Last updated 18 July 2016
An existing family law order does not affect the ability of the Childrens Court to make a child protection order or stop the Department of Communities, Child Safety and Disability Services (Child Safety) from intervening with a family and dealing with the child protection issues, including taking the child into care.
Once a child protection order is made, it will override a current family law order. For example, if a child protection order is made that says a parent can only have contact with the child if it is supervised by Child Safety, then that child protection order will override any earlier family law order giving the parent unsupervised time with the child.
If a child protection order is already in place, parents can start family law proceedings; however, no family law orders can be made in relation to the child unless the order is worded so that it comes into effect when the child protection order ends or Child Safety consents to the family law application proceeding (s 69ZK Family Law Act 1975 (Cth)).
If family law proceedings are commenced in the Family Law Court, and that court becomes aware that child protection proceedings are taking place, and a child protection order is likely to be made, then the Family Law Court may, and usually will, adjourn the family law proceedings until the child protection proceedings are finalised.
In some circumstances, Child Safety may consider one parent of a child is not able and willing to protect the child from unacceptable risk of harm, but another parent or relative is. Child Safety may assist that other parent or relative to care for the child, but take no formal steps to initiate child protection proceedings. If there is no formal family law order in place to enable that to occur, the parent or family member will be encouraged to commence family law proceedings.
Child Safety may apply for a child protection order for the child until the appropriate family law order has been made. Families in these circumstances should be mindful that the amount of assistance provided by Child Safety after the family law order is made will be very limited and may not, for example, extend to supervising contact with the parent who poses a risk to the child.