This proposal expanded the existing State family guidelines to fund a child or parent to initiate or respond to an application to vary or revoke an existing protection order in certain circumstances.
It was proposed that this expanded funding be targeted to situations where the child is out of the parents’ care under a family reunification order (that is, where the Department of Health and Human Services and parties are still working towards reunification of the child with their family), and there are reasonable prospects of the child being immediately placed in a parent’s care.
This proposal was focused on addressing the change brought about by the introduction of the family reunification order. Currently, a reunification case plan may be made under a:
- supervised custody order
- custody to third party order
- custody to secretary order.
The supervised custody order and custody to third party order require the department to bring the matter back to court if there is a change or breakdown in the child’s placement and a new placement is proposed.
Under the new legislative provisions the custody to third party order is made redundant. The supervised custody order and custody to secretary order are replaced by the family reunification order, under which the Department of Health and Human Services is conferred full discretion to determine questions of placement of the child (and thus any changes to a child’s placement once a final order is made becomes an administrative decision for the department).
The intent of the proposal was to provide in particular a young person, who wishes to participate in a decision about where they live, with assistance to make an application to revoke the current protection order in circumstances where their placement has broken down. The proposal would also assist parents in such circumstances where it is a viable option for the child to be immediately placed in their care.
We received feedback from stakeholders that the proposal was both too limiting and in need of tightening.
We agree with stakeholders that the proposal expanded eligibility to scenarios beyond placement breakdown or a change in the child’s placement, the original intent of the proposal. However, we are also of the view that eligibility is strongly tempered by the requirement that there be a reasonable prospect of the child being immediately placed in the care of a parent.
This will also ensure that a child does not stay in an out-of-home care placement when the child can be returned to a parent, avoiding time in out-of-home care accumulating unnecessarily.
We accept the stakeholder feedback that the focus on family reunification orders in this proposal narrows the circumstances in which the guideline would apply. However, we do not propose expanding eligibility under this proposal to scenarios where there is a care by secretary order in place.
We believe this will be of limited utility. Conditions cannot be included on a care by secretary order and the legislative amendments confer, under a care by secretary order, parental responsibility for the child on the Secretary to the exclusion of all other persons.
The feedback has also highlighted, though, that the proposal may fall short of its original intent of providing young people with a voice in decision-making where there is a change or breakdown in placement.
This is because, as currently drafted, the proposal only provides young people, who wish to participate in a decision about where they live, with a voice in that decision if there is a reasonable prospect of immediate reunification with the parent.
However, upon further analysis we are of the view that the approach originally outlined in this proposal cannot be amended further to ensure that a broader group of young people have a voice in placement decisions. This is due to the nature of the new protection orders.
As discussed, a family reunification order will not name a specific placement thus it cannot be varied to specify a new placement. It can only be revoked entirely and replaced with a different order, for example a family preservation order that places the child with their parent.
This also means a return to a kinship care placement could not be argued via an application to vary or revoke an existing order.
Action – new application to revoke a protection order guideline
We are of the view that this scenario remains an important one to fund. A new guideline has been introduced to fund a child or parent to initiate or respond to an application to revoke a family reunification order where there the child can be immediately placed in the care of the parent.
Action – new component to review of case planning decision guideline
A grant of legal assistance is available for a child (only) for internal review of a case plan decision made by the Department of Health and Human Services where there:
- is a current protection order placing the child out of the parent’s care
- has been a change in placement
- are reasonable prospects of demonstrating that the change in placement was not in the best interests of the or was inconsistent with the need to protect the child from harm or to protect his or her rights and to promote his or her
- is a reasonable prospect of arguing an alternative feasible placement proposal.
The expansion also provides for corresponding funding for external Victorian Civil and Administrative Tribunal review following an unsuccessful internal review if a merits assessment supports a likelihood of success at tribunal.
Read about the other proposals:
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Reviewed 18 March 2022