children, youth and families amendment act 2013file/13-052a.docx · web viewchildren, youth and...

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

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 3

PART 2—AMENDMENTS TO CHILDREN, YOUTH AND FAMILIES ACT 2005 4

3 Principal Act 44 Definitions 45 Best interests principles 56 When is a child in need of protection? 57 What is a case plan? 58 What is a stability plan? 59 Conduct of proceedings in Family Division 610 New section 215A inserted 6

215A Standard of proof 611 New section 215B inserted 6

215B Management of child protection proceedings 612 New section 216A inserted 7

216A Child not required to attend Court in Family Division 713 Division heading amended 814 Referral of application to dispute resolution conference 815 What is a facilitative conference? 816 Section 219 repealed 817 Guidelines for dispute resolution conferences 818 Time and place of dispute resolution conference 919 Who is to attend a dispute resolution conference? 920 Report to Court by convenor 921 Court to consider report of convenor 922 Immunity of participants 1023 Confidentiality of dispute resolution conferences 1024 Dispute resolution convenors 1025 Action by protective intervener 1026 Protective intervener may take child in need of protection

into safe custody 1027 Actions on taking child into safe custody 11

1

28 Making a protection application without taking child into safe custody 12

29 Issue of search warrant if child does not appear 1330 New section 247A inserted 13

247A Actions on placing child in emergency care—therapeutic treatment application 13

31 Therapeutic treatment (placement) order 1432 Proceeding on application if party does not appear 1433 Interim accommodation order 1534 Conditions of interim accommodation order 1535 Application for variation of interim accommodation order 1536 Procedure on breach of interim accommodation order 1737 Application for new interim accommodation order 1938 Custody to third party order 2139 Supervised custody order 2140 Custody to Secretary order 2241 Interim protection order 2242 Matters to be taken into account 2343 Breach of protection order—notice to appear 2344 Taking child into safe custody when notice is served 2345 Taking child into safe custody without notice 2446 Section 315 amended 2447 Interim protection order expires on making of interim

accommodation order 2448 Decision of Court 2449 Permanent care order 2550 Breach of undertaking 2551 Breach of bond 2552 Bail 2553 Offences in relation to community service etc. 2554 New section 528A 25

528A Enforcement of costs orders made in the Family Division 25

55 Section 587 substituted 26587 Notice to be filed if child is placed in emergency

care or apprehended without warrant 2656 Powers of Secretary in relation to medical services and

operations 2757 Heading to Part 8.3 substituted 2758 Circumstances in which child may be taken into safe custody 2759 Persons whose consent is required 2760 Statute law revision 2861 New sections 624 to 626 inserted 28

624 Transitional provision—Children, Youth and Families Amendment Act 2013 28

625 Transitional regulation-making powers—Children, Youth and Families Amendment Act 2013 31

626 Repeal of transitional regulation-making powers—Children, Youth and Families Amendment Act 2013 32

PART 3—AMENDMENTS TO FAMILY VIOLENCE PROTECTION ACT 2008 33

62 Court may close proceeding to public 3363 Attendance at court of author of assessment report 3364 Notice of appeal 3365 Person giving report may be required to attend hearing 3466 New section 147A inserted 34

147A Jurisdiction of Children's Court to deal with applications related to child protection proceedings 34

67 Application of Magistrates' Court Act 1989 and rules 3568 Application for leave to appeal under Division 9 of Part 4 by

vexatious litigant 3569 New Division 8 of Part 14 inserted 36

Division 8—Children, Youth and Families Amendment Act 2013 36


PART 4—AMENDMENTS TO PERSONAL SAFETY INTERVENTION ORDERS ACT 2010 37

70 Definitions 3771 Registrar may provide mediation information 3772 Court may close proceeding to public 3773 Attendance at court of author of assessment report 3774 Who may apply to vary, revoke or extend personal safety

intervention order 3875 Notice of appeal 3876 New section 104A inserted 38

104A Jurisdiction of Children's Court to deal with applications related to child protection proceedings 38

77 Costs 3978 Application for leave to appeal under Division 11 of Part 3

by vexatious litigant 3979 New Division 3 of Part 13 inserted 40

Division 3—Children, Youth and Families Amendment Act 2013 40


PART 5—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 41

80 Amendment to the Coroners Act 2008 4181 Amendment to Commonwealth Powers (Family

Law-Children) Act 1986 41

PART 6—REPEAL OF AMENDING ACT 42

82 Repeal of amending Act 42═══════════════

ENDNOTES 43

Children, Youth and Families Amendment Act 2013†

No. 52 of 2013

[Assented to 24 September 2013]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes 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

Victoria

1

(ii) to replace the term access with contact; and

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

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

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

(vi) to replace the term safe custody with emergency care; and

(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 2008 to 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 2010 to give the Children's Court jurisdiction over certain applications for personal safety intervention orders if there are related child protection proceedings; and

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

Section Page

2

s. 1

2 Commencement

(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.

__________________

Section Page

3

s. 2

PART 2—AMENDMENTS TO CHILDREN, YOUTH AND FAMILIES ACT 2005

3 Principal Acts. 3

See:Act No.96/2005.Reprint No. 4as at27 March 2013and amendingAct Nos51/2006 and 9/2013.LawToday:www.legislation.vic.gov.au

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

4 Definitions

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—

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

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

4

(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—

"emergency care means placement in accordance with section 242(5) or 247A(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".

5 Best interests principles

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

6 When 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;

s. 5Part 2—Amendments to Children, Youth and Families Act 2005


5

(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.".

7 What is a case plan?

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

8 What 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".

9 Conduct of proceedings in Family Division

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

10 New section 215A inserted

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.".

11 New section 215B inserted

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;



6

(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.



7

(2) In this section—

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



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

In any proceeding 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.".

13 Division heading amended

In the heading to Division 2 of Part 4.7 of Chapter 4 of the Principal Act, for "Dispute resolution" substitute "Conciliation".

14 Referral 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 is repealed.

15 What is a facilitative conference?

s. 12s. 13Part 2—Amendments to Children, Youth and Families Act 2005


8

(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".

16 Section 219 repealed

Section 219 of the Principal Act is repealed.

17 Guidelines for dispute resolution conferences


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

18 Time and place of dispute resolution conference


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

19 Who is to attend a dispute resolution conference?


(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



9

(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.".

20 Report 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.

21 Court to consider report of convenor

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

22 Immunity of participants

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

23 Confidentiality of dispute resolution conferences


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

24 Dispute resolution convenors

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

25 Action by protective intervener

(1) For section 240(1)(a) of the Principal Act substitute—



10

"(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".

26 Protective 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".

27 Actions on taking child into safe custody


"Actions on placing child in emergency care".


(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".



11

(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 24 hours 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 24 hours.".

(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 section 241".

28 Making a protection application without taking child into safe custody

(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



12

on a day and at a time specified in the notice.".


"(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.".

29 Issue of search warrant if child does not appear

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


"(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.".




13


"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 24 hours 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) in an out of home care service; or



14

(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).".

31 Therapeutic treatment (placement) order

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

32 Proceeding 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.".

33 Interim accommodation order

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".

34 Conditions 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".



15

35 Application for variation of interim accommodation order


"(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

(b) if the child is the subject of an interim accommodation order made under section 262(1)(c), a notice directing—

(i) the child to appear before the Court; and

(ii) the parent or other person with whom the child is living to produce the child before the Court.".


(a) after "does not appear before the Court" insert ", in the case of a notice under subsection (3)(a), if ordered to do so by the Court or, in the case of a notice under subsection (3)(b),";

(b) in paragraph (a), for "take the child into safe custody" substitute "place the child in emergency care";

(c) in paragraph (b)—



16

(i) after "if satisfied that the" insert "order or"; and

(ii) for "taken into safe custody" substitute "placed in emergency care".


"(6) Sections 241 and 242 apply, or if the child is the subject of an interim accommodation order made under section 262(1)(c) sections 247(2) and 247A apply, with any necessary modifications to—

(a) the placing of a child in emergency care (with or without a warrant) under this section; and

(b) the issue and execution of a search warrant under this section.".


"(8) If the child is not required to appear before the Court on the hearing of an application under this section, the Court may hear and determine the application in the absence of the child.".

36 Procedure on breach of interim accommodation order


"(1) If a protective intervener has reasonable grounds for believing that an interim accommodation order or any condition of an interim accommodation order has not been, or is not being, complied with, he or she may serve—

(a) unless paragraph (b) applies, a notice stating that an application for an order



17

under subsection (7) will be made to the Court on a day and at a time specified in the notice; or





(a) after "does not appear before the Court" insert ", in the case of a notice under subsection (1)(a), if ordered to do so by the Court or, in the case of a notice under subsection (1)(b),"; and

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


(i) after "if satisfied that the" insert "order or"; and

(ii) for "taken into safe custody" substitute "placed in emergency care".


(a) for "take the child into safe custody" substitute "place the child in emergency care"; and



18

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


"(5) As soon as possible after a child is placed in emergency care under subsection (4) and in any event within 24 hours after that placement—

(a) unless paragraph (b) applies, the application for an order under subsection (7) must be made to the Court or a bail justice; or

(b) if the child is the subject of an interim accommodation order made under section 262(1)(c), the child must be brought before the Court or a bail justice.".






"(8) If the child is not required to appear before the Court on the hearing of an application



19

under this section, the Court may hear and determine the application in the absence of the child.".

37 Application for new interim accommodation order


"(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 a new interim accommodation order will be made to the Court on a day and at a time specified in the notice; or





(a) after "does not appear before the Court" insert ", in the case of a notice under subsection (3)(a), if ordered to do so by the Court or, in the case of a notice under subsection (3)(b),";

(b) in paragraph (a), for "take the child into safe custody" substitute "place the child in emergency care";


(i) for "taken into safe custody" substitute "placed in emergency care"; and



20

(ii) after "if the Court is satisfied that the" insert "order or".

(3) In section 270(6)(a) of the Principal Act, for "take the child into safe custody" substitute "place the child in emergency care".






"(8) As soon as possible after a child is placed in emergency care under subsection (6) and in any event within 24 hours after that placement—

(a) unless paragraph (b) applies, the application for a new interim accommodation order must be made to the Court or a bail justice; or

(b) if the child is the subject of an interim accommodation order made under section 262(1)(c), the child must be brought before the Court or a bail justice.".




21

"(9A) If the child is not required to appear before the Court on the hearing of an application under this section, the Court may hear and determine the application in the absence of the child.".

38 Custody to third party order

In section 283(1)(e)(i) of the Principal Act, for "access by" substitute "contact with".

39 Supervised custody order

In section 284(1)(e)(i) of the Principal Act, for "access by" substitute "contact with".

40 Custody to Secretary order

In section 287(1)(d)(i) of the Principal Act, for "access by" substitute "contact with".

41 Interim protection order

(1) In section 291(3)(d) of the Principal Act, before "must require" insert "subject to subsection (3A),".


"(3A) An interim protection order must not require a child to appear before the Court unless the Court considers it necessary for the child to appear.".

(3) In section 291(3)(f) of the Principal Act, for "access by" substitute "contact with".


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



22

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

(5) In section 291(5) of the Principal Act, for "the taking of a child into safe custody" substitute "the placing of a child in emergency care".

(6) In section 291(6) of the Principal Act, for "On the child appearing or being brought before the Court under this section" substitute "On the hearing date specified in the order or a notice under subsection (3)(d) or, if the child has been placed in emergency care under subsection (4) on further hearing of the matter".


"(7) If the child is not required to appear before the Court under this section, the Court may make or refuse to make a further protection order under subsection (6) in the absence of the child.".

42 Matters to be taken into account

In section 295(3)(a) of the Principal Act, for "access" substitute "contact".

43 Breach of protection order—notice to appear

(1) In the heading to section 312 of the Principal Act, for "to appear" substitute "of application".

(2) In section 312(1) of the Principal Act, for the words and expressions commencing "the Secretary may by notice direct" and ending at the end of the subsection substitute "the Secretary may serve a notice stating that an application will be made to the Court on a day and at a time specified in the notice for an order under section



23

318(2) confirming, varying or revoking the protection order.".

44 Taking child into safe custody when notice is served


"Placing child in emergency care when notice is served".

(2) In section 313 of the Principal Act—

(a) for "at the time stated in the notice" substitute "if ordered to do so by the Court"; and

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


(i) for "notice" substitute "order"; and

(ii) for "under" substitute "within the meaning of"; and

(iii) for "taken into safe custody" substitute "placed in emergency care".

45 Taking child into safe custody without notice


"Placing child in emergency care without notice".

(2) In section 314(2) of the Principal Act, for "take the child into safe custody" substitute "place the child in emergency care".

46 Section 315 amended




24

"Requirements when placing child in emergency care".

(2) In section 315 of the Principal Act, for "taking of a child into safe custody" substitute "placing of a child in emergency care".

47 Interim protection order expires on making of interim accommodation order

In section 317(1) of the Principal Act, for "brought before the Court" substitute "the subject of the application".

48 Decision of Court

In section 318(1) of the Principal Act, for "On the child being brought before the Court under this Division, the Court may make an order under subsection (2)" substitute "On an application for an order under subsection (2), the Court may make an order under that subsection".

49 Permanent care order

In section 321(1)(d) and (e) of the Principal Act, for "access by" substitute "contact with".

50 Breach of undertaking

In section 366(3)(b)(i) of the Principal Act, after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".

51 Breach of bond

In section 371(3)(b)(i) of the Principal Act, after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".

52 Bail

In section 420(2) of the Principal Act, after "21" insert "clear".



25

53 Offences in relation to community service etc.

In section 497(c) of the Principal Act, for "access to" substitute "contact with".

54 New section 528A


"528A Enforcement of costs orders made in the Family Division


appropriate court means a court that has jurisdiction to enforce an amount of costs equivalent to that required to be paid under an order for costs;

order for costs means an order for costs made by the Court—

(a) in proceedings in the Family Division; or

(b) under section 154 of the Family Violence Protection Act 2008; or

(c) under section 111 of the Personal Safety Intervention Orders Act 2010.

(2) A person in whose favour an order for costs is made may enforce the order by filing in the appropriate court a copy of the order certified by the principal registrar of the Court to be a true copy.

(3) On filing, the order must be taken to be an order of the appropriate court for payment of costs and may be enforced accordingly.".

55 Section 587 substituted

For section 587 of the Principal Act substitute—



26

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

If under the provisions of this Act (other than section 172(3)) a child is placed in emergency care or apprehended without a warrant and an application is to be made to the Court in respect of the child, the person who placed the child in emergency care or apprehended the child must file with the appropriate registrar as soon as possible after doing so and before the application is made a notice setting out the grounds for placing the child in emergency care or apprehending the child.".

56 Powers of Secretary in relation to medical services and operations

(1) In section 597(1)(d) of the Principal Act, for "safe custody" substitute "emergency care".

(2) In section 597(4)(a)(i) of the Principal Act, for "taken into safe custody" substitute "placed in emergency care".

57 Heading to Part 8.3 substituted

For the heading to Part 8.3 of Chapter 8 of the Principal Act substitute—

"PART 8.3—PLACING CHILD IN EMERGENCY CARE".

58 Circumstances in which child may be taken into safe custody

(1) In the heading to section 598 of the Principal Act, for "taken into safe custody" substitute "placed in emergency care".



27


(3) In section 598(2) of the Principal Act, for "taken into safe custody" (wherever occurring) substitute "placed in emergency care".


59 Persons whose consent is required

In clause 4 of Schedule 1 to the Principal Act, for "access to" (wherever occurring) substitute "contact with".

60 Statute law revision

In section 531(2) of the Principal Act, for "by oath or affidavit" substitute "by evidence on oath, whether oral or by affidavit,".

61 New sections 624 to 626 inserted


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

(1) Part 4.1 and Division 1 of Part 4.7 as amended by sections 6 and 10 of the Children, Youth and Families Amendment Act 2013, apply to a proceeding that commences on or after the commencement of sections 6 and 10 of that Act.

(2) Part 4.1 and Division 1 of Part 4.7 of this Act as in force immediately before the commencement of sections 6 and 10 of the



28

Children, Youth and Families Amendment Act 2013 apply to a proceeding that had been commenced but not determined before the commencement of sections 6 and 10 of that Act.

(3) Each person who holds the office of convenor immediately before the commencement of section 24 of the Children, Youth and Families Amendment Act 2013, continues on and from that commencement to hold office as a convenor for the purposes of Division 2 of Part 4.7.

(4) Division 2 of Part 4.7 as amended by section 14 of the Children, Youth and Families Amendment Act 2013 applies to an application referred by the Court under section 217 of this Act on or after the commencement of section 14 of that Act.

(5) Division 2 of Part 4.7 as in force immediately before the commencement of section 14 of the Children, Youth and Families Amendment Act 2013 continues to apply to a conference that had been commenced but not completed before the commencement of section 14 of that Act.

(6) Subject to subsections (8) and (11), this Act as in force on or after the commencement of section 12 of the Children, Youth and Families Amendment Act 2013 applies to a proceeding that—

(a) commences on or after that commencement; or

(b) had been commenced but not determined before that commencement.



29

(7) If a notice under section 243, 268, 269, 270 or 312 had been served but not returned to the Court before the commencement of section 12 of the Children, Youth and Families Amendment Act 2013, on and from that commencement the notice is taken to be a notice stating that an application will be made on the date specified in the notice, unless the child is the subject of an application for a therapeutic treatment order.

(8) This Act as in force immediately before the commencement of section 12 of the Children, Youth and Families Amendment Act 2013 continues to apply to the issue and execution of a search warrant for the purpose of taking a child into safe custody that had been issued but not executed before that commencement.

(9) On the execution of a search warrant referred to in subsection (8), this Act as in force on or after the commencement of section 12 of the Children, Youth and Families Amendment Act 2013 applies to the child taken into safe custody and the making of an interim accommodation order as if the child had been placed in emergency care—

(a) under section 247A(4), if the child is the subject of an application for a therapeutic treatment order; or

(b) under section 242(5), in any other case.

(10) If a child was taken into safe custody before the commencement of section 12 of the Children, Youth and Families Amendment Act 2013 (with or without a warrant) and had not been brought before the Court or a bail justice before that commencement, this Act as in force on that



30

commencement applies to the child taken into safe custody and the making of an interim accommodation order as if the child had been placed in emergency care—

(a) under section 247A(4), if the child is the subject of an application for a therapeutic treatment order; or

(b) under section 242(5), in any other case.

(11) Section 291 as in force immediately before the commencement of section 41 of the Children, Youth and Families Amendment Act 2013 continues to apply to an interim protection order in force immediately before the commencement of section 41 of that Act.

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

(1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application and savings nature, arising as a result of the enactment of the Children, Youth and Families Amendment Act 2013.

(2) Regulations made under subsection (1) may have a retrospective effect to a day on or after the day on which the Children, Youth and Families Amendment Act 2013 receives the Royal Assent.

(3) To the extent that regulations made under subsection (1) have a retrospective effect, the regulations do not operate so as—

(a) to affect, in a manner prejudicial to any person, the rights of that person existing before the date of the regulations coming into operation; or



31

(b) to impose liabilities on any person in respect of anything done or omitted to be done before the date of the regulations coming into operation.

(4) Regulations made under subsection (1) have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.

626 Repeal of transitional regulation-making powers—Children, Youth and Families Amendment Act 2013

Section 625 and this section are repealed on 1 June 2015.".

__________________



32

PART 3—AMENDMENTS TO FAMILY VIOLENCE PROTECTION ACT 2008

62 Court may close proceeding to publics. 62

See:Act No.52/2008.Reprint No. 1as at1 January 2011and amendingAct Nos53/2010, 16/2011, 29/2011, 48/2011, 65/2011 and 83/2012.LawToday:www.legislation.vic.gov.au

In section 68(2) of the Family Violence Protection Act 2008, for "appropriate registrar for the court must post a copy of the order" substitute "court must cause a copy of the order to be posted".

63 Attendance at court of author of assessment report

(1) In section 73G(2)(b) of the Family Violence Protection Act 2008, for "with the appropriate registrar at" substitute "in".

(2) In section 73G(3) of the Family Violence Protection Act 2008, for "notify the author of the report" substitute "arrange for the author of the report to be notified".

64 Notice of appeal



33

In section 116(4) of the Family Violence Protection Act 2008—

(a) for "file notice of the appeal" substitute "cause the notice of appeal to be transmitted";

(b) in paragraphs (a) and (b), for "with" substitute "to".

65 Person giving report may be required to attend hearing

(1) In section 134(1) of the Family Violence Protection Act 2008 omit "appropriate registrar for the".

(2) In section 134(2) of the Family Violence Protection Act 2008, for "notify the person concerned" substitute "arrange for the person concerned to be notified".


After section 147 of the Family Violence Protection Act 2008 insert—

"147A Jurisdiction of Children's Court to deal with applications related to child protection proceedings

(1) This section applies if—

(a) an application under this Act is related to a child protection proceeding in the Children's Court; and

(b) each affected family member or protected person and each respondent for the application is an adult.

(2) The Children's Court also has jurisdiction under this Act in relation to the application.



34

(3) For the purposes of subsection (1), an application is related to a child protection proceeding if—

(a) the child who is the subject of the child protection proceeding is the child of, or is under the care and supervision of, the affected family member or protected person, or the respondent for the application; and

(b) the application under this Act raises issues relating to the safety of the child that are the same as, or similar to, the issues forming the basis for the child protection proceeding.


child protection proceeding means a proceeding relating to a child protection order.".

67 Application of Magistrates' Court Act 1989 and rules

At the end of section 170 of the Family Violence Protection Act 2008 insert—

"(2) Despite subsection (1), for the purposes of enforcement of an order for costs made under section 154—

(a) Division 5 of Part 5 of the Magistrates' Court Act 1989 and any rules made for the purposes of that Division apply in respect of the order; and

(b) any rules made under that Act relating to, or necessary for, proceedings for enforcement of a costs order apply for the purposes of proceedings for enforcement of the order under that Division.".



35

68 Application for leave to appeal under Division 9 of Part 4 by vexatious litigant

(1) In section 196(2)(a) of the Family Violence Protection Act 2008, for "file" substitute "arrange to be filed".

(2) In section 196(4) of the Family Violence Protection Act 2008, for "by the appropriate registrar for the court that made the order declaring the person to be a vexatious litigant" substitute "under subsection (2)(a)".

69 New Division 8 of Part 14 inserted

After Division 7 of Part 14 of the Family Violence Protection Act 2008 insert—

"Division 8—Children, Youth and Families Amendment Act 2013

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

Section 147A as inserted by section 66 of the Children, Youth and Families Amendment Act 2013 applies to an application under this Act made on or after the commencement of section 66 of that Act.".

__________________



36

PART 4—AMENDMENTS TO PERSONAL SAFETY INTERVENTION ORDERS ACT 2010

70 Definitionss. 70

See:Act No.53/2010and amendingAct Nos53/2010, 16/2011, 20/2011, 48/2011 and 65/2011.LawToday:www.legislation.vic.gov.au

In section 4 of the Personal Safety Intervention Orders Act 2010 insert the following definition—

"court official means—

(a) the appropriate registrar; or

(b) a deputy registrar of the court; or

(c) any person employed in any of the offices of the court;".

71 Registrar may provide mediation information

(1) In the heading to section 25 of the Personal Safety Intervention Orders Act 2010, for "Registrar" substitute "Court official".

(2) In section 25 of the Personal Safety Intervention Orders Act 2010, for "The appropriate registrar" substitute "A court official".

72 Court may close proceeding to public

In section 51(2) of the Personal Safety Intervention Orders Act 2010, for "appropriate registrar for the court must post a copy of the order" substitute "court must cause a copy of the order to be posted".



37

73 Attendance at court of author of assessment report

(1) In section 59(2)(b) of the Personal Safety Intervention Orders Act 2010, for "with the appropriate registrar at" substitute "in".

(2) In section 59(3) of the Personal Safety Intervention Orders Act 2010, for "notify the author of the report" substitute "arrange for the author of the report to be notified".

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

In section 85(3) of the Personal Safety Intervention Orders Act 2010, for "the appropriate Registrar" substitute "a court official".

75 Notice of appeal

In section 93(4) of the Personal Safety Intervention Orders Act 2010—

(a) for "file notice of the appeal" substitute "cause the notice of appeal to be transmitted";

(b) in paragraphs (a) and (b), for "with" substitute "to".


After section 104 of the Personal Safety Intervention Orders Act 2010 insert—

"104A Jurisdiction of Children's Court to deal with applications related to child protection proceedings

(1) This section applies if—

(a) an application under this Act is related to a child protection proceeding in the Children's Court; and



38

(b) each affected person or protected person and each respondent for the application is an adult.

(2) The Children's Court also has jurisdiction under this Act in relation to the application.

(3) For the purposes of subsection (1), an application is related to a child protection proceeding if—

(a) the child who is the subject of the child protection proceeding is the child of, or is under the care and supervision of, the affected person or protected person, or the respondent for the application; and

(b) the application under this Act raises issues relating to the safety of the child that are the same as, or similar to, the issues forming the basis for the child protection proceeding.


child protection proceeding means a proceeding relating to a child protection order.".

77 Costs

At the end of section 126 of the Personal Safety Intervention Orders Act 2010 insert—

"(2) Despite subsection (1), for the purposes of enforcement of an order for costs made under section 111—

(a) Division 5 of Part 5 of the Magistrates' Court Act 1989 and any rules made for the purposes of that Division apply in respect of the order; and

(b) any rules made under that Act relating to, or necessary for, proceedings for



39

enforcement of a costs order apply for the purposes of proceedings for enforcement of the order under that Division.".

78 Application for leave to appeal under Division 11 of Part 3 by vexatious litigant

(1) In section 168(2)(a) of the Personal Safety Intervention Orders Act 2010, for "file" substitute "arrange to be filed".

(2) In section 168(4) of the Personal Safety Intervention Orders Act 2010, for "by the appropriate registrar for the court that made the order declaring the person to be a vexatious litigant" substitute "under subsection (2)(a)".

79 New Division 3 of Part 13 inserted

After Division 2 of Part 13 of the Personal Safety Intervention Orders Act 2010 insert—

"Division 3—Children, Youth and Families Amendment Act 2013

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

Section 104A as inserted by section 76 of the Children, Youth and Families Amendment Act 2013 applies to an application under this Act made on or after the commencement of section 76 of that Act.".

__________________



40

PART 5—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

80 Amendment to the Coroners Act 2008

In section 3(1) of the Coroners Act 2008, in paragraph (b) of the definition of person placed in custody or care, for "taken into safe custody" substitute "placed in emergency care".

81 Amendment to Commonwealth Powers (Family Law-Children) Act 1986

In the Schedule to the Commonwealth Powers (Family Law-Children) Act 1986, in Item 2(j), for "safe custody" substitute "emergency care".

__________________

See:Act No.77/2008.Reprint No. 1as at21 July 2011and amendingAct Nos52/2012, 83/2012, 5/2013 and 31/2013.LawToday:www.legislation.vic.gov.au

s. 80

See:Act No.92/1986.Reprint No. 1as at14 July 1997and amendingAct Nos 59/1997 and48/2006.LawToday:www.legislation.vic.gov.au



41

PART 6—REPEAL OF AMENDING ACT

82 Repeal of amending Act

This Act is repealed on 1 June 2015.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════



42

ENDNOTES

Endnotes


43

† Minister's second reading speech—

Legislative Assembly: 27 June 2013

Legislative Council: 5 September 2013

The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005, the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010 and for other purposes."

children, youth and families amendment act 2013file/13-052a.docx · web viewchildren, youth and...

Documents