This procedure relates to breach by notice applications in relation to an interim accommodation order (IAO), or a family preservation order (FPO).
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 -Events 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.
- Case access to the relevant child/children will be required to generate and lodge documentation in the CMS Portal. See CMS Portal – procedure for more information.
- Complete Form 16: Notice of hearing – Breach of interim accommodation order or Form 34: Notice of hearing – Breach of protection order in the CMS Portal. See Court owned forms.
- Generate the application on the CMS Portal and obtain a hearing date.
- Arranging security for worker safety concerns, a video link for incarcerated parties or an interpreter for culturally or linguistically diverse parties within the application in the CMS Portal. This will prompt the court to make necessary arrangements.
- Download the application from the CMS Portal and serve copies of the 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 via the CMS Portal 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 upload onto the CMS Portal prior to the hearing date. See Affidavits and statutory declarations.
- Always ensure CPLO is notified of an application as soon as possible, as CPLO DO NOT receive notifications via the CMS Portal. This should include an email to the local CPLO with:
- The court reference number (if available)
- Client name
- Application type
- Hearing location, date, and time
- Withheld addresses and safety concerns.
- 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 via the CMS Portal (CYFA ss. 554 and 559).
- Email a copy of the report to CPLO, the lawyers representing the child, the child’s parents or a party to the proceeding.
- Give a copy of the report to the child if aged 12 years or older, the child’s parents and a 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.
- Provide ongoing supervision and consultation to the case practitioner.
- Review, approve and endorse court report and disposition including conditions.