Children’s Court made a decision I'm unhappy about

An appeal means that a higher court may make a fresh decision when someone is unhappy with a decision of the Children’s Court. Not all decisions can be appealed against.

Anyone who was a party to the original proceedings in the Children’s Court can appeal against the decision if they are dissatisfied with the order made. If you were not a party to the proceedings, you cannot file an appeal.

You need to wait until the Children’s Court case has finished and the Court has made a final order. An exception to this is if the Children’s Court refuses you permission to be joined as a party to the case.

If this happens you can appeal against that decision straight away without waiting for the case to finish. It is not possible to appeal against an ‘interim order’ (ie, a temporary order made during the course of the Children’s Court proceedings).

For example, you cannot appeal a decision:

• that your children are in need of care and protection (‘establishment’), 
• refusing an application for an assessment by the Children’s Court Clinic, 
• giving someone interim parental responsibility for your children,
•  setting the amount of interim contact you will have with your children.

To appeal against a decision of a magistrate in the Children’s Court, you must lodge your appeal in the District Court.

To appeal against a decision of the President of the Children’s Court, you must lodge your appeal in the Supreme Court.

In very limited situations, it is sometimes possible to apply to the Supreme Court to review a decision made by the District Court. You will need to see a lawyer to get advice about this.

The Court hearing the appeal will take a fresh look at the whole case, and make its own decision about what final orders to make. The Court will usually have all the same evidence as the Children’s Court, as well as any new evidence which it is important for the Court to consider.

You cannot appeal against an interim order. Instead, there are two ways to challenge an interim order of the Children’s Court: 

• if circumstances have changed since the order was made, you can apply to change it by making a ‘section 90’ application for ‘variation or rescission’ of the order (see BOOKLET 3: Things have changed and I want my kids back: what can I do?); or
• in rare cases, you may apply to the Supreme Court to change an interim order. These cases are very unusual and you should see a lawyer about whether it is possible in your case

Legal Aid NSW can sometimes help if you want to appeal to the District Court or the Supreme Court. To be granted legal aid, you will need to show that you meet Legal Aid’s ‘means test’ (that you are within our income and assets limits), and ‘merits test’ (that your case has a reasonable prospect of success). If you don’t qualify for legal aid, you may choose to pay a lawyer privately to represent you, or represent yourself.