The DHHS may apply to the Children’s Court for protection orders. The grounds upon which the DHHS can apply for these orders, as set out in section 162 of the CYF Act, are:
athe child has been abandoned by his or her parents and, after reasonable enquiries
i the parents cannot be found; and
ii no other suitable person can be found who is willing and able to care for the child;
b the child’s parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;
c the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
d the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
e the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
f the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.
Section 162(2) of the CYF Act provides that harm may be constituted by a single act or omission or by the accumulation of a series of acts or omissions.
The Supreme Court, in the case of Director-General of CSV v B (unreported, 11 December 1992) considered the grounds for a protection application. That case related to an allegation of significant damage to emotional or intellectual development. The judge stated that it was not necessary for the damage to be lasting or permanent; the damage needed to be “important or of consequence” to the child’s emotional or intellectual development.
The CYF Act (s 183) allows anyone who reasonably believes that a young person needs protection to report the circumstances to the DHHS or to the police. This report is not a breach of professional ethics or a departure from accepted standards of professional conduct if it is made in good faith. A person reporting in good faith is not liable to any action for damages or other legal proceedings for having done so.
The report is only admissible as evidence in proceedings before a court or tribunal with the written consent of the reporter. The person or agency to whom the report is made must not disclose the name of the person making the report to anyone else without the written permission of the reporter.
If there has been a protective intervention report of suspected abuse, DHHS must investigate the subject matter of the report (s 205 CYF Act). The protective intervener (i.e. the DHHS worker) must inform the child and parents that information given may be used in a protection application.
If the protective intervener is satisfied on reasonable grounds that a young person needs protection, they must record that information in the Children at Risk Register. An appeal can be made to the Victorian Civil and Administrative Tribunal (VCAT) against a decision to record a case in the register (s 333(1)).
Any parent considering entering a voluntary agreement with DHHS should obtain advice from a lawyer who is experienced in dealing with Children’s Court matters (see How legal aid can help, and Legal services that can help).
A number of professionals must report to DHHS cases of suspected child physical or sexual abuse that they become aware of in the course of their employment. Failure to report such suspected abuse constitutes a summary offence, which is punishable by a fine of up to $1611.90 (as at 1 July 2019) (s 184 CYF Act).
Under the CYF Act (s 182) the professionals mandated to report suspected child abuse are doctors, midwives, nurses, teachers (including principals and early childhood teachers), childcare proprietors, childcare workers with post-secondary qualifications, registered psychologists, youth justice officers, youth parole officers, out-of-home-care workers, youth justice custodial workers and police officers. Further classes of professionals may be added to the list of mandatory reporters. DHHS can provide an up-to-date list of professions.
Under the CYF Act (ss 228–239), the DHHS can apply for an order to investigate whether a child needs protection. An application can be made without notice with the leave of the court. An order can last for up to 10 days if obtained without notice and for up to 21 days if obtained with notice. An order may authorise a child’s parents to be interviewed or for a child to be medically examined. The results of the procedure must be submitted to the court. In practice, the DHHS uses these provisions very rarely.
Only DHHS initiates protection applications. Before the court hearing, a protection application may be commenced in two ways:
1 In urgent cases, the protective intervener (i.e. the DHHS worker) may, with or without a warrant, take the young person into emergency care. The young person must be taken to a Children’s Court no later than 24 hours after they have been taken into care (s 242 CYF Act).
2 In non-urgent cases, DHHS issues a notice to the child’s parents that a protection hearing will take place. The notice must be posted 14 days before the hearing or delivered five days before the hearing (s 243).
In 2013, the CYF Act was changed so that only young people aged 10 years or older can be represented by a lawyer. The young person must have separate representation from that of their parents. If it is impossible to get legal advice before the court hearing, the duty lawyers at court may be able to help (see “Duty lawyers” in How legal aid can help, and also see Legal services that can help).
To prevent lengthy delays in the hearing of contested protection applications, there is a dispute resolution procedure for contested cases. The procedure is called a conciliation conference.
An independent convenor conducts the conciliation conference, which may be attended by DHHS, the young person’s parents, possibly the young person, relatives, a member of the family’s ethnic community and legal representatives.
The intention of the conference is to reach an agreed settlement that ensures the safety and well-being of the young person. Any settlement has to be ratified by the Children’s Court.
The CYF Act provides for three types of reports in the Family Division:
1 protection reports;
2 disposition reports; and
3 additional reports (ss 553–562 CYF Act).
Protection and disposition reports are prepared by DHHS. The magistrate may request additional reports from DHHS, the Children’s Court Clinic, or from a specified person.
A protection report – which is provided before the grounds of the protection application are proved – must only deal with matters relevant to the question of whether the young person needs protection (s 555). A subsequent disposition report includes a draft case plan, if necessary (s 558(a)).
If the report recommends that the young person be removed from home, it must detail the steps taken by DHHS to provide the services necessary to enable the young person to remain at home (s 558(c)).
There are provisions about access by the young person and their parents to Family Division reports (ss 556, 559). Access may be withheld from the young person or the parents if it is deemed prejudicial to the physical or mental health of the young person or their parents. A report cannot be withheld from a lawyer representing the young person or their parents.
If a case is adjourned, the young person is usually placed on an interim accommodation order. Such an order can take five forms:
1 releasing a young person on their own undertaking;
2 releasing a young person to a parent;
3 placing a young person with a suitable person (following an assessment by DHHS);
4 placing a young person in an out-of-home care service (e.g. a DHHS short-term unit or placement via a foster care agency); or
5 placing a young person in a secure welfare service.
A young person can only be placed in a secure welfare service if there is a substantial and immediate risk to the child; and not because there is no other adequate accommodation. An initial secure welfare placement cannot exceed three weeks. It can be extended once for a further three weeks if exceptional circumstances exist (s 267(2)(c) CYF Act).
Conditions, including that of access, can be placed on an interim accommodation order. A young person’s whereabouts may be withheld from a parent if special circumstances exist, or if the young person’s safety or wellbeing is in jeopardy (s 265). An appeal may be made to the Supreme Court about the making or dismissing of an application for an interim accommodation order (s 268).
A magistrate who finds a protection application proven can then make a protection order.
As a result of amendments effective from March 2016, there are now only five substantive orders available to the Children’s Court.
Before the court can make a protection order that removes a child from parental care, it must be satisfied that all reasonable steps have been taken by DHHS to provide the services necessary to enable the child to remain in parental care (s 276 CYF Act).
The orders available to the court are:
1 An undertaking
An undertaking may be for up to six months or for up to 12 months in special circumstances. This is the least intrusive option and does not involve statutory supervision (s 278).
2 Family preservation order
This order gives DHHS the responsibility for the supervision of the child but involves the child remaining in the day-to-day care of one or both parents. Family preservation orders typically contain numerous conditions directed towards parents and children. These orders are for up to 12 months or, in special circumstances, for up to two years (ss 281–282).
3 Family reunification order
This order transfers complete parental responsibility for the care of the child to DHHS. The order can be made for up to 12 months, effectively back-dated to when the child was first out of parental care due to a court order, less any period or periods when the child returned to parental care. Conditions attached to family reunification orders should promote reunification of the child with a parent. The child can be returned to parental care during the period of the family reunification order. On this occurring, the child is taken to be on a family preservation order.
4 Care by secretary order
This order transfers complete parental responsibility to DHHS and can only be made for two years or until the child turns 18.
The Children’s Court has no power to place conditions on this order and thus any contact between the child and parents is entirely at the discretion of DHHS.
If DHHS returns the child to parental care, the care by secretary order may be converted administratively to a family preservation order.
5 Long-term care order
If there is a person or persons available with whom the child can continue to live until the child is 18, the long-term care order is effectively a care by secretary order that lasts until the child is 18. A long-term care order may also be converted administratively to a family preservation order in the event that a child is returned to parental care.
In making a finding or a protection order, a magistrate must make decisions in the best interests of the young person. Other considerations a magistrate must take into account include:
• giving “protection and assistance to the family as the fundamental group unit of society”;
• for Aboriginal or Torres Strait Islander children, the need to maintain cultural identity;
• the preservation of child–family relationships;
• minimum disruption to education and employment; and
• the child’s wishes (but with the child’s age, maturity and other relevant considerations affecting the weight to be given to those wishes) (s 10).
Protection orders can be extended by an application from DHHS. However, the Children’s Court cannot extend a family reunification order beyond a period of 24 months. This period is calculated cumulatively, taking into account all the time a child has been out of parental care due to a court order. This means that unless a child is returned to parental care, the only orders available are a care by secretary order, a long-term care order or a permanent care order.
Under the CYF Act (s 319), an application may be made for a permanent care order. This order can only be made if the young person’s parent has not had the care of the young person for at least six months, or for periods that total at least six months of the preceding year.
A permanent care order gives a person who is not the parent of the young person long-term parental responsibility of the young person. The order may last until the young person turns 18 or marries, whichever happens first. A permanent care application is made by DHHS in relation to approved care givers, but a permanent care order cannot be made in favour of DHHS.
Application may be made to vary or revoke the order, but can only be made by a parent with the court’s leave. A successful application (with the prior consent of DHHS) by the custodian for parental responsibility under the Family Law Act 1975 (Cth) terminates the permanent care order.
A permanent care order may contain provision for contact between a child and his or her parent for up to four times a year (s 321(1)(d)). There is no such restriction upon the court making an order stipulating frequency of contact with other people significant to the child (i.e. siblings) (s 321(1)(e)).
Under the CYF Act (s 259), any person who cares for a young person under 17 years of age – who believes that there is a “substantial and presently irreconcilable difference between themself and the young person to such an extent that the care and control of the young person are likely to be seriously disrupted” – may apply to the court that such a finding exists.
Also, a child who believes that there is a substantial and presently irreconcilable difference between themself and the person who has custody of them to such an extent that the care and control of them are likely to be seriously disrupted may, subject to section 259 of the CYF Act, apply to the court for a finding that such a difference exists.
Before an irreconcilable difference application can be heard, conciliation counselling must take place, or be attempted (unless exceptional circumstances exist) and DHHS must provide a Certificate of Conciliation Counselling (s 260). A magistrate who finds that there are irreconcilable differences between the parties will make a protection order (see “Magistrate’s order”). Irreconcilable difference applications are very rare.
If a young person is in the care of the Secretary of the DHHS, the secretary may take legal proceedings on behalf of that young person in relation to the property or rights of the young person (s 172(2) CYF Act).
The Secretary of the DHHS may also take into care, without a warrant, a young person under their care. This is subject to anything else expressly stated in the CYF Act; for example, sections 173–176, which relate to the placement of young people.
Under the CYF Act or the Adoption Act 1984 (Vic) (“Adoption Act”), the secretary may place a young person who is in their care:
• in an out-of-home care service (e.g. a DHHS medium-term unit or a foster placement);
• in a secure welfare service for 21 days (or a further 21 days in exceptional circumstances);
• in any other suitable situation, as circumstances require (s 173(1)); or
• for adoption under the Adoption Act if the child is on a care by secretary order.
In making a decision to place a young person, the welfare of the young person must be of paramount concern, and the Secretary of the DHHS must make provision for the physical, intellectual, emotional and spiritual development of the young person, in the same way that a good parent would (s 174).
There are specific provisions in the CYF Act (s 11) regarding principles of decision making.
Time limits are provided for in the case planning process. Sections 331 and 333 of the CYF Act provide for internal review of departmental decisions. Further appeal to VCAT may be made by the young person or parent if they are dissatisfied with the internal reviews established by DHHS.
If a child aged between 10 and 18 years has exhibited sexually abusive behaviour, DHHS may apply to the court that the child be placed on a therapeutic treatment order. Typically, such orders require counselling (during a 12-month order). Satisfactory completion of a therapeutic treatment order generally enables the child to avoid what constituted the sexually abusive behaviour being dealt with in a way that may have resulted in a criminal record.
In more extreme cases, a child may be placed on a therapeutic treatment (placement) order. Such an order gives DHHS responsibility equivalent to the child being placed on a family reunification order.