The Law Handbook 2024

46 Section 1: Understanding our laws and courts Child protection Protection applications Grounds The DFFH may apply to the Children’s Court for protection orders. The grounds upon which the DFFH can apply for these orders, as set out in section 162 of the CYF Act, are: a the child has been abandoned by his or her parents and, after reasonable enquiries i the parents cannot be found; and ii no other suitable person can be found who is willing and able to care for the child; b the child’s parents are dead or incapacitated and there is no other suitable person willing and able to care for the child; c the child has suffered, or is likely to suffer, signifi­ cant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; d the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; e the childhas suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; f the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care. Section 162(2) of the CYF Act provides that harm may be constituted by a single act or omission or by the accumulation of a series of acts or omissions. The Supreme Court, in the case of Director- General of CSV v B (unreported, 11 December 1992) considered the grounds for a protection application. That case related to an allegation of significant damage to emotional or intellectual development. The judge stated that it was not necessary for the damage to be lasting or permanent; the damage needed to be ‘important or of consequence’ to the child’s emotional or intellectual development. Child protection reports and investigations The CYF Act (s 183) allows anyone who reasonably believes that a young person needs protection to report the circumstances to the DFFH or to the police. This report is not a breach of professional ethics or a departure from accepted standards of professional conduct if it is made in good faith. A person reporting in good faith is not liable to any action for damages or other legal proceedings for having done so. The report is only admissible as evidence in proceedings before a court or tribunal with the written consent of the reporter. The person or agency to whom the report is made must not disclose the name of the person making the report to anyone else without the written permission of the reporter. If there has been a protective intervention report of suspected abuse, the DFFH must investigate the subject matter of the report (s 205 CYF Act). The protective intervener (i.e. the DFFH worker) must inform the child and parents that information given may be used in a protection application. If the protective intervener is satisfied on reason­ able grounds that a young person needs protection, they must record that information in the Children at Risk Register. An appeal can be made to the Victorian Civil and Administrative Tribunal ( VCAT ) against a decision to record a case in the register (s 333(1)). Parents considering entering a voluntary agreement with the DFFH should obtain advice from a lawyer experienced in dealing with Children’s Court matters (see Chapter 2.2: How legal aid can help, and Chapter 2.4: Legal services that can help). Mandatory reporting A number of professionals must report to the DFFH cases of suspected child physical or sexual abuse that they become aware of in the course of their employment. Failure to report such suspected abuse constitutes a summary offence, which is punishable by a fine of up to $1923.10 (s 184 CYF Act). Under the CYF Act (s 182) the professionals mandated to report suspected child abuse are doctors, midwives, nurses, teachers (including principals and early childhood teachers), childcare proprietors, childcare workers with post-secondary qualifications, registered psychologists, youth justice officers, youth parole officers, out-of-home-care