Expiry of orders - advice

This advice provides additional information regarding expiry of orders.

Introduction

This advice applies to protection orders being administered by the department:

  • family preservation order
  • family reunification order
  • care by Secretary order
  • long-term care order.

Family preservation order

If a family preservation order is approaching its expiry date, and the protective concerns have been sufficiently addressed, the case plan may be to allow the order to end when it expires.

If this is the case, there is no need for the matter to return to court.

It is good practice to send a letter to the registrar of the Children’s Court to inform the Court that the order is to be allowed to expire at term.

Family reunification order

Under a family reunification order, the Secretary has parental responsibility for the child or young person and they will be in out-of-home care.

A family reunification order cannot be allowed to expire at term unless the expiry coincides with the young person subject to the order attaining the age of 18 years.

In all other circumstances, an application is to be lodged in relation to the order prior to its expiry date. This is essential to maintain protection for the child.

It is in a child’s best interests for the time they have spent in out-of-home care to continue to accumulate consistent with the intent of legislated timeframes.

Although an unintended end-of-order lapse will not have the effect of restarting the accumulation of time in out-of-home care, unless the child has actually been in the care of a parent without any order in force, this situation is best avoided, for the absence of doubt.

Care by Secretary order

Under a care by Secretary order, the Secretary has exclusive parental responsibility for the child or young person and they will be living in out-of-home care.

A care by Secretary order cannot be allowed to expire at term unless the expiry coincides with the young person subject to the order attaining the age of 18 years.

In all other circumstances, an application is to be lodged in relation to the order prior to its expiry date. This is essential to maintain protection for the child.

Long-term care order

A long-term care order will end on the 18th birthday of the young person subject to the order, unless the child marries earlier.

The order should have an expiry date that coincides with the date on which the young person turns 18.

If the young person marries before their 18th birthday or the expiry date of the order is after the young person turns 18, the Court should be advised in writing that the order has ended, either because the young person has married, or has attained the age of 18 years.

Ending an order following an annual review

If the duration of a protection order is more than 12 months, the Court must direct the Secretary to review the operation of the order before the end of the each 12 month period (that is annually before the anniversary of the making of the order).

Only family preservation, care by Secretary and long-term care orders can be made for more than 12 months.

Following an annual review, the order will remain in force, unless the Court is notified that the order is to end.

A decision to end the order can only be made with the agreement of the child (if aged 10 years or older) and the child’s parents.

If the decision is to end the order, the Court, the child (if aged 10 years or older), the child’s parents and any other person the Court directs, is to be notified in writing.

The order will end on the date of the 12 month anniversary, or the date the notice is given, whichever is later.

Refer to ss. 281(3)-(7); 289(2)-(6); and (290(3)-(7) of the CYFA.

Managing the unintended lapse of an order

A protection order administered by the department may expire at term as the result of an administrative oversight.

In the case of a family preservation order, a decision needs to be made urgently about whether continued child protection intervention is necessary.

If an order has lapsed unintendedly, in the case of a family preservation order where a child in parental care continues to need protection, or in the case of a family reunification order or care by Secretary order, a protection application (usually by notice) must be issued promptly.

Depending on the circumstances, the Court may be inclined to make the same or a suitable alternative order. Alternatively, it may be challenging to prove grounds for the protection application, or establish a solid basis for the recommended order. This could occur where there is a substantial difference between the current facts and circumstances and the evidence that supported the original protection application.

Early legal advice will be of assistance.

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