When relationships break down it can be difficult to make decisions about your children and about how property, superannuation and financial resources should be divided.

If you can’t reach agreement with your ex, or another parent, an application can be made to the Federal Circuit and Family Court of Australia (“FCFCOA”). However, before you start a court case, you must try to reach an agreement with the other person, usually with the help of a dispute resolution service, provided it is safe to do so. It is important to get legal advice before attending dispute resolution, so that you are in a better position to negotiate an agreement or narrow the issues in dispute.

We can also help you if you are planning to separate, get divorced, want to create a parenting plan or need advice about obtaining consent orders.

Our lawyers have considerable experience assisting parties to resolve family law issues and, where an agreement can’t be reached, conducting litigation in the FCFCOA.

We have particular expertise in complex parenting matters, including:

• matters involving allegations of family violence;

• matters involving issues around parentage and surrogacy;

• domestic and international relocation;

• international parenting matters; and

• matters involving medical treatment.

We also have significant family law appellate experience, including conducting single Judge and Full Court appeals in the FCFCOA and the High Court, and can provide advice about commencing an appeal.

Child abduction is when a parent takes a child to another country to live without the other parent’s consent, or they take a child on a holiday with the other parent’s consent but they don’t return after the holiday.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Child Abduction Convention) is an agreement between Australia and some other countries to return children to the country where they used to live, when their parents can’t agree.

If the Hague Child Abduction Convention is in force between Australia and the country where the children were living, a court in Australia might be asked to make an order for the children to return to the other country. This is called a return order.

In most cases, the Australian Central Authority will start the court case in Australia through a State Central Authority (in NSW this will be the Department of Communities & Justice).

The Judge will only make a return order if certain requirements are met. These requirements are sometimes called “threshold conditions” or “jurisdictional facts”. If all of the jurisdictional facts are met, the Judge must make a return order unless a defence is established. There are limited defences that can be raised.

Hague return proceedings do not focus on what is in the best interests of the child. However, if a return order is made, the Court will carefully consider whether to make any conditions to return, to make the transition back to the other country easier and safer for the child.

These cases often involve complex questions and can be difficult to understand. If you are involved in a Hague return proceeding it is important that you get help from a lawyer who understands this area of law. Phillips Levy Bennett Legal has a wealth of experience helping parents and children in child abduction cases. We can also help you apply for a grant of Legal Aid, or for funding through the International Child Abduction Respondents Scheme (“ICARS”), if you are eligible.

If you are involved in a dispute because your child has travelled overseas, it is important that you act quickly.

When separated parents live, or want to live, in different countries, it can be difficult to come to an agreement about the parenting arrangements for children. Family violence, financial pressures, culture, language and immigration issues often compound the difficulties parents face when trying to resolve international parenting disputes.

Phillips Levy Bennett Legal helps clients resolve international parenting disputes and, where issues can’t be resolved through negotiation or mediation, represents clients in court to obtain appropriate orders.

We can advise on a wide range of matters, including:

• What to do if you think someone might take your child overseas without your permission (or a court order);

• What to do if someone has taken your child out of Australia without permission;

• What to do if you think someone has brought your child to Australia without your permission, and you are not in Australia;

• Whether a court in Australia can make orders about your child and, if so, what kind of orders the court can make;

• Whether court orders made in another country are recognised in Australia;

• How to register and enforce orders made in another country in Australia;

• Whether orders made in Australia can be registered and enforced in another country;

• Whether you need permission to take your child overseas, for a holiday or to live permanently;

• Relocation proceedings; and

• Parenting proceedings in Australia, where a child has been returned to Australia following proceedings under the Hague Child Abduction Convention.

If you think that your child might be taken out of Australia without permission you need to act quickly.

We act for clients both in and outside of Australia. We can also assist government and non-government agencies both in Australia and overseas seeking advice or training in relation to jurisdictional and cross-border legal issues relating to children.

When caseworkers within the NSW Department of Communities and Justice have concerns about the safety, welfare and wellbeing of a child or young person, they might start a court case in the Children’s Court of NSW and seek orders under the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”).

If the situation is urgent, an application might be made for an emergency care and protection order.  This is an order placing a child in the care responsibility of the Secretary of the Department of Communities and Justice for a period of 14 days.

In most cases, an application is made for a care order, which is an order allocating the Secretary parental responsibility for a child or young person for either a fixed period of time (up to two years) or until the young person reaches the age of 18.

The Children’s Court can however make other types of orders, including:

• An order allocating some or all aspects of parental responsibility for a child to someone other than the Secretary (for example a parent, relative or carer);

• A guardianship order;

• A supervision order;

• An order accepting undertakings;

• An order prohibiting someone from doing something;

• An order for the provision of support services and orders to attend therapeutic or treatment programs;

• A contact order, and

• A parent capacity order.

The Secretary, the child or young person and each person who holds parental responsibility for the child has a right to appear before the Court and participate in the case.  Any other person who has a genuine concern for the safety, welfare and wellbeing of the child or young person can ask the Court to be joined as a party to the case.  Depending on the case, a person concerned about the child could also ask the court to hear their views, without joining them as a party.

Although only the Secretary can ask the Children’s Court to make a care order, any person sufficiently interested in the welfare of the child can make an application to the Children’s Court for leave to vary or rescind a care order, if the situation changes after the care order is made, and the person satisfies the special requirements in the Care Act.  This kind of application is often referred to as a section 90 application.

A person who is dissatisfied with an order (other than an interim order) made by the Children’s Court can appeal to the District Court (or the Supreme Court if the order is made by the President of the Children’s Court).  This is often referred to as a section 91 appeal. In a section 91 appeal, the Care Act governs the proceeding.

Sometimes applications are made to judicially review interim orders or final orders made by the Children’s Court or the District Court under the Care Act.  Applications for judicial review can be made, on limited grounds, to the NSW Supreme Court or the NSW Court of Appeal. 

Where an appeal from an order of the Presidential Children’s Court is heard by a single Judge of the Supreme Court, an application for leave to appeal can be made to the NSW Court of Appeal.

Applications for judicial review, or for leave to appeal, are not applications made under the Care Act (even though the decision was made under the Care Act).  These kinds of cases often raise complex issues and can be difficult to understand.

Our lawyers have a wealth of experience in care and protection and related proceedings.  We can help with:

• Care and protection proceedings in the Children’s Court;

• Section 91 appeals in the District Court and Supreme Court;

• Judicial review proceedings in the Supreme Court or NSW Court of Appeal;

• Applications for leave to appeal in the NSW Court of Appeal; and

• Applications made in the parens patriae jurisdiction of the Supreme Court.

Adoption is the transfer of all legal rights and responsibility from a birth parent to the adoptive parent. Once a child is adopted, the law regards the child as if they were born to the adoptive parents. The child will get a new birth certificate which will say that the adoptive parents and adoptive siblings have been the child’s family since birth. The child will also get an integrated birth certificate, which will include information about their birth family, and their adoptive family.

In NSW, only the Supreme Court can make an adoption order. In deciding whether to make an adoption order the court will consider lots of different things, but the overriding consideration will be the child’s best interests.

When children in out of home care are adopted, their foster carer becomes their legal parent. The adoptive parent will make all the decisions about the child and arrange contact with their birth family. In most cases, the child will have an Adoption Plan, which will set out the plans for the future, including about contact.

It is really important that the proposed adoptive parents, birth parents and other important people talk about the Adoption Plan before the adoption order is made, and try to agree about the plans for the future, even if they don’t agree to the adoption. Adoption Plans can be registered with the court and in some circumstances they can be reviewed if things change after the order is made. A good way to make sure that contact happens in the future is to sign and register the Adoption Plan. You can get advice about an Adoption Plan before you sign it.

Although the most common type of adoption in NSW is when children in out of home care are adopted by their foster carer, there are many other types of adoption, including children being adopted by a step-parent or relative, or children being adopted from another country in accordance with an international agreement between Australia and another country. Each type of adoption has different requirements.

Our experienced lawyers can help with:

• Out of home care adoptions;

• Step-parent or relative adoptions;

• Discharge of an adoption order;

• Recognising foreign adoption orders; and

• Post adoption contact.

Some decisions made by NSW government agencies (or agencies acting on behalf of the NSW government) can be reviewed by the NSW Civil and Administrative Tribunal (“NCAT”). This is called administrative review.

NCAT can review some decisions made under the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”) about authorised carers, including a decision to:

• authorise or not authorise a person as a carer;

• to cancel, suspend or impose conditions on a person’s authorisation, or

• to remove a child or young person from the care of an authorised carer.

It is important to remember that not all decisions are reviewable by NCAT.

In most cases, you will need to ask the agency that made the decision to review the decision before you can make an application to NCAT. This is called internal review. If the decision is exempt from internal review, or the matter is urgent, you may be able to apply directly to NCAT.

In some circumstances it may be possible to seek a stay of a decision to cancel or suspend a carer’s authorisation, or to remove a child from the care of an authorised carer.

When making a decision, NCAT will consider all of the relevant evidence, including evidence about things that have happened since the reviewable decision was made. After considering the evidence, NCAT can:

• affirm the agency’s decision

• reverse the decision or part of the decision

• substitute a new decision for the original decision

Our lawyers act in administrative review matters relating to authorised carers.

We can also provide advice in relation to other kinds of reviewable decisions made under the Care Act (including a decision to transfer a care order to another State, or a decision about the suitability of a person to be a guardian) and under the Adoption Act 2000.