Children, Youth and Families Amendment Act 2013

Children, Youth and Families Amendment Act 2013

No. 52 of 2013

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments to Children, Youth and Families Act 2005

3Principal Act

4Definitions

5Best interests principles

6When is a child in need of protection?

7What is a case plan?

8What is a stability plan?

9Conduct of proceedings in Family Division

10New section 215A inserted

215AStandard of proof

11New section 215B inserted

215BManagement of child protection proceedings

12New section 216A inserted

216AChild not required to attend Court in Family Division

13Division heading amended

14Referral of application to dispute resolution conference

15What is a facilitative conference?

16Section 219 repealed

17Guidelines for dispute resolution conferences

18Time and place of dispute resolution conference

19Who is to attend a dispute resolution conference?

20Report to Court by convenor

21Court to consider report of convenor

22Immunity of participants

23Confidentiality of dispute resolution conferences

24Dispute resolution convenors

25Action by protective intervener

26Protective intervener may takechild in need of protection
into safe custody

27Actions on taking child into safe custody

28Making a protection application without taking child into safe custody

29Issue of search warrant if child does not appear

30New section 247A inserted

247AActions on placing child in emergency care—
therapeutic treatment application

31Therapeutic treatment (placement) order

32Proceeding on application if party does not appear

33Interim accommodation order

34Conditions of interim accommodation order

35Application for variation of interim accommodation order

36Procedure on breach of interim accommodation order

37Application for new interim accommodation order

38Custody to third party order

39Supervised custody order

40Custody to Secretary order

41Interim protection order

42Matters to be taken into account

43Breach of protection order—notice to appear

44Taking child into safe custody when notice is served

45Taking child into safe custody without notice

46Section 315 amended

47Interim protection order expires on making of interim accommodation order

48Decision of Court

49Permanent care order

50Breach of undertaking

51Breach of bond

52Bail

53Offences in relation to community service etc.

54New section 528A

528AEnforcement of costs orders made in the Family
Division

55Section 587 substituted

587Notice to be filed if child is placed in emergency
care or apprehended without warrant

56Powers of Secretary in relation to medical services and operations

57Heading to Part 8.3 substituted

58Circumstances in which child may be taken into safe custody

59Persons whose consent is required

60Statute law revision

61New sections 624 to 626 inserted

624Transitional provision—Children, Youth and
Families Amendment Act 2013

625Transitional regulation-making powers—Children, Youth and Families Amendment Act 2013

626Repeal of transitional regulation-making powers—Children, Youth and Families Amendment
Act2013

Part 3—Amendments to Family Violence Protection Act2008

62Court may close proceeding to public

63Attendance at court of author of assessment report

64Notice of appeal

65Person giving report may be required to attend hearing

66New section 147A inserted

147AJurisdiction of Children's Court to deal with applications related to child protection proceedings

67Application of Magistrates' Court Act 1989 and rules

68Application for leave to appeal under Division 9 of Part4 by vexatious litigant

69New Division 8 of Part 14 inserted

Division 8—Children, Youth and Families Amendment Act2013

225Transitional provision—Children, Youth and
Families Amendment Act 2013

Part 4—Amendments to Personal Safety Intervention Orders Act2010

70Definitions

71Registrar may provide mediation information

72Court may close proceeding to public

73Attendance at court of author of assessment report

74Who may apply to vary, revoke or extend personal safety intervention order

75Notice of appeal

76New section 104A inserted

104AJurisdiction of Children's Court to deal with
applications related to child protection proceedings

77Costs

78Application for leave to appeal under Division 11 of Part3
by vexatious litigant

79New Division 3 of Part 13 inserted

Division 3—Children, Youth and Families Amendment Act2013

197Transitional provision—Children, Youth and
Families Amendment Act 2013

Part 5—Consequential Amendments to Other
Acts

80Amendment to the Coroners Act 2008

81Amendment to Commonwealth Powers (Family LawChildren) Act 1986

Part 6—Repeal of Amending Act

82Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Children, Youth and Families Amendment Act 2013[†]

No. 52 of 2013

[Assented to 24 September 2013]

Children, Youth and Families Amendment Act 2013
No. 52 of 2013

The Parliament of Victoriaenacts:

Part 6—Repeal of Amending Act

Children, Youth and Families Amendment Act 2013
No. 52 of 2013

Part 1—Preliminary

1Purposes

The mainpurposes of this Act are—

(a)to amend the Children, Youth and Families Act 2005—

(i) to amend requirements for attendance of children at hearings in certain proceedings before the Family Division; and

(ii)toreplace the termaccesswith contact; and

(iii)toclarify the standard of proof that applies in child protection proceedings; and

(iv)toprovide further for the conduct of proceedings in the Family Division; and

(v)toreplace dispute resolution conferences with conciliation conferences in the Family Division; and

(vi)toreplacethe termsafe custodywith emergency care; and

s. 1

(vii)to provide further for certain breach proceedings under Divisions 3 and 4 of Part 5.3 of Chapter 5; and

(viii) to provide for enforcement of costs orders made by the Children's Court in proceedings in the Family Division, or under the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010; and

(b)to amend the Family Violence Protection Act 2008to give the Children's Court jurisdiction over certain applications for family violence intervention orders if there are related child protection proceedings; and

(c)to amend the Personal Safety Intervention Orders Act 2010to give the Children's Court jurisdiction over certain applications forpersonal safety intervention orders if there are related child protection proceedings; and

(d)to make necessary consequential amendments to other Acts.

2Commencement

s. 2

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 June 2014, it comes into operation on that day.

______

Part 2—Amendments to Children, Youth and Families Act 2005

3Principal Act

s. 3

See:
Act No.
96/2005.
Reprint No. 4
as at
27 March 2013
and amending
Act Nos
51/2006 and 9/2013.
LawToday:
www.
legislation.
vic.gov.au

In this Part, the Children, Youth and Families Act 2005 is called the Principal Act.

4Definitions

In section 3(1) of the Principal Act—

(a)the definition of access is repealed;

(b)the definition of safe custody is repealed;

(c)insert the following definition—

"contact (unless the context otherwise requires) means the contact of a child with a person who does not have custody of the child by way of—

(a)a visit by or to that person, including attendance for a period of time at a place other than the child's usual place of residence; or

(b)communication with that person by letter, telephone or other means—

and includes overnight contact;";

(d)insert the following definition—

"emergencycare means placement in accordance with section242(5) or247A(4);";

(e)in paragraph (b) of the definition of judicial resolution conference for "dispute resolution" substitute "conciliation";

(f) in the definition of search warrant, for "take into safe custody" substitute "place in emergency care".

5Best interests principles

s. 5

In section 10(3)(k) of the Principal Act, for "access" substitute "contact".

6When is a child in need of protection?

After section 162(2) of the Principal Act insert—

"(3)For the purposes of subsection (1)(c), (d), (e) and(f)—

(a)the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;

(b)the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.".

7What is a case plan?

In section 166(2)(b) of the Principal Act, for "access to" substitute "contact with".

8What is a stability plan?

In section 169(3)(d) of the Principal Act, for "access by the child to" substitute "contact by the child with".

9Conduct of proceedings in Family Division

Section 215(1)(c) of the Principal Act is repealed.

10New section215Ainserted

s. 9

After section 215 of the Principal Act insert—

"215A Standard of proof

The standard of proof of any fact in an application under this Act in the Family Division is the balance of probabilities.".

11New section 215Binserted

Before section 216 of the Principal Act insert—

"215B Management of child protection proceedings

(1)Without limiting Part 1.2 or section 215(1), in any proceeding before the Family Division under this Act, the Court may—

(a)consider the needs of the child and the impact that the proceeding may have on the child;

(b)conduct proceedings in a manner that promotes cooperative relationships between the parties;

(c)ask any person connected to the proceeding whether that person considers that—

(i) the child has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence;

(ii)he or she or any other person connected to the proceeding has been, or is at risk of being subjected to family violence;

(d)actively direct, control and manage proceedings;

(e) narrow the issues in dispute;

(f) determine the order in which the issues are decided;

(g) give directions or make orders about the timing of steps that are to be taken in proceedings;

(h) in deciding whether a particular step is to be taken, consider whether the likely benefits justify the costs of taking it;

(i) make appropriate use of technology, such as videoconferencing;

(j) deal with as many aspects of the matter on a single occasion as possible;

(k) where possible, deal with the matter without requiring the parties attend Court;

(l) do any other thing that the Court thinks fit.

(2)In this section—

family violence has the meaning given in the Family Violence Protection Act 2008.".

12New section 216A inserted

s. 12

After section 216 of the Principal Act insert—

"216A Child not required to attend Court in Family Division

In anyproceeding before the Family Division under this Act, a child is not required to attend before the Court unless—

(a)the child expresses a wish to attend; or

(b) the Court orders that the child attend; or

(c)this Act requires that the child attend.

Note

A child is not required to attend the hearing of a proceeding only because documents have been served on the child under this Act.".

13Division heading amended

s. 13

In the heading to Division 2 of Part 4.7 of Chapter4 of the Principal Act, for "Dispute resolution" substitute "Conciliation".

14Referral of application to dispute resolution conference

(1)In the heading to section 217 of the Principal Act, for "dispute resolution" substitute "conciliation".

(2)In section 217(1) and (2) of the Principal Act, for "dispute resolution" substitute "conciliation".

(3)Section 217(3) of the Principal Act isrepealed.

15What is a facilitative conference?

(1)In the heading to section 218 of the Principal Act, for "facilitative" substitute "conciliation".

(2)In section 218(1) and (2) of the Principal Act, for "facilitative" substitute "conciliation".

16Section 219 repealed

Section 219 of the Principal Act is repealed.

17Guidelines for dispute resolution conferences

(1)In the heading to section 220 of the Principal Act, for "dispute resolution" substitute "conciliation".

(2)In section 220 of the Principal Act, for "dispute resolution" substitute "conciliation".

18Time and place of dispute resolution conference

s. 18

(1)In the heading to section 221 of the Principal Act, for "dispute resolution" substitute "conciliation".

(2)In section 221 of the Principal Act, for "dispute resolution" substitute "conciliation".

19Who is to attend a dispute resolution conference?

(1)In the heading to section 222 of the Principal Act, for "dispute resolution" substitute "conciliation".

(2)In section 222 of the Principal Act, for "dispute resolution" (wherever occurring) substitute "conciliation".

(3)After section 222(6) of the Principal Act insert—

"(7)A convenor or the convenors of a conciliation conference may—

(a)permit any other person to attend the conference; and

(b)specify whether, or in what manner, the person may participate in the conference; and

(c)require the person to leave the conference at any time; and

(d)require that any other specified person not attend the conference.".

20Report to Court by convenor

(1)In section 223(1) of the Principal Act, for "facilitative" substitute "conciliation".

(2)Section 223(2) of the Principal Act is repealed.

21Court to consider report of convenor

In section 224 of the Principal Act, for "dispute resolution" substitute "conciliation".

22Immunity of participants

s. 22

In section 225 of the Principal Act, for "dispute resolution" (wherever occurring) substitute "conciliation".

23Confidentiality of dispute resolution conferences

(1)In the heading to section 226 of the Principal Act, for "dispute resolution" substitute "conciliation".

(2)In section 226 of the Principal Act, for "dispute resolution" (wherever occurring) substitute "conciliation".

24Dispute resolution convenors

In the heading to section 227 of the Principal Act, for "Dispute resolution" substitute "Conciliation".

25Action by protective intervener

(1)For section 240(1)(a) of the Principal Actsubstitute—

"(a)serve a notice under section 243 stating that a protection application in respect of the child will be made to the Court; or".

(2) In section 240(1)(b) of the Principal Act, for "take the child into safe custody" (wherever occurring) substitute "place the child in emergency care".

26Protective intervener may take child in need of protection into safe custody

(1)For the heading to section 241 of the Principal Act substitute—

"Protective intervener may place child in need of protection in emergency care".

(2)In section 241(1) of the Principal Act—

(a)in paragraph (a), for "take the child into safe custody" (where twice occurring) substitute "place the child in emergency care"; and

(b)in paragraph (b), for "taken into safe custody" substitute "placed in emergency care".

27Actions on taking child into safe custody

s. 27

(1)For the heading to section 242 of the Principal Act substitute—

"Actions on placing child in emergency care".

(2)In section 242(1) of the Principal Act—

(a)for "taking a child into safe custody" substitute "placing a child in emergency care"; and

(b)for "taking of children into safe custody" substitute "placing of children in emergency care".

(3)For section 242(2), (3) and (4) of the Principal Act substitute—

"(2) If a child has been placed in emergency care under section 241, the Court must hear an application for an interim accommodation order in respect of the child as soon as practicable and in any event within one working day after the child was placed in emergency care.

(3) Unless the Court hears an application for an interim accommodation order within 24hours after the child was placed in emergency care, a bail justice must hear an application for an interim accommodation order in respect of the child as soon as possible within that period of 24hours.".

(4)In section 242(5) of the Principal Act, for "Until a child taken into safe custody under section 241 is brought before the Court or a bail justice for the making of an interim accommodation order, the child" substitute "Until an application for an interim accommodation order is made to the Court or a bail justice, a child placed in emergency care under section241".

28Making a protection application without taking child into safe custody

s. 28

(1)In the heading to section 243 of the Principal Act, for "taking child into safe custody" substitute "placing child in emergency care".

(2)For section 243(1) of the Principal Act substitute—

"(1) If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, he or she may serve a notice stating that a protection application in respect of the child will be made to the Court on a day and at a time specified in the notice.".

(3) For section 243(3) of the Principal Actsubstitute—

"(3)If the Court orders that the child appear before the Court for the hearing of the protection application and the child does not appear, the Court may, if satisfied that the order has come to the attention of the child's parent or, if the child is of or above the age of 12 years, the child and, if practicable, the child's parent, issue a search warrant for the purpose of having the child placed in emergency care.".

29Issue of search warrant if child does not appear

s. 29

(1)In section 247(1) of the Principal Act, for "taken into safe custody"substitute "placed in emergency care".

(2)For section 247(2) of the Principal Act substitute—

"(2)A search warrant issued by the Court under subsection (1)—

(a)may only be directed to a named member of the police force or generally all members of the police force; and

(b)may be endorsed by the person issuing it with a direction that the child be released on an interim accommodation order of the type referred to in section 263(1)(a) or(b) as specified in the endorsement.".

30New section 247A inserted

After section 247 of the Principal Act insert—

"247A Actions on placing child in emergency care—therapeutic treatment application

(1)On the placement in emergency care on a search warrant under section 247(1) of a child who is the subject of a therapeutic treatment application, a protective intervener must give to—

(a)the child's parents, unless they cannot be found after reasonable enquiries; and

(b)the child, if he or she is of or above the age of 12 years—

a written statement containing the prescribed information relating to the placing of children in emergency care.

(2)Subject to subsection (4), a child placed in emergency care on a search warrant must be brought before the Court for the hearing of an application for an interim accommodation order as soon as practicable and, in any event, within one working day after the child was placed in emergency care.

(3)Unless a child is brought before the Court under subsection (2) within 24 hours after the child was placed in emergency care, he or she must be brought before a bail justice as soon as possible within that period of 24hours for the hearing of an application for an interim accommodation order.

(4) Until a child placed in emergency care on a search warrant is brought before the Court or a bail justice for the making of an interim accommodation order, the child may only be placed—

(a)inan out of home care service; or

(b)if there is a substantial and immediate risk of harm to the child, in a secure welfare service; or

(c)in other accommodation approved by the Secretary in accordance with the prescribed criteria (if any).".

31Therapeutic treatment (placement) order

s. 31

In section 253(c)(i) of the Principal Act, for "access by" substitute "contact with".

32Proceeding on application if party does not appear

For section 261(1) of the Principal Act substitute—

"(1)If the Court orders that the child appear before the Court for the hearing of the irreconcilable difference application, and the child does not appear, the Court may issue a search warrant for the purpose of having the child placed in emergency care.".

33Interim accommodation order

s. 33

In section 262(1) of the Principal Act—

(a)in paragraph (a), for "taken into safe custody" substitute "placed in emergency care";

(b)in paragraph (c), for "taken into safe custody" substitute "placed in emergency care";

(c)in paragraph (j), for "taken into safe custody"substitute "placed in emergency care".

34Conditions of interim accommodation order

In section 263(8) of the Principal Act, for "access of a parent or other person to" substitute "contact with a parent or other person by".

35Application for variation of interim accommodation order

(1) For section 268(3) of the Principal Act substitute—

"(3)On an application under subsection (2) by a protective intervener, he or she may serve—

(a)unless paragraph (b) applies, a notice stating that an application for variation of the conditions included in the interim accommodation order will be made to the Court on a day and at a time specified in the notice; or