Breach of an order by emergency care or application for a new IAO by emergency care
Follow this procedure for breaches by emergency care or a new IAO application by emergency care.
Document ID number 1208, version 4, 25 November 2016.
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 emergency care protection applications or temporary assessment orders, see Emergency care applications.
Case practitioner tasks
- 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 a FPO or application for new IAO).
- If the child is on a FPO, consider issuing a notice of direction which 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.
- 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 - Events forms) in CRIS or off-line where necessary.
- Serve copies by hand 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 then the Secretary). See Service of documents and Dispensation of service.
- 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 parents/young people’. See Emergency care information sheets.
- In terms of service of emergency care applications, you must make ‘reasonable inquiries’ to locate and serve the relevant parties by hand. 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 outside the Court on the day of the hearing (if they attend court) and then complete the affidavit of service.
- Provide the family with information about their and their child’s rights in relation to legal representation, and about Legal Aid.
- For metropolitan courts and rural headquarter courts (this includes Ballarat, Bendigo, Geelong, Latrobe Valley and Shepparton) file the original application, affidavit/s of service and copies of redacted CRIS notes (see below) with the court registry prior to 1pm (2pm at Melbourne Children’s Court for a secure welfare related placement) and be ready to proceed for a submissions hearing by 3pm.
- At all other rural locations you must contact the court registrar prior to filing the application to ascertain the capacity of the Court to hear the application. If the Court has the capacity, you will be advised of the time the application must be filed and other relevant documents. You must be prepared, as soon as practicable after filing the application, for any submissions contests that arise as a result of the application.
If the Court does not have the capacity to hear the protection application that day, the registrar will refer the matter to the closest rural Children’s Court for the application to be filed.
- Arrange a Bail justice hearings if the application cannot be brought before the court within 24 hours. Refer to Bail justice hearing guide - advice for information regarding exceptional circumstances.
- 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.
- After the cut-off time, fax the Summary Information Form and Court forms (PA, Breach of IAO/FPO or application for new IAO) to the CPLO Fax on 1300 651 635. Rural areas complete the Summary Information form and provide to the divisional solicitor as early as possible.
- Complete affidavit of service. See Court - Affidavits forms (the matter will ordinarily not be listed until you file at least one original affidavit of service with the court registry).
- File with the court registry in a sealed envelope a copy of the redacted CRIS case notes relevant to the reasons and circumstances of the emergency care application. 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.
- Attend Court with two copies of the redacted relevant CRIS notes – one copy to be given to the CPLO and one copy to be provided to the court registry (in sealed envelope). Applications for the release of notes will be brought before the court as soon as practicable, if required, usually where there is a dispute as to the placement of the child which is to be determined by a submissions contest.
Child protection practitioners are also required to keep a copy of the court applications and the affidavit of service on the paper file and give a copy of the court applications and affidavit of service to the CPLO for their paper file.
- If placing a child in hospital or parent and baby unit, a ‘Form 13 – Statement of placement availability’ (see Court - Events forms) must be signed by or on behalf of the chief executive officer declaring that a placement is available at the hospital or unit.
- Give consideration to whether an undisclosed placement is required, and if so, make an application to the court.
- Attend the registry immediately upon arrival at court to arrange security at court if there are worker safety issues.
- Complete CRIS requirements including court screen and record of activity, decisions and rationales at the conclusion of court.
- Provide ongoing supervision and consultation.
Team manager tasks
- Endorse the application by emergency care.