Appearances and adjournments at the interim accommodation order stage

Proposal

This proposal provided an amendment to how we define ‘extraordinary circumstances’ for the purposes of providing legal aid funding under an existing grant for additional appearances at the interim accommodation order stage.

Currently, Victoria Legal Aid funds up to four appearances and four adjournments at the interim stage of child protection proceedings. In extraordinary circumstances we will fund additional appearances at the interim stage.

This proposed change recognised that more intensive efforts may be required at the interim stage of proceedings to determine (and often, then obtain all parties’ consent to) appropriate arrangements for the family.

It was also noted that this may lead to a greater number of interim accommodation orders by consent and reduce the number of contested proceedings later on.

Stakeholder feedback

This change was supported in principle by a number of stakeholders.

There was concern, though, that the proposal was drafted too narrowly, particularly the eligibility requirement that there be a case plan for reunification in place. For example, it was noted that the requirement relies on a Department of Health and Human Services case plan proposal of reunification before that position has been subject to judicial scrutiny.

There was some concern that funding additional adjournments may drive an increase in court activity at the interim stage. We acknowledge this concern. We are of the view, though, that with time in out-of-home care starting to accumulate once an interim accommodation order is made and the legislative amendments placing strict timeframes on the availability of orders for reunification, there is a need to intensify efforts at the interim stage. This is important to ensure that appropriate referrals and supports are secured as early as possible, so that parents can begin to address the protective concerns impacting on their parenting.

The need to secure appropriate referrals and supports is also envisaged by the reintroduction of section 276 into the Children, Youth and Families Act 2005 by a subsequent amendment Bill in 2015 (as it was removed in the original 2014 legislative amendments).

Section 276 requires the court to be satisfied that ‘all reasonable steps have been taken’ by the Department of Health and Human Services ‘to provide the services necessary in the best interests of the children’. This includes supports to facilitate reunification. We envisage that this proposed guideline change will help to ensure this occurs early, avoiding disputes or contests down the track about whether necessary services have been provided pursuant to section 276.

As noted above and in the consultation paper, we expect that this may lead to a greater number of interim accommodation orders by consent, reducing the number of contested proceedings, which also have a more significant resource implication for both Victoria Legal Aid and the court.

Action – expand the definition of extraordinary circumstances

While acknowledging that there may be an increase in the number of court events at the interim stage, we are of the view that this is a necessary and appropriate response to the legislative amendments to assist families.

We have proceeded with an amended definition of ‘extraordinary circumstances’ that takes into account the stakeholder feedback.

Under the amended definition, additional interim accommodation order appearances will be funded where:

• the Department of Health and Human Services proposes out-of-home care
• there are reasonable prospects of reunification within the available timeframe under the new legislative provisions, and where the requirements of section 276 of the Children, Youth and Families Act 2005 have not yet been met.

See the new state family guidelines.

More information

Read about the other proposals:

• Case plan meetings
• Interim accommodation order contested hearings
• Appeal of an interim accommodation order
• Review of case planning decisions
• Change or breakdown in a child’s placement.