Court report requests - Family Division - advice

This advice provides information regarding requests for a court report from the Family Division of the Children's Court when child protection has no current role in relation to the child.

Document ID number 2010, version 2, 1 March 2016.

Introduction

See Court report requests – Family Division for action that must be taken.

The Children's Court may require the Secretary to prepare and submit a court report in certain circumstances. These requests rarely arise. The Family Division of the Children's Court will request a court report from child protection when child protection is not involved with the child in the following circumstances:

  • the child is subject to a permanent care order and a person who is a parent of the child, other than the permanent care parent, is seeking leave of the Court to apply to vary or revoke the order (s. 326(1D) of the CYFA);
  • the child is subject to a permanent care order and a party other than the Secretary has applied to vary or revoke the order (s. 326(1E) and (1F) of the CYFA);
  • when a police officer has issued a protection application

Procedure Referrals from the Children's Court – Criminal Division sets out procedures for responding to a request for a court report from the Criminal Division.

Purpose of the request for a report

The Court's purpose in requesting a report from child protection in the above circumstances is to assist the Court in determining whether the application should be granted. In order to determine whether leave should be granted to a person seeking to vary or revoke a permanent care order in relation to a child, the Court will request a report about the current circumstances of the child. In order to determine whether to vary the contact conditions on a permanent care order, the Court will request a report about the contact needs of the child. In relation to an application to revoke a permanent care order, the Court will request a report to assist it in determining whether revocation would be in the best interests of the child.

Child protection is required to provide a disposition report to the Court detailing the information requested by the Court and advising the Court of its assessment and recommendations.

Variation or revocation

If a party other than the Secretary has filed an application in the Family Division of the Children’s Court to vary or revoke a protection order or a permanent care order, the applicant must serve the application on the department. In this case child protection must prepare a disposition report and file it with the Court 3 days before the hearing of the application. If the department has not been served with the application prior to the application being heard, child protection will receive a request for a court report from the Family Division of the Children's Court. In either case, this constitutes a separate intake type different from those which result from child protection receiving a report in relation to a child.

Custody to third party orders

Although the CYFA has been amended such that custody to third party orders can no longer be made, the transitional provisions (schedule 5, clause 5) provide that a custody to third party order will continue in force until its expiry as if the amendments had not been made. This means that applications to vary or revoke a custody to third party order may be made following 1 March 2016 until that order has expired. The Children’s Court will be able to vary or revoke the order, and if the Court decides to revoke the custody to third party order, it may make any other protection order in accordance with s. 310(1) as it was in force prior to 1 March 2016.

Permanent care orders

Section 326 of the CYFA provides for the variation or revocation of a permanent care order.

An application to vary or revoke a permanent care order can be made by:

  • the child;
  • a person who was the parent of the child provided they have been granted leave of the Court;
  • a person who has parental responsibility for the child under the order (the permanent care parent); or
  • the Secretary.

In the 12 months following the making of a permanent care order, a birth parent may only apply to vary the order on the basis that a contact condition in the order has not been complied with.

The applicant must serve notice of the application on all parties (s. 326(2), including the child, the permanent care parent, a parent (other than the permanent care parent), the Secretary and such other person as the Court directs. A parent must not serve notice of an application on a child or permanent care parent unless leave is granted by the Court (s. 326(2A)).

Parent seeking leave to apply

When a parent seeks leave of the Court to apply to vary or revoke a permanent care order the Court may request a report from the Secretary about the current circumstances of the child (s. 326(1D)). This is what the Court must first have regard to in determining whether to grant leave for an application by a parent to vary or revoke a permanent care order.

When setting out the current circumstances of the child, consider how those circumstances may be related to the other matters the Court must also have regard to, including:

  • regarding conditions—
    • the primacy of the child’s relationship with the permanent care family;
    • protecting the child and supporting the permanency of the placement;
    • promoting the child’s continuing connection to their parents, siblings or culture;
    • flexibility to accommodate the child’s changing developmental needs over time;
    • reasonableness in the context of the child’s permanent care family’s life;
    • capacity of the permanent care parent to preserve the child’s identity and connection to their culture of origin, and their relationships with their birth family;
  • the potential disruption to the child’s permanent care placement and the child’s relationship with their permanent care family;
  • in relation to an application to vary, whether—
    • it appears a party has not complied with a condition;
    • there has been a significant change in circumstances of the parent or the child since the order was made; and
  • in relation to an application to revoke, whether the parent’s circumstances have changed significantly to the extent that they can demonstrate they would be able to permanently fulfill the responsibilities of parenthood, including the capacity to provide adequately for the emotional, intellectual, educational and other needs of the child.

Application to vary or revoke

Where an application to vary a permanent care order has been made in relation to a contact condition, the Court may request a report from the Secretary about the contact needs of the child (s. 326(1E)). When setting out information about the contact needs of the child, consider how that may be related to other matters the Court must also have regard to, including:

  • the primacy of the child’s relationship with the permanent care family, and whether the condition—
    • is necessary to protect the child and support the permanency of the placement;
    • is necessary to promote the child’s continuing connection to their parents, siblings or culture;
    • is sufficiently flexible to accommodate the child’s changing developmental needs over time;
    • is reasonable in the context of the child’s permanent care family’s life; and
    • is necessary given the capacity of the permanent care parent to preserve the child’s identity and connection to their culture of origin, and their relationships with their birth family.

Where an application to revoke a permanent care order has been made, the Court may request a report from the Secretary to assist the Court in determining whether revocation would be in the child’s best interests (s. 326(1F)). A comprehensive assessment and report to the Court will be required.

Irreconcilable differences application

If a report is requested in response to an irreconcilable differences application, the case is considered substantiated. It proceeds to protective intervention, and all usual policy and procedures apply, including the preparation of a case plan.

Protection application by police

If a member of Victoria police issues a protection application, the police officer remains the applicant in the proceeding but the Court will request a court report from child protection.

Where police have issued a protection application and child protection is not currently involved with the child, the request from the Court for a report constitutes a separate intake type different from those which result from child protection receiving a report in relation to a child.

The case is considered substantiated. It proceeds to protective intervention and all usual policy and procedures apply, including the preparation of a case plan.

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