Relevant provisions of the Act  S 62 provides  “ A care order may be made an interim order or a final order, except as provided by this Part.  The Children’s Court may make an interim order after a S 61 Care Application has been filed and prior to the application being determined that the child was in need of care and protection pursuant to S 72

 Section 69 (2) of the Children and Young Persons (Care & Protection) Act 1998 provides  “ The Director General ( now known as the Secretary), in seeking an interim order, has the onus of satisfying the Children’s Court that is it not in the best interests of the safety welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility”  Section 70 of the Children and Young Persons (Care & Protection) Act 1998 provides for Other interim orders.  “ The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of proceedings.”

 Section 70A of the Children and Young Persons (Care & Protection) Act 1998 provides  Consideration of necessity for interim care order  “ An interim care order should not be made unless the Children’s Court is satisfied that the making of the order is necessary, in the interests of the child or young person, and it preferable to the making of a final order or an order dismissing the proceedings.”

Re Jayden [2006] NSW SC 1428 (21 December 2006) [77] The expression “ interim order” is familiar in law. Ordinarily, it is an order of a temporary or provisional nature pending the final resolution of the proceedings. An applicant for an order of this kind, generally speaking does not have to satisfy the Court of the merits of its claim on a balance of probabilities. An interim order under the Act is an order of this nature, and the Children’s Court does not have to be satisfied of the merits of an applicant’s claim on a balance of probabilities before making an interim order. Were S 72 to apply for an interim order, there would be no point in having anything in the Act about interim orders.

[ 78] “It is not desirable to attempt to express the standard of satisfaction for the making of an interim order in words different to those used in the Act. Any label such as “prima facie case” or “arguable case” may be appropriate. The standard is to be discerned from the statute itself.”

 [79] It is sufficient to say that, according to the Act, an Interim care order can be made if the Children’s Court satisfies itself that it is not in the best interests of the safety, welfare and well being of a child that he or she should remain with his or her parents or other persons having parental responsibility [ S 69 (2)], or the making of an interim order is appropriate for the safety welfare and well being of a child or young person [S 70) or that an interim order is necessary, in the interest and well- being of a child or young person and it is preferable to make a final order or an order dismissing the proceedings [S 70 A]. The Children’s Court may be satisfied for example weighing the risks involved on the evidence available at the time (cf M vM [1988] HCS 70; (1988) 166 CLR 59.

Unacceptable risk of harm  DFaCS ( NSW) and Abbey [ 2013] NSW ChC 3  [14] It is now well settled law that in all decisions under the Care Act involving the paramount concern for the safety welfare and well- being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of “unacceptable risk to the child.” The Department of Community Services v “ Rachel Grant”, “ Tracey Reid and Frank Reid” [2010]CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an “ unacceptable risk” of harm to the child see M v M [1988] HCA 68 at [25]

 [15] Whether there is “ an unacceptable risk “ of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard as discussed above see Johnson v Page [2007] Fam CA  [16] The standard of proof is on the balance of probabilities : S 93 (4) of the Care Act. The High Court decision in Briginshaw v Bringshaw [1938] HCA 34 is relevant in determining whether the burden or proof, on the balance of probabilities has been achieved Director General of Department of Community Services ; Re Sophie [2008] NSW CA 250.

 PRACTICE NOTE NUMBER 5  25. Hearing of Interim and Leave Applications  The hearing of a contested application for an interim order or a contested leave application under S 90 (1) of the Care Act must be no longer than two hours except in exceptional circumstances  25.2.Cross examination will be allowed at such a hearing only in exceptional circumstances

 22 Evidence on affidavit  Except for the following documents evidence on behalf of a party shall be filed in affidavit form unless the Court otherwise directs (a) A written report under S 61 (2)(b) of the Care Act (b) A report from an authorized clinician (c) Any report containing expert opinion evidence to be admitted into evidence pursuant to paragraph 28.1 of this Practice Note (d) Documents produced under subpoena that are specified in the schedule of documents referred to at paragraph (ii) of this Practice Note

 An affidavit shall be made in the first person.  22.3 The body of an affidavit shall be divided into paragraphs and numbered consecutively, each paragraph being as far as possible confined to a distinct portion of subject matter  22.4.Where an affidavit contains Annexures an extract from a document, it shall be a fair extract and original document shall be made available for inspection by the Court or another party at the direction of the Court. Re Liam.

PRACTICAL TIPS IN RUNNING AN INTERIM APPLICATION  1. Preserving your client’s position  2. Timing the fight  3. Factors to consider in your clientssubstantive matter v Interim hearing  4. Changed circumstances - S 106 A matters

EVIDENCE TO SUPPORT YOUR INTERIM APPLICATION  1. Best evidence - reports prepared  2. Urinalysis screens  Affidavit evidence from Support Services  Subpoenas  Subpoena Schedule

NO UNACCEPTABLE RISK  1. Give the Court viable protective options  Be prepared with a MOCO outlining the orders sought  Consider other options

 On the evidence a decision must be made to determine when to hold them and when to fold them!!