The Law Handbook 2024

Chapter 1.4: The Children’s Court 49 unless a child is returned to parental care, the only orders available are a care by secretary order, a long- term care order or a permanent care order. Permanent care orders Under the CYF Act (s 319), an application may be made for a permanent care order. This order can only be made if the young person’s parent has not had the care of the young person for at least six months, or for periods that total at least six months of the preceding year. A permanent care order gives a person who is not the parent of the young person long-term parental responsibility of the young person. The order may last until the young person turns 18 or marries, whichever happens first. A permanent care application is made by the DFFH in relation to approved care givers, but a permanent care order cannot be made in favour of the DFFH. Application may be made to vary or revoke the order, but can only be made by a parent with the court’s leave. A successful application (with the prior consent of the DFFH) by the custodian for parental responsibility under the Family Law Act 1975 (Cth) terminates the permanent care order. A permanent care order may contain provision for contact between a child and his or her parent for up to four times a year (s 321(1)(d) CYF Act). There is no such restriction upon the court making an order stipulating frequency of contact with other people significant to the child (i.e. siblings) (s 321(1)(e)). Irreconcilable difference applications Under the CYF Act (s 259), any person who cares for a young person under 17 years of age and who believes that there is a ‘substantial and presently irreconcilable difference between themself and the young person to such an extent that the care and control of the young person are likely to be seriously disrupted’ may apply to the court for a finding that such a difference exists. Also, a child who believes that there is a substantial and presently irreconcilable difference between themself and the person who has custody of them to such an extent that the care and control of them are likely to be seriously disrupted may, subject to section 259 of the CYF Act, apply to the court for a finding that such a difference exists. Before an irreconcilable difference application can be heard, conciliation counselling must take place, or be attempted (unless exceptional circumstances exist) and the DFFH must provide a Certificate of Conciliation Counselling (s 260). A magistrate who finds that there are irreconcilable differences between the parties will make a protection order (see ‘Magistrate’s order’, above). Irreconcilable difference applications are very rare. Powers and responsibilities of the DFFH If a young person is in the care of the Secretary of the DFFH, the secretary may take legal proceedings on behalf of that young person in relation to the property or rights of the young person (s 172(2) CYF Act). The Secretary of the DFFH may also take into care, without a warrant, a young person under their care. This is subject to anything else expressly stated in the CYF Act; for example, sections 173–176, which relate to the placement of young people. Under the CYF Act or the Adoption Act 1984 (Vic) (‘ Adoption Act ’), the secretary may place a young person who is in their care: • in an out-of-home care service (e.g. a DFFH or agency residential unit or a foster placement); • in a secure welfare service for 21 days (or a further 21 days in exceptional circumstances); • in any other suitable situation, as circumstances require (s 173(1)); or • for adoption under the Adoption Act if the child is on a care by secretary order. In making a decision to place a young person, the welfare of the young person must be of paramount concern, and the Secretary of the DFFH must make provision for the physical, intellectual, emotional and spiritual development of the young person, in the same way that a good parent would (s 174). There are specific provisions in the CYF Act (s 11) regarding principles of decision making. Time limits are provided for in the case planning process. Sections 331 and 333 of the CYF Act provide for internal review of departmental decisions. Further appeal to VCAT may be made by the young person or parent if they are dissatisfied with the internal reviews established by the DFFH.