Breach of an order by emergency care or application for a new IAO by emergency care

1208
Follow this procedure for breaches by emergency care or a new IAO application by emergency care.
Document ID number 1208, version 6, 23 October 2023.
Introduction

This procedure outlines the tasks required when making the following applications by emergency care:  

  • breach of an interim accommodation order (IAO) – CYFA s. 269
  • breach of a family preservation order (FPO) – CYFA s. 314
  • application for a new interim accommodation order – CYFA s. 270(6)(a).

For applications by emergency care or temporary assessment orders, see Applications by emergency care

Procedure

Case practitioner tasks

  • Complete a review risk assessment detailing how the factors of protection and safety have decreased and the probability of harm occurring, or recurring has increased. Document the decision to breach the order.
  • Review and update essential information categories to reflect information and evidence.
  • Prepare a Form B.
  • Consult your supervisor in all cases and ACSASS in the case of an Aboriginal child.
  • Consult with the CPLO or a divisional legal officer regarding your assessment and the proposed application. Clarify the information that indicates there has been a failure to comply with a condition of the order (breach of IAO or FPO) or that the child is living in conditions that are unsatisfactory for the child’s safety and wellbeing (breach of an FPO or application for new IAO).
    • If the child is on an FPO, consider issuing a notice of direction that enables you to make any reasonable or lawful direction that you consider to be in the best interests of the child, using Form 6 Schedule 2 Notice of direction (See case templates).
    • A subsequent failure to comply with a notice of direction may then provide grounds to make an application to breach the FPO.
  • Given this is an application by emergency care, the application paperwork is generated in CRIS or offline, and scanned copies are uploaded to the CMS Portal. 
  • Complete the relevant application form (Form 16: Notice of hearing - Breach of interim accommodation order; Form 15: Application to vary an IAO or for a new order; or Form 37: Notice of hearing – Breach of family preservation order. See Court – event forms) in CRIS or offline where necessary before uploading onto the CMS Portal.
    • Serve copies to the child or young person aged 12 years or older, the child’s parents and any parties that have been joined to the proceeding. The child’s parents are the biological parents of the child but also include a spouse or domestic partner of a biological parent or a person who has parental responsibility for the child (other than the Secretary). See Service of document and Dispensation of service.
    • Complete Affidavits of service once the parties have been served.
  • Provide the child, parents, joined parties and the relevant persons with a copy of: ‘Child being taken into emergency care– information for children/parents’ and ‘The Children’s Court – information for parent/young people’. See Emergency care information sheets.
  • In terms of service of applications by emergency care, you must make ‘reasonable inquiries’ to locate and serve the relevant parties.  At a minimum you should attend their last known address, call telephone numbers recorded on CRIS and make enquiries with family members to attempt to locate and serve a party.
  • If you are unable to locate and serve all parties prior to the hearing, you must serve them on the day of the hearing (if they attend court) and then complete the affidavit of service and upload to the CMS Portal.
  • Once all documentation is completed and parties have been served - Log in to the CMS Portal.
  • Case access to the relevant child/children will be required to lodge this documentation in the CMS Portal. See 'CMS Portal - Procedure' for more information
  • For metropolitan and rural courts file the original application, affidavit/s of service, Form B and copies of redacted CRIS notes via the CMS Portal prior to 1pm (2pm at Melbourne Children’s Court for a secure care related placement) and be ready to proceed for a submissions hearing by 3pm.
  • Affidavit/s of service will be uploaded after the application has been lodged in the CMS portal through the ‘file a document tab’ in the client court file.
  • For rural locations, if you cannot select the required location and time within the CMS Portal, you must contact the relevant court registrar who will provide advice on how to proceed. 
  • You must redact or mask the name of any person who made a report and any information that is likely to lead to the identification of any person who made a report. 
  • When redacting also keep in mind privacy considerations and remove any references to legal consultation or advice. If you have any questions about the redaction or the scope of the relevant notes, consult with the CPLO or your legal representative on the day. See Information security and Information sharing in child protection practice.
  • Applications by emergency care before a Bail Justice occur if the application cannot be brought before the court within 24 hours. A Bail Justice does not have access to the CMS Portal.  Refer to the Guide for managing applications by emergency care before a Bail Justice for more information.
  • Prior to the cut-off time, notify the CPLO Duty Allocation Lawyer (DAL) (Melbourne DAL 0438 593 701 or 8601 6785; Moorabbin DAL 9090 5866; Broadmeadows DAL 9221 8126), or your rural solicitor as soon as you know an application is coming into court by emergency care.
  • 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. 
    • Form B (attached) 
  • If placing the child in a hospital or parent and baby unit, a ‘Form 13 – Statement of placement availability’ must be signed by or on behalf of the chief executive officer declaring that a placement is available at the hospital or unit and uploaded to the CMS Portal.
  • Give consideration to whether an undisclosed placement is required, and if so, make an application to the court via the CMS Portal.
  • Complete CRIS requirements including court screen and record of activity, decisions and rationales at the conclusion of court.

Supervisor tasks

  • Provide ongoing supervision and consultation.

Team manager tasks

  • Endorse the application by emergency care.
  • Endorse the review risk assessment.