CHILDREN, YOUTH AND FAMILIES ACT 2005

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CHILDREN, YOUTH AND FAMILIES ACT 2005 - SCHEDULE 1

Schedule 1—Transfer of child protection orders and proceedings

Part 1—Introductory

1 Purpose of Schedule

The purpose of this Schedule is to provide for the transfer of child protection orders and proceedings between Victoria and another State or a Territory of Australia or between Victoria and New Zealand—

(a) so that children who are in need of protection may be protected despite moving from one jurisdiction to another; and

(b) so as to facilitate the timely and expeditious determination of court proceedings relating to the protection of a child.

2 Definitions

(1) In this Schedule—

"Children's Court"—

(a) in relation to Victoria, means the Children's Court of Victoria; and

(b) in relation to a State other than Victoria, means the court with jurisdiction to hear and determine a child protection proceeding at first instance;

"child protection order", in relation to a child, means a final order made under a child welfare law or an interstate law that gives—

(a) a Minister of the Crown in right of a State; or

(b) a government department or statutory authority; or

(c) a person who is the head of a government department or statutory authority or otherwise holds an office or position in, or is employed in, a government department or statutory authority; or

(d) an organisation or the chief executive (by whatever name called) of an organisation—

responsibility in relation to the guardianship, custody or supervision of the child, however that responsibility is described;

"child protection proceeding" means any proceeding brought in a court under a child welfare law for—

(a) the making of a finding that a child is in need of protection or any other finding (however described) the making of which is under the child welfare law a prerequisite to the exercise by the court of a power to make a child protection order; or

(b) the making of a child protection order or an interim order or for the variation or revocation or the extension of the period of such an order;

"child welfare law" means—

(a) Chapter 4 of this Act; or

(b) a law of another State that, under an Order in force under subclause (2), is declared to be a child welfare law for the purposes of this Schedule; or

"interim order" means—

(a) an order made under clause 17; or

(b) an equivalent order made under an interstate law;

"interstate law" means—

(a) a law of another State that, under an Order in force under subclause (3), is declared to be an interstate law for the purposes of this Schedule; or

(b) a law of another State that substantially corresponds to this Schedule;

"interstate officer", in relation to a State other than Victoria, means—

(a) the holder of an office or position that, under an Order in force under subclause (4), is declared to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Schedule; or

(b) the person holding the office or position to which there is given by or under the child welfare law of that State principal responsibility for the protection of children in that State;

"participating State" means a State in which an interstate law is in force;

"sending State" means the State from which a child protection order or proceeding is transferred under this Schedule or an interstate law;

"State" means—

(a) a State or a Territory of Australia; or

(b) New Zealand;

"working day"—

(a) in relation to a court, means a day on which the offices of the court are open; and

(b) in relation to the Secretary, means a day on which the principal office of the Department is open.

(2) The Governor in Council, by Order published in the Government Gazette, may declare a law of a State (other than Victoria) to be a child welfare law for the purposes of this Schedule if satisfied that the law substantially corresponds to Chapter 4 of this Act.

(3) The Governor in Council, by Order published in the Government Gazette, may declare a law of a State (other than Victoria) to be an interstate law for the purposes of this Schedule if satisfied that the law substantially corresponds to this Schedule.

(4) The Governor in Council, by Order published in the Government Gazette, may declare an office or position in a State (other than Victoria) to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Schedule.

Part 2—Transfer of child protection orders

Division 1—Administrative transfers

3 When Secretary may transfer order

(1) The Secretary may transfer a child protection order (the home order ) to a participating State if—

(a) in his or her opinion a child protection order to the same or a similar effect as the home order could be made under the child welfare law of that State; and

(b) the home order is not subject to an appeal to the Supreme Court or the County Court; and

(c) the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the child protection order to be transferred (the proposed interstate order ); and

(d) any person whose consent to the transfer is required under clause 4 has so consented; and

(e) the child who is the subject of the order has not given written notice of opposition to the decision to transfer the order in accordance with clause 6(3)(b) and the Secretary certifies in writing that he or she made all reasonable efforts to ensure that the child had an opportunity to seek legal advice in relation to the decision.

(2) The Secretary may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State.

(3) In determining whether a child protection order to the same or a similar effect as the home order could be made under the child welfare law of a participating State, the Secretary must not take into account the period for which it is possible to make such an order in that State.

(4) The Secretary must determine, and specify in the proposed interstate order—

(a) the type of order under the child welfare law of the participating State that the proposed interstate order is to be; and

(b) the period for which it is to remain in force.

(5) The period must be—

(a) if the same period as that of the home order is possible for the proposed interstate order under the child welfare law of the participating State commencing on, and including, the date of the registration of the interstate order in that State, that period; or

(b) in any other case, as similar a period as is possible under that law but in no case longer than the period of the home order.

4 Persons whose consent is required

Sch. 1 Pt 2 cl. 4(1) amended by Nos 52/2013 s. 59, 8/2016 s. 19.

(1) For the purposes of clause 3(1)(d) but subject to subclause (2), if the home order is a family preservation order or a family reunification order, consent to a transfer under this Division is required from the child's parents and any other person who is granted contact with the child under the order.

Sch. 1 Pt 2 cl. 4(2) amended by No. 52/2013 s. 59.

(2) If a parent of the child or any other person who is granted contact with the child under the order is residing in, or is intending to reside in, the relevant participating State, consent to the transfer is not required from that parent or other person or from any other parent or other person who is granted contact with the child under the order who consents to the child residing in that State.

5 Secretary to have regard to certain matters

In determining whether to transfer a child protection order to a participating State under this Division, the Secretary must—

Sch. 1 Pt 2 cl. 5(a) amended by No. 17/2023 s. 13.

(a) as far as possible, make decisions having regard to the principles in Parts 1.1B and 1.2 of Chapter 1 and the following principles—

(i) the best interests of the child must be given paramount importance;

(ii) the child (except if his or her participation would be detrimental to his or her safety or wellbeing) must be encouraged and (through consultation and discussion) given adequate opportunity to participate fully in the decision-making process and must be given a copy of any proposed case plan relating to the transfer and sufficient notice of any meeting proposed to be held;

(iii) the family of the child (except if its participation would be detrimental to the safety or wellbeing of the child) must be encouraged and (through consultation and discussion) given adequate opportunity to participate fully in the decision-making process and must be given a copy of any proposed case plan relating to the transfer and sufficient notice of any meeting proposed to be held; and

(b) have regard to whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and

(c) have regard to the fact that it is preferable that a child is subject to a child protection order made under the child welfare law of the State where the child resides; and

Sch. 1 Pt 2 cl. 5(d) amended by No. 68/2009 s. 87(1)(a).

(d) have regard to any sentence under any Act, other than a fine, in force in respect of the child or any criminal proceeding pending against the child in any court.

6 Notification to child and his or her parents

(1) If the Secretary has decided to transfer a child protection order to a participating State under this Division, the Secretary must cause—

(a) the parent of the child who is the subject of the order; and

(b) if the child is of or above the age of 7 years, the child—

to be served with a notice of the decision as soon as practicable but in any event no later than 3 working days after making it.

(2) A notice under subclause (1) served on a parent of the child must, in addition to providing notice of the decision, inform the parent that—

(a) the decision may be reviewed on its merits by the Victorian Civil and Administrative Tribunal or on certain grounds by the Supreme Court; and

(b) the application for review must be made, and the relevant documents served on the Secretary, within 28 days after the date of the decision or, in the case of an application to the Victorian Civil and Administrative Tribunal, the later day on which a statement of reasons for the decision is given or refused to be given under the Victorian Civil and Administrative Tribunal Act 1998 ; and

(c) a request under section 45(1) of the Victorian Civil and Administrative Tribunal Act 1998 for a written statement of reasons for the decision must be made in writing within 28 days after the date of the decision; and

(d) the parent may make an application for review and provide details of how such an application may be made.

(3) A notice under subclause (1) served on the child must, in addition to providing notice of the decision, inform the child that—

(a) the child may seek legal advice in relation to the decision; and

(b) the child may oppose the decision by writing, or by a legal practitioner writing on his or her behalf, to the employee nominated in the notice within 28 days after service of the notice and stating the fact that the child opposes the decision; and

(c) if notice of opposition is given to the nominated employee in accordance with paragraph (b), the order cannot be transferred by the Secretary under this Division.

(4) The Secretary must make all reasonable efforts to ensure that a child on whom a notice is served under subclause (1) has an opportunity to seek legal advice in relation to the decision to transfer the child protection order.

(5) Service of a notice on a person is not required under subclause (1) if it cannot be effected after making all reasonable efforts.

7 Limited period for judicial review of decision

(1) A proceeding in the Supreme Court for judicial review of a decision of the Secretary to transfer a child protection order to a participating State under this Division must be instituted, and written notice of it must be served on the Secretary, within 28 days after the date of the decision of the Secretary.

(2) Subject to subclause (1), a proceeding referred to in that subclause must be brought in accordance with the rules of the Supreme Court.

(3) The Supreme Court cannot extend the time limit fixed by subclause (1).

(4) The institution of a proceeding referred to in subclause (1) and service of written notice of it on the Secretary stays the operation of the decision pending the determination of the proceeding.

Division 2—Judicial transfers

8 When Court may make order under this Division

The Court may make an order under this Division transferring a child protection order to a participating State if—

(a) an application for the making of the order is made by the Secretary; and

(b) the child protection order is not subject to an appeal to the Supreme Court or the County Court; and

(c) the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the child protection order to be transferred.

9 Service of application

The Secretary must as soon as possible cause a copy of an application for an order transferring a child protection order to a participating State to be sent by post or given to any person to whom he or she would have been required under Chapter 4 of this Act to send or give a copy of an application made by him or her for the variation of the order sought to be transferred.

10 Type of order

(1) If the Court determines to transfer a child protection order (the home order ) under this Division, the proposed terms of the child protection order to be transferred (the proposed interstate order ) must be terms that could be the terms of a child protection order made under the child welfare law of the participating State and that the Court believes to be—

(a) to the same or a similar effect as the terms of the home order; or

(b) otherwise in the best interests of the child.

(2) The Court may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State.

(3) In determining whether an order to the same or a similar effect as the home order could be made under the child welfare law of a participating State, the Court must not take into account the period for which it is possible to make such an order in that State.

(4) The Court must determine, and specify in the proposed interstate order, the period for which it is to remain in force.

(5) The period must be any period that is possible for a child protection order of the type of the proposed interstate order under the child welfare law of the participating State commencing on, and including, the date of its registration in that State and that the Court considers to be appropriate.

11 Court to have regard to certain matters

(1) The Court must not make an order under this Division unless it has received and considered a report by the Secretary that contains the matters required by section 558 to be included in a disposition report.

(2) In determining what order to make on an application under this Division the Court must have regard to—

(a) whether the order is in the best interests of the child; and

(b) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and

(c) the fact that it is preferable that a child is subject to a child protection order made under the child welfare law of the State where the child resides; and

(d) any information given to the Court by the Secretary under clause 12.

(3) Section 559 applies to a report referred to in subclause (1) as if it were a disposition report required under section 557(1).

Sch. 1 Pt 2 cl. 12 amended by No. 68/2009 s. 87(1)(b).

12 Duty of the Secretary to inform the Court of certain matters

If the Secretary is aware that—

Sch. 1 Pt 2 cl. 12(a) amended by No. 68/2009 s. 87(1)(b).

(a) a sentence under any Act, other than a fine, is in force in respect of the child who is the subject of an application under this Division; or

(b) a criminal proceeding is pending against that child in any court—

the Secretary must, as soon as possible, inform the Court of that fact and of the details of the sentence or pending criminal proceeding.

13 Appeals

(1) A party to an application for an order under this Division or the Attorney-General, if he or she appeared or was represented in the proceeding under section 215(2), may appeal to the Supreme Court, on a question of law, from a final order made in that proceeding transferring, or refusing to transfer, a child protection order to a participating State.

(2) An appeal under subclause (1)—

(a) must be instituted, and (except where instituted by the Secretary) written notice of it must be served on the Secretary, within 10 working days after the day on which the order complained of was made; and

(b) operates as a stay of an order transferring the child protection order to a participating State.

(3) Subject to subclause (2), an appeal under subclause (1) must be brought in accordance with the rules of the Supreme Court.

(4) The Supreme Court cannot extend the time limit fixed by subclause (2)(a).

(5) The Supreme Court must hear and determine the appeal as expeditiously as possible.

(6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.

(7) An order made by the Supreme Court on an appeal under subclause (1), other than an order remitting the case for re‑hearing to the Court, may be enforced as an order of the Supreme Court.

(8) Pending the hearing of the appeal the Supreme Court may—

(a) make any interim accommodation order that the Children's Court has jurisdiction to make; or

(b) make any variation of the child protection order that the Children's Court would have jurisdiction to make on an application made under Chapter 4 of this Act.

(9) Section 330 applies to an appeal under subclause (1) as if—

(a) a reference to section 328 or 329 were a reference to this clause; and

(b) references to the County Court were omitted.

Part 3—Transfer of child protection proceedings

14 When Court may make order under this Part

(1) The Court may make an order under this Part transferring a child protection proceeding pending in the Court to the Children's Court in a participating State if—

(a) an application for the making of the order is made by the Secretary; and

(b) the relevant interstate officer has consented in writing to the transfer.

(2) The proceeding is discontinued in the Court on the registration in the Children's Court in the participating State in accordance with the interstate law of an order referred to in subclause (1).

15 Service of application

The Secretary must as soon as possible cause a copy of an application for an order transferring a child protection proceeding to the Children's Court in a participating State to be served on—

(a) the child's parent or other person with whom the child is living; and

(b) if the child is of or above the age of 12 years, the child.

16 Court to have regard to certain matters

(1) In determining whether to make an order transferring a proceeding under this Part the Court must have regard to—

(a) whether the order is in the best interests of the child; and

(b) whether any other proceedings relating to the child are pending, or have previously been heard and determined, under the child welfare law in the participating State; and

(d) the place of residence, or likely place of residence, of the child, his or her parents and any other people who are significant to the child; and

(e) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and

(f) the fact that it is preferable that a child is subject to a child protection order made under the child welfare law of the State where the child resides; and

(g) any information given to the Court by the Secretary under subclause (2).

Sch. 1 Pt 3 cl. 16(2) amended by No. 68/2009 s. 87(1)(c).

(2) If the Secretary is aware that—

Sch. 1 Pt 3 cl. 16(2)(a) amended by No. 68/2009 s. 87(1)(c).

(a) a sentence under any Act, other than a fine, is in force in respect of the child who is the subject of the proceeding to which an application under this Part relates; or

(b) a criminal proceeding is pending against that child in any court—

the Secretary must, as soon as possible, inform the Court of that fact and of the details of the sentence or pending criminal proceeding.

17 Interim order

(1) If the Court makes an order transferring a proceeding under this Part, the Court may also make an interim order.

(2) An interim order—

(a) may release the child or place the child into the care of any person, subject to any conditions that the Court considers to be appropriate; and

(b) may give responsibility for the supervision of the child to the interstate officer in the participating State or any other person in that State to whom responsibility for the supervision of a child could be given under the child welfare law of that State; and

(3) The Children's Court in the participating State may revoke an interim order in accordance with the relevant interstate law.

18 Appeals

(1) A party to an application for an order under this Part or the Attorney-General, if he or she appeared or was represented in the proceeding under section 215(2), may appeal to the Supreme Court, on a question of law, from a final order made in that proceeding transferring, or refusing to transfer, a child protection proceeding to the Children's Court in a participating State.

(2) An appeal under subclause (1)—

(a) must be instituted, and (except where instituted by the Secretary) written notice of it must be served on the Secretary, within 3 working days after the day on which the order complained of was made; and

(b) operates as a stay of an order transferring the child protection proceeding to a participating State but not of any interim order made at the same time as the order.

(3) Subject to subclause (2), an appeal under subclause (1) must be brought in accordance with the rules of the Supreme Court.

(4) The Supreme Court cannot extend the time limit fixed by subclause (2)(a).

(5) The Supreme Court must hear and determine the appeal as expeditiously as possible.

(7) An order made by the Supreme Court on an appeal under subclause (1), other than an order remitting the case for re‑hearing to the Court, may be enforced as an order of the Supreme Court.

(8) The Supreme Court may—

(a) make an order staying the operation of any interim order made at the same time as the order that is the subject of the appeal or may, by order, vary or revoke, or extend the period of, that interim order; and

(b) make any interim accommodation order pending the hearing of the appeal that the Children's Court has jurisdiction to make.

(9) Section 330 applies to an appeal under subclause (1) as if—

(a) a reference to section 328 or 329 were a reference to this clause; and

(b) references to the County Court were omitted.

Part 4—Registration

19 Filing and registration of interstate documents

(1) Subject to subclause (3), the Secretary must as soon as possible file in the Court for registration a copy of a child protection order transferred to Victoria under an interstate law.

(2) Subject to subclause (3), the Secretary must as soon as possible file in the Court for registration a copy of an order under an interstate law to transfer a child protection proceeding to Victoria, together with a copy of any interim order made in relation to that order.

(3) The Secretary must not file in the Court a copy of a child protection order or of an order to transfer a child protection proceeding if—

(a) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding (as the case requires) is subject to appeal or review or a stay; or

(b) the time for instituting an appeal or seeking a review has not expired—

under the interstate law.

20 Notification by appropriate registrar

The appropriate registrar must immediately notify the appropriate officer of the Children's Court in the sending State and the interstate officer in that State of—

(a) the registration of any document filed under clause 19; or

(b) the revocation under clause 22 of the registration of any document so filed.

21 Effect of registration

(1) A child protection order registered in the Court under this Part must be taken for all purposes (except for the purposes of appeal) to be a protection order of the relevant type made by the Court on the day on which it is registered and it may be varied or revoked, or the period of the order extended, or a breach of it dealt with, under Chapter 4 of this Act accordingly.

(2) An interim order registered in the Court under this Part must be taken for all purposes (except for the purposes of appeal) to be an interim accommodation order made by the Court on the day on which it is registered, even if it includes terms that could not be terms of an interim accommodation order.

(3) An interim order registered in the Court under this Part cannot be varied, or the period of the order extended, under Division 5 of Part 4.8 of this Act but nothing in this subclause prevents the Court from making a new interim accommodation order under section 270 (without being limited to the circumstances for an application for a new order set out in that section) and revoking the interim order.

(4) Despite subclause (3), a breach of an interim order registered in the Court under this Part may be dealt with under Chapter 4 of this Act in the same way as a breach of any other interim accommodation order.

(5) If an order under an interstate law to transfer a child protection proceeding to Victoria is registered under this Part, the proceeding must be taken to have been commenced in the Court on the day on which the order is registered.

22 Revocation of registration

(1) An application for the revocation of the registration of any document filed under clause 19 may be made to the Court by—

(a) the Secretary; or

(b) the child concerned; or

(d) a party to the proceeding in the Children's Court in the sending State in which the decision to transfer the order or proceeding (as the case requires) was made.

(2) The appropriate registrar must cause a copy of an application under subclause (1) to be sent by post or given as soon as possible to—

(a) the relevant interstate officer; and

(b) any person by whom such an application could have been made.

(3) The Court may only revoke the registration of a document filed under clause 19 if satisfied that it was inappropriately registered because—

(a) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding (as the case requires) was at the time of registration subject to appeal or review or a stay; or

(b) the time for instituting an appeal or seeking a review had not expired—

under the interstate law.

(4) The appropriate registrar must cause any document filed in the Court under clause 19 to be sent to the Children's Court in the sending State if the registration of the document is revoked.

(5) The revocation of the registration of a document does not prevent the later re-registration of that document.

Part 5—Miscellaneous

23 Effect of registration of transferred order

(1) On an order being registered in a participating State under an interstate law, the child protection order made by the Court under Chapter 4 of this Act ceases to have effect.

(2) Despite subclause (1), an order that has ceased to have effect by force of that subclause is revived if the registration of the child protection order transferred from Victoria is revoked in the participating State under the interstate law.

(3) The period for which a child protection order is revived is the balance of the period for which it would have remained in force but for the registration of the transferred order.

24 Transfer of Court file

The appropriate registrar must cause all documents filed in the Court in connection with a child protection proceeding, and an extract from any part of the court register that relates to a child protection proceeding, to be sent to the Children's Court in a participating State if—

(a) the child protection order or proceeding is transferred to the participating State; and

(b) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding (as the case requires) is not subject to appeal or review or a stay; and

under this Schedule.

25 Hearing and determination of transferred proceeding

In hearing and determining a child protection proceeding transferred to the Court under an interstate law, the Court—

(a) is not bound by any finding of fact made in the proceeding in the Children's Court in the sending State before its transfer; and

(b) may have regard to the transcript of, or any evidence adduced in, the proceeding referred to in paragraph (a).

26 Disclosure of information

(1) Despite anything to the contrary in this Act, the Secretary may disclose to an interstate officer any information that has come to his or her notice in the performance of duties or exercise of powers under this Act if the Secretary considers that it is necessary to do so to enable the interstate officer to perform duties or exercise powers under a child welfare law or an interstate law.

(2) Any information disclosed to the Secretary under a provision of a child welfare law or an interstate law that substantially corresponds to subclause (1) must be taken for the purposes of any provision of this Act relating to the disclosure of information to have been information given directly to a protective intervener in Victoria instead of to an interstate officer.

27 Discretion of Secretary to consent to transfer

(1) If, under an interstate law, there is a proposal to transfer a child protection order to Victoria, the Secretary may consent or refuse to consent to the transfer and the proposed terms of the child protection order to be transferred.

(2) If, under an interstate law, there is a proposal to transfer a child protection proceeding to the Children's Court in Victoria, the Secretary may consent or refuse to consent to the transfer.

28 Evidence of consent of relevant interstate officer

A document, or a copy of a document, purporting—

(a) to be the written consent of the relevant interstate officer to—

(i) the transfer of a child protection order to a participating State and to the proposed terms of the child protection order to be transferred; or

(ii) the transfer of a child protection proceeding pending in the Court to the Children's Court in a participating State; and

(b) to be signed by the relevant interstate officer or his or her delegate—

is admissible in evidence in any proceeding under this Schedule and, in the absence of evidence to the contrary, is proof that consent in the terms appearing in the document was duly given by the relevant interstate officer.

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