Interstate and New Zealand case transfers - advice
This advice provides additional information regarding the transfers of child protection orders or proceedings within Australia or between Australia and New Zealand.
Document ID number 2252, version 1, 1 December 2015.
See procedure Interstate and New Zealand transfers for tasks that must be undertaken.
The CYFA provides for the transfer of orders and proceedings between Victoria and other states or territories of Australia, and Victoria and New Zealand. The Interstate child protection protocol 2016 supports the legislation. All Australian states, territories and New Zealand have similar legislation and are participants to the protocol. See Interstate child protection protocol.
The purpose of the legislation and protocol outlined in this advice is to improve the provision of services to children who:
- are the subject of a child protection order or proceeding which is proposed to be transferred interstate or
- are the subject of a child protection intervention where there is a proposal for the child to move interstate, without involving the transfer of an order.
The protocol specifically aims to provide guidance for departmental staff and improve the coordination of the operations of the relevant departments to facilitate:
- the protection of children in need of care and
- the promotion of the best interests of such children.
The policy relating to interstate transfers is contained within the protocol for the transfer of child protection orders and proceedings and interstate assistance. The protocol relies on a spirit of cooperation and operates from the basis that child protection is the responsibility of all child welfare departments regardless of where the child originates.
Transfer between Victoria and New Zealand
When consideration is being given to transferring a child between Australia and New Zealand, the sending state (in this case Victoria) must contact the immigration officials in New Zealand and seek any information regarding immigration issues that may relate to the child.
Administrative transfer of a child protection order out of Victoria
Child protection may transfer a child protection order to a participating state if:
- the same or a similar order exists in the receiving state
- the Victorian child protection order is not subject to an appeal to the Supreme Court or the County Court
- the Coordinating Interstate Liaison Officer (CILO) in the receiving state has consented in writing to the transfer and to the proposed terms of the child protection order to be transferred
- the child's parents and any other person granted contact with the child under the order consent, and
- the child who is the subject of the order has not given written notice of opposition to the decision to transfer the order and has been given an opportunity to seek legal advice regarding the decision.
Judicial transfer of a child protection order out of Victoria
A judicial transfer is to be sought when a relevant party does not consent to the transfer of the order or it is not considered desirable to seek an administrative transfer.
Transfer of child protection proceedings out of Victoria
A Victorian Children's Court may make an order transferring child protection proceedings that are pending to the Children's Court in the participating state if,
- an application is made by child protection, and
- the relevant CILO in the receiving state has consented in writing to the transfer.
The proceeding in a Victorian Children's Court is discontinued upon registration in the Children's Court in the receiving state.
If a Victorian Children's Court makes an order transferring child protection proceedings, it may also make an interim order. The interim order may,
- release the child or place the child into the care of any person and subject to any conditions the Court considers appropriate, or
- give responsibility for the supervision of the child to the interstate officer in the receiving state, or any other person in that state to whom responsibility could be given under the legislation of that state.
The interim order remains in force for the period specified by the Court and not exceeding 30 days.
The Children's Court in the receiving state may revoke an interim order in accordance with the relevant interstate law.
In accordance with the provisions of the CYFA (Schedule 1, PART 3, clause 15(a) and (b)), child protection must as soon as practicable serve a copy of the application for an order transferring child protection proceedings to the Children's Court in the receiving state on,
- the child's parents or other person with whom the child is living, and
- the child, if aged 12 years and above.
The transfer of proceedings is an infrequent occurrence. Due to issues associated with evidence and the availability of witnesses, specific legal advice should be sought prior to any decisions being made regarding the transfer of child protection proceedings.
Administrative or judicial transfer of an order or child protection proceedings into Victoria
When child protection receives a request for a transfer of an order or child protection proceedings from New Zealand or another state or territory:
- child protection is required to be of the opinion that the same or similar order exists in Victoria as the order to be transferred.
Child protection must have received advice that:
- the order is not subject to appeal, and
- any required consent has been obtained. No consent is required for a guardianship order, although the interstate appeal period still applies.
Note: For other orders, the consent of the parents and any other person granted contact or access under the order is required, unless they live or intend to live in Victoria.
The initial written request should come via the Victorian CILO then to the divisional ILO.
All assessments of placement should occur before the transfer is accepted.
If the transfer involves an Indigenous child, a relevant Indigenous agency should be involved in the decision to transfer. The Aboriginal child placement principle should be complied with.
The team manager will consent in writing to the transfer and the proposed terms of the order. If the transfer request is for a judicial transfer, consent must be obtained before the interstate court can make an order to transfer.
See procedure Interstate and New Zealand transfers for tasks that must be undertaken.
In the exceptional circumstance of the transfer not being accepted, a Director must inform the sending state in writing of the refusal to accept the transfer, and the reasons why the transfer cannot be accepted. Exceptional circumstances may be that the transfer is contrary to the child's best interests, it is not legally possible or the case is exceptional and it is clearly impractical to accept the transfer. The sending state may subsequently request a review of that decision, as set out in the Interstate child protection protocol.
Transfer child without transferring the order (in or out of Victoria)
If a child subject to a Children's Court order is to be placed interstate and a sending state is unable to transfer the order or the transfer of the order would (at that time) be contrary to the best interests of the child, the sending state may place the child interstate without transferring the order.
- The sending state will liaise with the relevant interstate department regarding the proposed placement.
- A written request will be made to the receiving state's CILO regarding the tasks to be undertaken, for example, carer assessments before the child leaves the sending state and tasks to be undertaken once the child arrives in the receiving state.
- If the transfer involves an Indigenous child, a relevant Indigenous agency should be involved in the decision to transfer. The Aboriginal Child Placement Principles must be complied with.
- The sending state is to supply all information to the receiving state as reasonably requested.
Interstate placement or movement of a child who is not on a child protection order but is subject to child protection involvement
A receiving state will provide an assessment of the proposed carers and a report on the placement if it is reasonably requested by the sending state.
If the request involves an Indigenous child, a relevant Indigenous agency should be consulted. The Aboriginal child placement principle should be complied with.
If a state is involved in a child being placed interstate due to protective concerns, where there is not a child protection order or proceeding, the sending state will, prior to the placement being made, inform the receiving state of the placement.
If the receiving state requests, the sending state will outline the background of the case so that the receiving state can determine whether to take any action in relation to the welfare of the child.
If the child is an Indigenous child, the background of the case will include an outline of any prior involvement of any organisation with expertise in the child welfare matters of the relevant Indigenous community.
Any cost associated with the interstate placement of a child is to be borne by the sending state, until the transfer of the child protection order or proceeding has occurred, when costs will be borne by the receiving state.
The issue of transition costs or costs highly in excess of the norm, should be discussed and clarified at the time the transfer is being negotiated. See Interstate child protection protocol.
Considerations for good practice
- In all matters the best interests of the child must be of paramount consideration.
- Child protection practitioners, in consultation with their supervisor, should consider which jurisdiction is best placed to be the responsible department or minister for a child protection order. Generally this will be the state where the child is living (long term), or where it is proposed that the child will live long term.
- Children, their parents, and involved family members should be consulted regarding the proposed transfer.
- In all matters involving an Indigenous child, the relevant Indigenous agency must be consulted prior to any decisions being made.
- Planning an interstate placement, whether the child is subject to a child protection order or not, should include the thorough involvement of the relevant state prior to the interstate placement.
- In relation to a court proceeding, consideration should be given to the practicalities of which state is best placed to present evidence to the Children's Court. That is, where the witnesses are, who can mount the strongest case in court, issues of evidence must be considered.
Factors to consider when another jurisdiction proposes the transfer of a child protection order or proceeding to Victoria:
- Requests should be responded to as promptly as practicable.
- Victoria should consent to the transfer request unless exceptional circumstances exist. Consideration should be given to the most appropriate child protection order in Victoria and, whether any conditions attached to the order are appropriate.