Sch 1Transfer of child protection orders and proceedings

Schedule 1—Transfer of child protection orders and proceedings Sections 338, 515, 525, 531 Part 1—Introductory 1 Purpose of Schedule The purpose of this Schedule is to provide for the transfer of child protection orders and proceedings between Victoria and another State or a Territory of Australia or between Victoria 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. 2 Definitions (1) In this Schedule— ***Children's Court***— (a) in relation to Victoria, means the Children's Court of Victoria; and (b) in relation to a State other than Victoria, means the court with jurisdiction to hear and determine a child protection proceeding at first instance; ***child protection order***, in relation to a child, means a final order made under a child welfare law or an interstate law that gives— (a) a Minister of the Crown in right of a State; or (b) a government department or statutory authority; or (c) a person who is the head 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 (d) an organisation or the chief executive (by whatever name called) of an organisation— 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 under the child welfare law a prerequisite 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) Chapter 4 of this Act; or (b) a law of another State that, under an Order in force under subclause (2), is declared to be a child welfare law for the purposes of this Schedule; or (c) a law of another State that substantially corresponds to Chapter 4 of this Act; ***interim order*** means— (a) an order made under clause 17; or (b) an equivalent order made under an interstate law; ***interstate law*** means— (a) a law of another State that, under an Order in force under subclause (3), is declared to be an interstate law for the purposes of this Schedule; or (b) a law of another State that substantially corresponds to this Schedule; ***interstate officer***, in relation to a State other than Victoria, means— (a) the holder of an office or position that, under an Order in force under subclause (4), is declared to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Schedule; 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; ***sending State*** means the State from which a child protection order or proceeding is transferred under this Schedule or an interstate law; ***State*** means— (a) a State or a Territory of Australia; or (b) New Zealand; ***working day***— (a) in relation to a court, means a day on which the offices of the court are open; and (b) in relation to the Secretary, means a day on which the principal office of the Department is open. (2) The Governor in Council, by Order published in the Government Gazette, may declare a law of a State (other than Victoria) to be a child welfare law for the purposes of this Schedule if satisfied that the law substantially corresponds to Chapter 4 of this Act. (3) The Governor in Council, by Order published in the Government Gazette, may declare a law of a State (other than Victoria) to be an interstate law for the purposes of this Schedule if satisfied that the law substantially corresponds to this Schedule. (4) The Governor in Council, by Order published in the Government Gazette, may declare an office or position in a State (other than Victoria) to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Schedule. Part 2—Transfer of child protection orders Division 1—Administrative transfers 3 When Secretary may transfer order (1) The Secretary may transfer a child protection order (the ***home order***) to a participating State if— (a) in his or her 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 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 (the ***proposed interstate order***); and (d) any person whose consent to the transfer is required under clause 4 has so consented; and (e) the child who is the subject of the order has not given written notice of opposition to the decision to transfer the order in accordance with clause 6(3)(b) and the Secretary certifies in writing that he or she made all reasonable efforts to ensure that the child had an opportunity to seek legal advice in relation to the decision. (2) The Secretary 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 a child protection 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 Secretary must not take into account the period for which it is possible to make such an order in that State. (4) The Secretary must determine, and specify in the proposed interstate order— (a) the type of order under the child welfare law of the participating State that the proposed interstate order is to be; and (b) the period for which it is to remain in force. (5) The period must be— (a) if the same period as that of the home order is possible for the proposed interstate order under the child welfare law of the participating State commencing on, and including, the date of the registration of the interstate 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.