998 directs each public office to maintain full and accurate records of the office’s activities
- Community Services (Complaints, Reviews and Monitoring) Act 1993 which provides the Ombudsman with the power to conduct systemic reviews of the deaths of children at risk of harm or those in care
- Ombudsman Act 1974 which sets out the role of the Ombudsman in monitoring and reviewing the provision of community services, oversighting employer handling of allegations of reportable conduct against their employees and complaint handling.
- Guardianship Act 1987 which sets out the responsibilities, functions, orders and principles that the Guardianship Tribunal applies when appointing guardians for people with disabilities, including young people aged 16–17.
- Crimes Act 1900 which defines criminal conduct
- Coroners Act 1980 which requires the Coroner or the Deputy Coroner to examine certain child deaths, including those of a child in care, a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 and a child whose death is or maybe due to abuse or neglect or that occurs in suspicious circumstances.
- Victims Rights Act 1996 and Victims Support and Rehabilitation Act 1996. A child or young person who has experienced abuse may be eligible for compensation. Victims Services New South Wales runs the scheme, which also helps victims in other ways, such as with counselling, support and information.
- Commission for Children and Young People Act 1998 which provides for conducting the Working with Children Check and also administering the Child Sex Offender Counsellor Accreditation Scheme
Commonwealth legislation relating to children and families
Federal and state law relationship
Section 69ZK of the Family Law Act 1975 prevents the Family Court from making any order under the Family Law Act (other than a child maintenance order) about a child or young person who is under the care of a person under a child welfare law unless the order comes into effect when the child is no longer in care or with the consent of the relevant child welfare officer.
Section 69ZK(2) provides that any order or authority to act pursuant to a child welfare law is not affected by the Family Law Act.
That is, Community Services may take action (for example removing a child from a parent) notwithstanding the fact that there is an existing family law order (for example providing for the child to live with that parent).
Subsection (3) provides for an adjournment of Family Court proceedings pending the outcome of proceedings under the Children and Young Persons (Care and Protection) Act 1998.
Family Law Act 1975 - child protection aspects
The Family Law Act 1975 gives the Family Court of Australia and Federal Magistrates Court of Australia power to make decisions about children, usually as part of family law proceedings.
The Family Court of Australia and Federal Magistrates Court of Australia can make orders in respect of children.
The Family Law Act covers disputes between persons with an interest in the child’s care (usually parents) about decisions for the child where the child is not necessarily ‘at risk’.
In contrast, the Children and Young Persons (Care & Protection) Act 1998 applies in relation to disputes between the state (Department of Human Services NSW, Community Services) and the ordinary guardians of the child, where the child or young person is considered by the Director-General to be at risk of significant harm and in need of care and protection.
Parenting orders in Australian Courts made after 1 July 2006 usually deal with the following concepts:
- Where will the children live? (a “live with order”)
- How much time will the children spend with the person with whom they do not live? (a “spend time with order”)
- Who will make important decisions about the children? (a “parental responsibility order”)
- Other matters including but not limited to paternity testing, adult child maintenance, some child support matters.
On occasion, Community Services can be asked to join proceedings before a court exercising family law jurisdiction. On other occasions Community Services can commence proceedings before a court exercising family law jurisdiction.