Breach by notice

Follow this procedure when initiating a breach proceeding by notice.

Introduction

This procedure relates to breach by notice applications in relation to an interim accommodation order (IAO), or a family preservation order (FPO).

Procedure

Case practitioner tasks

  • Seek advice from a Child Protection Litigation Office (CPLO) solicitor or divisional solicitor about the proposed application.
  • If initiating breach proceedings by notice, consult with your supervisor and undertake an assessment to clarify that there has been a failure to comply with a condition of the order, a failure to comply with any direction given or the child is living in conditions that are unsatisfactory for the child’s safety and wellbeing.
    • Consider issuing a notice of direction for breaches of conditions of FPO – Form 6 Schedule 2 Notice of direction (see Court owned forms) if the child’s safety will not be compromised.
    • If there is a subsequent failure to comply with a notice of direction, you can then make an application to breach FPO.
  • Complete Form 16: Notice of hearing – Breach of interim accommodation order or Form 34: Notice of hearing – Breach of protection order in CRIS or offline where necessary. See Court owned forms.
  • File the application at the court registry and obtain a hearing date.
  • Serve copies of the application on the child/young person aged 12 years or older, the child’s parents, or in the case of an IAO, the person with whom the child is living at least five days before the hearing. See Service of documents. You may apply to the court for dispensation of service.  See Dispensation of service.
  • Provide the family with information about their and their child’s right to legal representation and Legal Aid.
  • Complete an affidavit of service and lodge paperwork with the Court prior to the hearing date to have the matter listed. See Affidavits and statutory declarations.
  • Fax a copy of the application and Form 21: Affidavit of service to the CPLO (metropolitan area) or a divisional solicitor (rural area) before the hearing.
  • Prepare a court report for the hearing.
    • Consult with your supervisor or the CPLO or a divisional solicitor about what should be included in the report.
    • Obtain endorsement from your supervisor or team manager for the disposition, including any conditions.
    • Check the CRIS alert screen to make sure the report does not include confidential information such as undisclosed addresses and reporter details.
    • Seek comments from the family.
    • See Preparing the court report – advice.
  • At least three days before the hearing:
    • Provide the court report to the court (CYFA ss. 554 and 559). Non-court ordered reports authored by other professionals cannot be distributed without prior consent of the author and the approval of a supervisor.
    • Fax copies of court reports to the CPLO (metropolitan area) or divisional legal officer (rural area).
    • Fax copies of court reports to parents’ and child/young person’s solicitors.
    • Provide a copy of the court report to the child or young person and their parents and to any other party to the proceeding (CYFA ss. 556 and 559).
  • Arrange an appointment with Victoria Legal Aid for each child aged 10 years or older, so that the child can give instructions to their lawyer and avoid the need to attend court to give instructions.
  • Contact the court to arrange security if there are worker safety issues.
  • Seek legal advice from a CPLO solicitor or divisional solicitor before the hearing.
  • Complete CRIS requirements including court screen and record of activity, decisions and rationales.

Supervisor tasks

  • Provide ongoing supervision and consultation to the case practitioner.
  • Review, approve and endorse court report and disposition including conditions.
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