8When Court may make order under this Division

8 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 Secretary; and (b) the child protection order is not subject to an appeal to the Supreme Court or the County Court; and (c) the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the child protection order to be transferred. 9 Service of application The Secretary must as soon as possible cause a copy of an application for an order transferring a child protection order to a participating State to be sent by post or given to any person to whom he or she would have been required under Chapter 4 of this Act to send or give a copy of an application made by him or her for the variation of the order sought to be transferred. 10 Type of order (1) If the Court determines to transfer a child protection order (the ***home order***) under this Division, the proposed terms of the child protection order to be transferred (the ***proposed interstate order***) must be terms that could be the terms of 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) The Court may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State. (3) 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 a participating State, the Court must not take into account the period for which it is possible to make such an order in that State. (4) The Court must determine, and specify in the proposed interstate order, the period for which it is to remain in force. (5) The period must be any period that is possible for a child protection order of the type of the proposed interstate order under the child welfare law of the participating State commencing on, and including, the date of its registration in that State and that the Court considers to be appropriate. 11 Court to have regard to certain matters (1) The Court must not make an order under this Division unless it has received and considered a report by the Secretary that contains the matters required by section 558 to be included in a disposition report. (2) In determining what order to make on an application under this Division the Court must have regard to— (a) whether the order is in the best interests of the child; and (b) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and (c) the fact that it is preferable that a child is subject to a child protection order made under the child welfare law of the State where the child resides; and (d) any information given to the Court by the Secretary under clause 12. (3) Section 559 applies to a report referred to in subclause (1) as if it were a disposition report required under section 557(1). Sch. 1 Pt 2 cl. 12 amended by No. 68/2009 s. 87(1)(b). 12 Duty of the Secretary to inform the Court of certain matters If the Secretary is aware that— Sch. 1 Pt 2 cl. 12(a) amended by No. 68/2009 s. 87(1)(b). (a) a sentence under any Act, 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 Secretary must, as soon as possible, inform the Court of that fact and of the details of the sentence or pending criminal proceeding. 13 Appeals (1) A party to an application for an order under this Division or the Attorney-General, if he or she appeared or was represented in the proceeding under section 215(2), may appeal to the Supreme Court, on a question of law, from a final order made in that proceeding transferring, or refusing to transfer, a child protection order to a participating State. (2) An appeal under subclause (1)— (a) must be instituted, and (except where instituted by the Secretary) written notice of it must be served on the Secretary, within 10 working days after the day on which the order complained of was made; and (b) operates as a stay of an order transferring the child protection order to a participating State. (3) Subject to subclause (2), an appeal under subclause (1) must be brought in accordance with the rules of the Supreme Court. (4) The Supreme Court cannot extend the time limit fixed by subclause (2)(a). (5) The Supreme Court must hear and determine the appeal as expeditiously as possible. (6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law. (7) An order made by the Supreme Court on an appeal under subclause (1), other than an order remitting the case for re‑hearing to the Court, may be enforced as an order of the Supreme Court. (8) Pending the hearing of the appeal the Supreme Court may— (a) make any interim accommodation order that the Children's Court has jurisdiction to make; or (b) make any variation of the child protection order that the Children's Court would have jurisdiction to make on an application made under Chapter 4 of this Act. (9) Section 330 applies to an appeal under subclause (1) as if— (a) a reference to section 328 or 329 were a reference to this clause; and (b) references to the County Court were omitted. Part 3—Transfer of child protection proceedings 14 When Court may make order under this Part (1) The Court may make an order under this Part transferring a child protection proceeding pending in the Court to the Children's Court in a participating State if— (a) an application for the making of the order is made by the Secretary; and (b) the relevant interstate officer has consented in writing to the transfer. (2) The proceeding is discontinued in the Court on the registration in the Children's Court in the participating State in accordance with the interstate law of an order referred to in subclause (1). 15 Service of application The Secretary must as soon as possible cause a copy of an application for an order transferring a child protection proceeding to the Children's Court in a participating State to be served on— (b) if the child is of or above the age of 12 years, the child. 16 Court to have regard to certain matters (1) In determining whether to make an order transferring a proceeding under this Part the Court must have regard to— (a) whether the order is in the best interests of the child; and (b) 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 (c) the place where any of the matters giving rise to the proceeding in the Court arose; and (d) the place of residence, or likely place of residence, of the child, his or her parents and any other people who are significant to the child; and (e) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and (f) the fact that it is preferable that a child is subject to a child protection order made under the child welfare law of the State where the child resides; and (g) any information given to the Court by the Secretary under subclause (2). Sch. 1 Pt 3 cl. 16(2) amended by No. 68/2009 s. 87(1)(c). (2) If the Secretary is aware that— Sch. 1 Pt 3 cl. 16(2)(a) amended by No. 68/2009 s. 87(1)(c). (a) a sentence under any Act, other than a fine, is in force in respect of the child who is the subject of the proceeding to which an application under this Part relates; or (b) a criminal proceeding is pending against that child in any court— the Secretary must, as soon as possible, inform the Court of that fact and of the details of the sentence or pending criminal proceeding. 17 Interim order (1) If the Court makes an order transferring a proceeding under this Part, the Court may also make an interim order. (2) An interim order— (a) may release the child or place the child into the care of any person, subject to any conditions that 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 Children's Court in the participating State may revoke an interim order in accordance with the relevant interstate law. 18 Appeals (1) A party to an application for an order under this Part or the Attorney-General, if he or she appeared or was represented in the proceeding under section 215(2), may appeal to the Supreme Court, on a question of law, from a final order made in that proceeding transferring, or refusing to transfer, a child protection proceeding to the Children's Court in a participating State. (2) An appeal under subclause (1)— (a) must be instituted, and (except where instituted by the Secretary) written notice of it must be served on the Secretary, within 3 working days after the day on which the order complained of was made; and (b) operates as a stay of an order transferring the child protection proceeding to a participating State but not of any interim order made at the same time as the order. (3) Subject to subclause (2), an appeal under subclause (1) must be brought in accordance with the rules of the Supreme Court. (4) The Supreme Court cannot extend the time limit fixed by subclause (2)(a). (5) The Supreme Court must hear and determine the appeal as expeditiously as possible. (6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law. (7) An order made by the Supreme Court on an appeal under subclause (1), other than an order remitting the case for re‑hearing to the Court, may be enforced as an order of the Supreme Court. (8) The Supreme Court may— (a) make an order staying the operation of any interim order made at the same time as the order that is the subject of the appeal or may, by order, vary or revoke, or extend the period of, that interim order; and (b) make any interim accommodation order pending the hearing of the appeal that the Children's Court has jurisdiction to make. (9) Section 330 applies to an appeal under subclause (1) as if— (a) a reference to section 328 or 329 were a reference to this clause; and (b) references to the County Court were omitted. Part 4—Registration 19 Filing and registration of interstate documents (1) Subject to subclause (3), the Secretary must as soon as possible file in the Court for registration a copy of a child protection order transferred to Victoria under an interstate law. (2) Subject to subclause (3), the Secretary 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 Victoria, together with a copy of any interim order made in relation to that order. (3) The Secretary 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 appeal or review or a stay; or (b) the time for instituting an appeal or seeking a review has not expired— under the interstate law.