Part 16Transfer of certain orders and proceedings between South Australia and other jurisdictions

Part 16—Transfer of certain orders and proceedings between South Australia and other jurisdictions 177—Purpose of Part The purpose of this Part is to provide for the transfer of certain child protection orders and proceedings between South Australia and another State or a Territory of Australia or between South Australia and New Zealand— (a) so that children who are in need of protection may be protected despite moving from one jurisdiction to another; and (b) so as to facilitate the timely and expeditious determination of court proceedings relating to the protection of a child. 178—Interpretation (1) In this Part— appropriate court, in relation to a participating State, means the court in that State that has jurisdiction to hear and determine child protection proceedings at first instance; child protection order means an order (not being an interim order (see definition) or any other order made on an interim basis) made under a child welfare law that gives— (a) a minister of the Crown; or (b) a person who is the chief executive of a government department or statutory authority or otherwise holds an office or position in, or is employed in, a government department or statutory authority; or (c) the chief executive of a licensed children's residential facility or any other organisation or its chief executive, responsibility in relation to the guardianship, custody or supervision of the child, however that responsibility is described; child protection proceeding means any proceeding brought in a court under a child welfare law for— (a) the making of a finding that a child is in need of protection or any other finding (however described) the making of which is a prerequisite under the child welfare law to the exercise by the court of a power to make a child protection order; or (b) the making of a child protection order or an interim order or for the variation or revocation or the extension of the period of such an order; child welfare law means— (a) this Act; or (b) the Children and Young People (Safety) Act 2017; or (c) the Children's Protection Act 1993; or (d) a law of another State that is declared by proclamation under subsection (2) to be a child welfare law for the purposes of this Part; interim order means— (a) an order made under section 190; or (b) an equivalent order made under an interstate law; interstate law means a law of another State that is declared by proclamation under subsection (3) to be an interstate law for the purposes of this Part; interstate officer, in relation to a State other than South Australia, means— (a) the holder of an office or position that is declared by proclamation under subsection (4) to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Part; or (b) the person holding the office or position to which there is given by or under the child welfare law of that State principal responsibility for the protection of children in that State; participating State means a State in which an interstate law is in force; Registrar means the Registrar of the Youth Court; sending State means the State from which a child protection order or proceeding is transferred under this Part or an interstate law; State means— (a) a State or a Territory of Australia; or (b) New Zealand. (2) The Governor may, by proclamation, declare a law of a State (other than South Australia) to be a child welfare law for the purposes of this Part if satisfied that the law substantially corresponds to this Act. (3) The Governor may, by proclamation, declare a law of a State (other than South Australia) to be an interstate law for the purposes of this Part if satisfied that the law substantially corresponds to this Part. (4) The Governor may, by proclamation, declare an office or position in a State (other than South Australia) to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Act. (5) The Governor may, by proclamation, vary or revoke a proclamation made under this section. (6) For the purposes of this Part, a decision or order is not subject to review or appeal if— (a) the time for instituting a review of or appeal against the decision or order has expired; or (b) where a review or appeal was instituted, the decision or order was confirmed on the review or appeal or the review or appeal was discontinued. (7) The following persons are parties to proceedings before the Court on an application for the transfer of a child protection order or a child protection proceeding under this Part: (a) the applicant; (b) the child the subject of the application; (c) each parent and guardian of the child. Division 2—Administrative transfer of child protection order 179—When Chief Executive may transfer order (1) The Chief Executive may transfer a child protection order (the home order) to a participating State if— (a) in the Chief Executive's opinion a child protection order to the same or a similar effect as the home order could be made under the child welfare law of that State; and (b) the home order is not subject to an appeal; and (c) the relevant interstate officer has consented in writing to the transfer and to any proposed variation of the terms of the order pursuant to subsection (3); and (d) the persons whose consent to the transfer is required under section 180 have so consented. (2) In determining whether a child protection order to the same or a similar effect as the home order could be made under the child welfare law of the participating State, the Chief Executive must not take into account the period for which it is possible under that law for such an order to be in force. (3) For the purposes of transferring a child protection order to a participating State, the Chief Executive may vary the terms of the order so that it makes provision for any matter in terms that could be included in a child protection order of that type made in the participating State. (4) The Chief Executive must specify in the transferred order the period for which it is to remain in force. (5) That period must be— (a) if the same period as that of the home order is possible for the transferred order under the child welfare law of the participating State commencing on and including the date of the registration of the order in that State—that period; or (b) in any other case—as similar a period as is possible under that law but in no case longer than the period of the home order. 180—Persons whose consent is required (1) For the purposes of section 179(1)(d)— (a) if the home order grants custody (but not guardianship) of the child to the Minister or the Chief Executive, consent to the transfer is required from the child's parents; (b) if the home order grants custody of the child to the chief executive of a licensed children's residential facility or to any other organisation or its chief executive, consent to the transfer is required from the child's parents and the chief executive of the facility or organisation; (c) if the home order requires the child to be under the supervision of the Chief Executive or some other specified person or authority, consent to the transfer is required from the child's parents and guardians; (d) if the home order or any ancillary order grants a person access to the child, consent to the transfer is required from that person. (2) However, if a person whose consent would normally be required is residing in, or is intending to reside in, the relevant participating State, the consent of that person to the transfer is not required. (3) Despite subsection (1), if a person whose consent is required— (a) cannot, after reasonable enquiries, be found; or (b) fails to respond within a reasonable period of time to a request for consent, the consent of that person to the transfer is not required. 181—Chief Executive to have regard to certain matters In determining whether to transfer a child protection order to a participating State under this Division, the Chief Executive must have regard to— (a) any sentencing order (other than a fine) in force in respect of the child, or criminal proceeding pending against the child in a court, of which the Chief Executive is aware; and (b) whether the Chief Executive or an interstate officer is in the better position to exercise the powers and responsibilities under the order; and (c) the desirability of the order being an order under the child welfare law of the State where the child resides. 182—Notification to child, parents and guardians (1) If the Chief Executive has decided to transfer a child protection order to a participating State under this Division, the Chief Executive must cause— (a) the parents and guardians of the child who is the subject of the order and any other person who is granted access to the child under the order (or an ancillary order); and (b) if the child is of or above 10 years of age, the child, to be served with a notice of the decision as soon as practicable but in any event no later than 3 business days after making it. (2) A notice under subsection (1) must, in addition to providing notice of the decision, give particulars of the rights of review of the decision and of how and when an application for such a review may be made. (3) The notice of the decision must be served personally, but— (a) if it is not practicable to serve the notice personally on a person (not being the child); or (b) if the whereabouts of such a person cannot, after reasonable enquiries, be ascertained, the notice of the decision may be served on that person by post addressed to the person at their last known place of residence or employment or in any other manner authorised by the Court. 183—Review of decision may be sought (1) Any person who is required to be notified of a decision of the Chief Executive to transfer a child protection order to a participating State under this Division may apply to the Court for a review of the decision. (2) An application for review must be lodged with the Court and served on the Chief Executive within 13 business days after the day on which the decision is made. (3) Subject to subsection (2), an application for review must be brought in accordance with the rules of the Court. (4) The lodgment and service of an application in accordance with subsections (2) and (3) operate as a stay of the decision pending the determination of the review. (5) A review is to be conducted by way of a hearing and for that purpose the Court may receive evidence, including, if the Court so determines, evidence given by affidavit. (6) The Court must, on a review, give due weight to the decision being reviewed and the reasons for it and not depart from the decision except for cogent reasons. (7) On a review, the Court may— (a) affirm the decision the subject of the review; or (b) rescind the decision; or (c) rescind the decision and substitute a decision that the Court considers appropriate; or (d) remit the subject matter of the review to the Chief Executive for reconsideration in accordance with any directions or recommendations of the Court, and may make any ancillary or consequential order that the Court considers appropriate. (8) Each party to the proceedings is to bear their own costs unless the Court considers that some other order should be made to do justice between the parties. Division 3—Judicial transfer of child protection order 184—When Court may make order under this Division The Court may make an order under this Division transferring a child protection order to a participating State if— (a) an application for the making of the order is made by the Chief Executive; and (b) the child protection order is not subject to an appeal; and (c) the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the order. 185—Type of order (1) If the Court determines to transfer a child protection order (the home order) under this Division, the Court may, for the purpose of the transfer, vary the terms of the order so that it makes provision for any matter in terms that could be included in a child protection order made under the child welfare law of the participating State and that the Court believes to be— (a) to the same or a similar effect as the terms of the home order; or (b) otherwise in the best interests of the child. (2) In determining whether an order to the same or a similar effect as the home order could be made under the child welfare law of the participating State, the Court must not take into account the period for which it is possible under that law for such an order to be in force. (3) The Court must specify in the transferred order the period for which it is to remain in force. (4) The period must be any period that is possible for a child protection order of the type of the transferred order under the child welfare law of the participating State commencing from the date of its registration in that State and that the Court considers appropriate. 186—Court to have regard to certain matters In determining an application under this Division, the Court must have regard to— (a) whether the Chief Executive or an interstate officer is in the better position to exercise the powers and responsibilities under a child protection order relating to the child; and (b) the desirability of a child protection order being an order under the child welfare law of the State where the child resides; and (c) any information given to the Court by the Chief Executive under section 187. 187—Duty of Chief Executive to inform the Court of certain matters If the Chief Executive is aware that— (a) a sentencing order, other than a fine, is in force in respect of the child who is the subject of an application under this Division; or (b) a criminal proceeding is pending against that child in any court, the Chief Executive must, as soon as possible, inform the Court of that fact and of the details of the sentencing order or pending criminal proceeding. Division 4—Transfer of child protection proceedings 188—When Court may make order under this Division (1) The Court may make an order under this Division transferring a child protection proceeding pending in the Court to the appropriate court in a participating State if— (a) an application for the order is made by the Chief Executive; and (b) the relevant interstate officer has consented in writing to the transfer. (2) The proceeding is discontinued in the Court on the registration of the order in the appropriate court in the participating State in accordance with the interstate law. 189—Court to have regard to certain matters (1) In determining an application to transfer a proceeding under this Division, the Court must have regard to— (a) whether any other proceedings relating to the child are pending, or have previously been heard and determined, under the child welfare law in the participating State; and (b) the place where any of the matters giving rise to the proceeding in the Court arose; and (c) the place of residence, or likely place of residence, of the child, their parents or guardians and any other people who are significant to the child; and (d) whether the Chief Executive or an interstate officer is in the better position to exercise the powers and responsibilities under a child protection order relating to the child; and (e) the desirability of a child protection order being an order under the child welfare law of the State where the child resides; and (f) any information given to the Court by the Chief Executive under subsection (2). (2) If the Chief Executive is aware that— (a) a sentencing order, other than a fine, is in force in respect of the child who is the subject of an application under this Division; or (b) a criminal proceeding is pending against that child in any court, the Chief Executive must, as soon as possible, inform the Court of that fact and of the details of the sentencing order or pending criminal proceeding. 190—Interim order (1) If the Court makes an order transferring a proceeding under this Division, the Court may also make an interim order. (2) An interim order— (a) may make provision for the guardianship, custody or care of the child in such terms as the Court considers to be appropriate; and (b) may give responsibility for the supervision of the child to the interstate officer in the participating State or any other person in that State to whom responsibility for the supervision of a child could be given under the child welfare law of that State; and (c) remains in force for the period (not exceeding 30 days) specified in the order. (3) The appropriate court in the participating State may vary or revoke, or extend the period of, an interim order in accordance with the relevant interstate law. Division 5—Registration of interstate orders and proceedings 191—Filing and registration of interstate documents (1) Subject to subsection (3), the Chief Executive must, as soon as possible, file in the Court for registration a copy of a child protection order transferred to South Australia under an interstate law. (2) Subject to subsection (3), the Chief Executive must, as soon as possible, file in the Court for registration a copy of an order under an interstate law to transfer a child protection proceeding to South Australia, together with a copy of any interim order made at the same time. (3) The Chief Executive must not file in the Court a copy of a child protection order or of an order to transfer a child protection proceeding if— (a) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding (as the case requires) is subject to review or appeal or a stay; or (b) the time for instituting a review or appeal has not expired, under the interstate law. 192—Notification by Registrar The Registrar must immediately notify the appropriate officer of the appropriate court in the sending State and the interstate officer in that State of— (a) the registration of any document filed under section 191; or (b) the revocation under section 194 of the registration of any document so filed. 193—Effect of registration (1) A child protection order registered in the Court under this Division will be taken for all purposes (except for the purposes of appeal) to be a care and protection order of the relevant type made by the Court on the day on which it is registered and it may be varied or revoked, or the period of the order extended, or a breach of it dealt with, under this Act accordingly. (2) An interim order registered in the Court under this Division will be taken for all purposes (except for the purposes of appeal) to be an order made by the Court under this Act on the day on which it is registered and it may be varied, or the period of the order extended, or a breach of it dealt with, accordingly. (3) If an order under an interstate law to transfer a child protection proceeding to South Australia is registered under this Division, the proceeding will be taken to have been commenced in the Court on the day on which the order is so registered. 194—Revocation of registration (1) An application for the revocation of the registration of any document filed under section 191 may be made to the Court by— (b) the child concerned; or (c) a parent or guardian of the child concerned; or (d) a party to the proceeding in the appropriate court in the sending State in which the decision to transfer the order or proceeding (as the case requires) was made. (2) The Registrar must cause a copy of an application under subsection (1) to be given personally or by post as soon as possible to— (a) the relevant interstate officer; and (b) each person (other than the applicant) by whom such an application could have been made. (3) The Court may only revoke the registration of a document filed under section 191 if satisfied that it was inappropriately registered because— (a) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding (as the case requires) was at the time of registration subject to review or appeal or a stay; or (b) the time for instituting a review or appeal had not expired, under the relevant interstate law. (4) The Registrar must cause any document filed in the Court under section 191 to be sent to the appropriate court in the sending State if the registration of the document is revoked under this section. (5) The revocation of the registration of a document does not prevent the later re‑registration of that document. Division 6—Miscellaneous 195—Appeals (1) An appeal against a final order of the Court— (a) if made in a proceeding to transfer a child protection order to a participating State, must be lodged within 10 business days after the day on which the order was made; or (b) if made in a proceeding to transfer a child protection proceeding to the appropriate court in a participating State, must be lodged within 3 business days after the day on which the order was made. (2) An appeal operates as a stay of the order. 196—Effect of registration of transferred order (1) On a child protection order being registered in a participating State under an interstate law, the child protection order made by the Court under this Act ceases to have effect. (2) Despite subsection (1), an order that has ceased to have effect by force of that subsection is revived if the registration of the transferred order is revoked in the participating State under the interstate law. (3) The period for which a child protection order is revived is the balance of the period for which it would have remained in force but for the registration of the transferred order. 197—Transfer of Court file The Registrar must cause all documents filed in the Court in connection with a child protection proceeding to be sent to the appropriate court in a participating State if— (a) the child protection order or proceeding is transferred to the participating State; and (b) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding (as the case requires) is not subject to review or appeal or a stay. 198—Hearing and determination of transferred proceeding In hearing and determining a child protection proceeding transferred to the Court under an interstate law, the Court— (a) is not bound by any finding of fact made in the proceeding in the appropriate court in the sending State before its transfer; but (b) may have regard to the transcript of, or any evidence adduced in, the proceeding referred to in paragraph (a). 199—Disclosure of information (1) Despite anything to the contrary in a prescribed child protection law, the Chief Executive may disclose to an interstate officer any information that has come to the Chief Executive's notice in the performance of functions under a prescribed child protection law if the Chief Executive considers that it is necessary to do so to enable the interstate officer to perform functions under a child welfare law or an interstate law. prescribed child protection law means— (a) this Act; or (b) the Children and Young People (Safety) Act 2017; or (c) the Children's Protection Act 1993; or (d) any other Act prescribed by the regulations. 200—Discretion of Chief Executive to consent to transfer (1) If, under an interstate law, there is a proposal to transfer a child protection order to South Australia, the Chief Executive may consent or refuse to consent to the transfer and the proposed terms of the child protection order to be transferred. (2) If, under an interstate law, there is a proposal to transfer a child protection proceeding to the Court, the Chief Executive may consent or refuse to consent to the transfer. 201—Evidence of consent of relevant interstate officer A document or a copy of a document— (a) purporting to be the written consent of the relevant interstate officer to— (i) the transfer of a child protection order to a participating State and to the proposed terms of the child protection order to be transferred; or (ii) the transfer of a child protection proceeding pending in the Court to the appropriate court in a participating State; and (b) purporting to be signed by the relevant interstate officer or their delegate, is admissible in evidence in any proceeding under this Part and, in the absence of evidence to the contrary, is proof that consent in the terms appearing in the document was duly given by the relevant interstate officer.