Navigating family law and child protection: what parents and carers need to know

If you are involved with both the family law system and Child Protection, it can feel difficult to understand which court is dealing with what, how the systems work together, and what steps you should take next. While these are separate legal systems, both focus on the care, safety and wellbeing of children. 

For parents and carers, this overlap can be confusing and stressful. You may be dealing with Child Protection concerns, Children’s Court hearings, family law proceedings about parenting arrangements, or all of these at the same time. Understanding the difference between each process can help you make informed decisions and prepare for what lies ahead. 

This article explains the intersection between the Federal Circuit and Family Court of Australia (FCFCOA) and the Children’s Court of Victoria, and outlines how our family law and child protection team can assist parents and carers to navigate these systems with confidence. 

If you are unsure where you stand, or you are already involved in one or both systems, our team can help you understand the process and your options. For confidential assistance, contact our Family & Relationship Law Team on (03) 5273 5273. 

Children’s Court (Family Division)

The Family Division of the Children’s Court of Victoria deals with matters about the protection and care of children who are said to be at risk of harm. It can also hear some Intervention Order matters. 

These cases often begin after involvement by the Department of Families, Fairness and Housing (DFFH) through Child Protection. In some matters, Child Protection may investigate concerns, ask a parent to agree to certain arrangements, or bring proceedings in the Children’s Court. In more serious situations, a child may be removed from a parent’s care. 

The Children, Youth and Families Act 2005 (Vic) (the CYF Act) governs both the decision-making framework of the Children’s Court and the actions of Child Protection. 

If you are a parent, grandparent, kinship carer or another significant person in a child’s life, you may still have an important role in Children’s Court proceedings. In some cases, it may be possible to seek to participate in the matter if you have a direct interest in the child’s care and welfare. 

Family Law Jurisdiction

Parenting matters are determined by the FCFCOA under the Family Law Act 1975 (Cth). This Court deals with parenting arrangements for children after separation, including who a child lives with, spends time with and how major long-term decisions are made. 

For families already involved with Child Protection, it is important to understand that family law proceedings in the FCFCOA do not automatically override Children’s Court orders. The two systems can interact, but they do not do the same job. 

Best Interests of the Child 

Although the two courts operate under different laws, both are required to treat the best interests of the child as the most important consideration. 

• Section 10(1) of the CYF Act provides that the best interests of the child must always be paramount. 

• Similarly, Section 60CA of the Family Law Act requires the Court to regard the best interests of the child as the paramount consideration when making parenting orders. 

In practical terms, that means each court focuses on the child’s safety, welfare and long-term wellbeing, even though the legal pathway and the orders available in each court are different. 

Concurrent Proceedings and Jurisdictional Interaction 

Section 69ZK – Limits on FCFCOA Orders 

Section 69ZK of the Family Law Act limits when the FCFCOA can make parenting orders if a child is already under the care of someone under a Children’s Court order. 

In general, if the Children’s Court is already making orders about a child’s care, the family law court cannot make inconsistent parenting orders unless: 

• the order is expressed to commence when the child is no longer under that care; or 

• the relevant State department (DFFH) provides written consent. 

Where both courts are involved at the same time, the family law court will often pause or adjourn its proceedings until the Children’s Court matter is further progressed or finalised. 

Information Sharing and Notifications 

The Family Law Act also includes processes for sharing information with Child Protection where concerns are raised about a child’s safety. 

Section 67Z – Notification of Risk 

If a party to family law proceedings alleges that a child has been abused or is at risk of abuse, and the required notice is filed with the Court: 

• the Court must notify DFFH; and 

• DFFH may provide a response outlining its past or current involvement with the family, and any recommendations considered appropriate. 

Section 67ZA – Mandatory Reporting by Court Personnel 

Some professionals involved in family law proceedings are required to notify DFFH if they form a reasonable suspicion that a child has been abused or is at risk of abuse. 

That notification must be made as soon as practicable and set out the basis for the concern. 

Section 91B – Request for Intervention 

Section 91B of the Family Law Act allows the Court to ask DFFH to intervene in proceedings if concerns arise about a child’s welfare. 

Following such a request: 

• DFFH will assess the matter and determine the appropriate response; 

• it may elect to intervene and become a party to the proceedings; and 

• if it intervenes, it has the usual rights of a party, including filing evidence, calling and cross-examining witnesses, and making submissions. 

In many matters, DFFH is given time to consider the request and provide a written response to the Court. 

If DFFH elects not to intervene: 

• there is no mechanism to compel intervention; and 

• there is no avenue of appeal against that decision. 

These processes can have a significant impact on the timing and progress of family law proceedings, which is why early advice is important if Child Protection issues are involved. 

What this means for parents and carers 

• The Children’s Court and FCFCOA operate concurrently but independently. 

• The Children’s Court will generally take precedence where a child is subject to protective orders. 

• Information can be shared between the courts and DFFH, but each court still has its own role and limits. 

• If Child Protection is involved, it is important to get early advice so you understand which court is dealing with which issues, what orders are already in place, and what steps are open to you. 

How We Can Assist 

At Coulter Legal, we assist parents, grandparents, kinship carers and other significant family members who are navigating Children’s Court and family law matters. We understand that these matters are often urgent, emotionally demanding and procedurally complex. 

We can assist by: 

• explaining the difference between the Children’s Court and the family law system in plain language; 

• advising you about the practical effect of Child Protection involvement on your parenting matter; 

• assisting you to respond to Child Protection investigations, proposed safety arrangements and Court applications; 

• representing you in Children’s Court proceedings and related family law matters; 

• helping you understand the orders in place, the next court events, and the steps you need to take; and 

• providing clear, practical guidance so you can navigate the process with greater confidence. 

If you or your family are dealing with Child Protection concerns, Children’s Court proceedings, or parenting issues in the FCFCOA, our team can help you understand the process and move forward in a clear and informed way. Contact Coulter Legal on (03) 5273 5273 to discuss your circumstances.