The Law Handbook 2024

48 Section 1: Understanding our laws and courts A young person can only be placed in a secure welfare service if there is a substantial and immediate risk to the child; and not because there is no other adequate accommodation. An initial secure welfare placement cannot exceed three weeks. It can be extended once for a further three weeks if exceptional circumstances exist (s 267(2)(c) CYF Act). Conditions – including contact with parents – can be placed on an interim accommodation order. A young person’s whereabouts may be withheld from a parent if special circumstances exist, or if the young person’s safety or wellbeing is in jeopardy (s 265 CYF Act). An appeal may be made to the Supreme Court about the making or dismissing of an application for an interim accommodation order (s 268). Magistrate’s order A magistrate who finds a protection application proven can then make a protection order. Before the court can make a protection order that removes a child from parental care, it must be satisfied that all reasonable steps have been taken by the DFFH to provide the services necessary to enable the child to remain in parental care (s 276 CYF Act). The protection orders available to the court are: 1 An undertaking An undertaking may be for up to six months or for up to 12 months in special circumstances. This is the least intrusive option and does not involve statutory supervision (s 278). 2 Family preservation order This order gives the DFFH the responsibility for the supervision of the child. However, the child remains in the day-to-day care of one or both parents. Family preservation orders typically contain numerous conditions directed towards parents and children. These orders are for up to 12 months or, in special circumstances, for up to two years (ss 281–282). 3 Family reunification order This order transfers complete parental responsi­ bility for the care of the child to the DFFH. The order can be made for up to 12 months, effectively back-dated to when the child was first out of parental care due to a court order, less any period or periods when the child returned to parental care. Conditions attached to family reunification orders should promote reunification of the child with a parent. The child can be returned to parental care during the period of the family reunification order. On this occurring, the child is taken to be on a family preservation order. 4 Care by secretary order This order transfers complete parental respon- sibility to the DFFH and can only be made for two years or until the child turns 18. The Children’s Court has no power to place conditions on this order and thus any contact between the child and parents is entirely at the discretion of the DFFH. If the DFFH returns the child to parental care, the care by secretary order may be converted administratively to a family preservation order. 5 Long-term care order If there is a person or persons available with whom the child can continue to live until the child is 18, the long-term care order is effectively a care by secretary order that lasts until the child is 18. A long-term care order may also be converted administratively to a family preservation order in the event that a child is returned to parental care. In making a finding or a protection order, a magistrate must make decisions in the best interests of the young person. Other considerations a magistrate must take into account include: • giving ‘protection and assistance to the family as the fundamental group unit of society’; • for Aboriginal or Torres Strait Islander children, the need to maintain cultural identity; • the preservation of child–family relationships; • minimum disruption to education and employ- ment; and • the child’s wishes (but with the child’s age, maturity and other relevant considerations affecting the weight to be given to those wishes) (s 10). Extensions of protection orders Protection orders can be extended by an application from the DFFH. However, the Children’s Court cannot extend a family reunification order beyond a period of 24 months (unless the parents have been affected by the COVID-19 pandemic, in which case, an order can be extended to a total period of 30 months). This period is calculated cumulatively, taking into account all the time a child has been out of parental care due to a court order. This means that