38ZCourt may make orders pending making of supervision order

38Z Court may make orders pending making of supervision order If the Children's Court declares a child liable to supervision, the court may make any one or more of the following orders pending the making of a supervision order— (c) any other order the court thinks appropriate. S. 38ZAA 38ZAA Appeal against unconditional release S. 38ZAA(1) amended by Nos 3/2016 s. 102, 1/2022 s. 83. (1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against an order for unconditional release under section 38Y(4)(b) if he or she considers that— (2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made. (3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally. (4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed. (5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the special hearing, if that legal practitioner can reasonably be identified. (8) On an appeal under subsection (1), the appellate court may— (b) set aside the order and by order declare that the child is liable to supervision under Division 5. (9) The appellate court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including— (a) whether supervision is available in the community; and (10) If the appellate court declares a child liable to supervision, the appellate court may— (a) remit the matter, with or without directions, to the Children's Court; or (b) make a supervision order in respect of the child. (11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the child in accordance with this Act and any directions given by the appellate court. (12) The appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child pending the making of a supervision order in respect of the child. Division 4—Defence of mental impairment S. 38ZA 38ZA Defence of mental impairment (1) The defence of mental impairment is established for a child charged with an offence if, at the time of engaging in conduct constituting the offence, the child was suffering from a mental impairment that had the effect that— (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). (2) If the defence of mental impairment is established, the child must be found not guilty because of mental impairment. S. 38ZB 38ZB Presumptions, standard of proof etc. (1) A child is presumed not to have been suffering from a mental impairment having the effect referred to in section 38ZA(1) until the contrary is proved. (2) The question whether a child was suffering from a mental impairment having the effect referred to in section 38ZA(1)— (b) is to be determined on the balance of probabilities. (3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption. (4) If the defence intends to raise the question of mental impairment, the defence must give reasonable notice of that intention to the prosecution. S. 38ZC 38ZC When may the question of mental impairment be raised? (1) The question of mental impairment may be raised at any time during a hearing by the defence or, with the leave of the Children's Court, by the prosecution. S. 38ZC(2) repealed by No. 5/2025 s. 54. S. 38ZD 38ZD Effect of finding of not guilty because of mental impairment (1) If a child is found not guilty because of mental impairment of an indictable offence heard and determined summarily in the Children's Court, the court must— (a) declare that the child is liable to supervision under Division 5; or (b) order the child to be released unconditionally. (2) The Children's Court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including— (a) whether adequate supervision is available in the community; and (3) The Children's Court must not order a child to be released unconditionally unless the court is satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability. (4) The Children's Court may adjourn a hearing to enable evidence of the matters referred to in subsections (2) and (3) to be obtained. S. 38ZE 38ZE Appeal against mental impairment finding S. 38ZE(1) amended by Nos 3/2016 s. 103, 1/2022 s. 84. (1) In a criminal proceeding in the Children's Court, if a finding of not guilty because of mental impairment is recorded against a child, the child may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against the finding on any ground of appeal. (2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the finding is made. (3) A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed. (4) A notice of appeal must be in the form prescribed by the rules of the appellate court. (5) The Children's Court must transmit a notice of appeal filed under this section to the appellate court. (6) On an appeal under subsection (1), the appellate court must allow the appeal if the child satisfies the court that— (a) the finding of the Children's Court is unreasonable or cannot be supported having regard to the evidence; or (b) as a result of an error or an irregularity in, or in relation to, the hearing there has been a substantial miscarriage of justice; or (c) for any other reason there has been a substantial miscarriage of justice. (7) Despite subsection (6), the appellate court may dismiss an appeal that would otherwise be allowed under that subsection if— (a) none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and (b) the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged. (8) In any other case, the appellate court must dismiss an appeal under subsection (1). (9) If the appellate court— (a) allows an appeal under subsection (1) on a ground that the finding of not guilty because of mental impairment ought not to stand; and (b) considers that the proper finding would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict— the appellate court must substitute for the finding a finding of guilty of that offence and may make any order, or exercise any power, that the Children's Court could have made or exercised. (10) Subject to subsection (9), if the appellate court allows an appeal under subsection (1), it must set aside the finding and either— (a) enter a finding of not guilty of the offence charged; or (b) order a new trial. (11) If the appellate court orders a new trial, it may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child. S. 38ZF 38ZF Appeal against unconditional release S. 38ZF(1) amended by Nos 3/2016 s. 104, 1/2022 s. 85. (1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against an order for unconditional release under section 38ZD(1)(b) if he or she considers that— (2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made. (3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally. (4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed. (5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the proceeding to which the appeal relates, if that legal practitioner can reasonably be identified. (8) On an appeal under subsection (1), the appellate court may— (b) set aside the order and by order declare that the child is liable to supervision under Division 5. (9) The appellate court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including— (a) whether supervision is available in the community; and (10) If the appellate court declares a child liable to supervision, the appellate court may— (a) remit the matter, with or without directions, to the Children's Court; or (b) make a supervision order in respect of the child. (11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the appellate court. (12) The appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child pending the making of a supervision order in respect of the child. Division 5—Disposition of children declared to be liable to supervision S. 38ZG inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48), repealed by No. 32/2024 s. 793. S. 38ZH 38ZH Supervision orders (1) If the Children's Court declares that a child is liable to supervision under this Division, the court must make a supervision order in respect of the child. (2) The purpose of a supervision order is to ensure that a child receives treatment, support, guidance and assistance for the child's mental impairment or other condition or disability. (3) A custodial supervision order has an additional purpose of protecting the child or the community while the child receives the treatment, support, guidance and assistance referred to in subsection (2). (4) A child may be subject to a custodial supervision order only for as long as is required for the protection of the child or the community. (5) A supervision order may— (a) commit the child to custody (***custodial supervision order***); or (b) release the child on conditions decided by the Children's Court and specified in the order (***non‑custodial supervision order***). (6) The Children's Court must not make a supervision order unless it has received— (a) a report under Division 6 as to supervision; and (b) a certificate under section 47 stating that the facilities or services necessary for the supervision order are available. (7) The Children's Court must not make a custodial supervision order unless the court finds that— (a) there is no practicable alternative in the circumstances; and (b) the order is required for the protection of the child or the community. S. 38ZI 38ZI How long does a supervision order last? (1) A supervision order is for a term not exceeding 6 months that is specified by the Children's Court. (2) When making a supervision order, the Children's Court must direct that the matter be brought back to the court for review at the end of the period specified by the court. The court's powers on review are contained in section 38ZO (for custodial supervision orders) and section 38ZP (for non‑custodial supervision orders). (3) The term of a supervision order may be extended more than once by a maximum of 6 months but so that the total period of the order (including custodial supervision orders and non-custodial supervision orders) does not exceed— S. 38ZI(3)(a) amended by No. 32/2024 s. 794(a). (a) in the case of a child who is under 15 years of age at the time of the making of the supervision order, 12 months; and S. 38ZI(3)(b) amended by No. 32/2024 s. 794(b). (b) in the case of a child who is 15 years of age or over but under 21 years of age at the time of the making of the supervision order, 24 months. S. 38ZJ 38ZJ Appeal against supervision order S. 38ZJ(1) amended by Nos 3/2016 s. 105, 1/2022 s. 86. (1) A child in respect of whom a supervision order is made may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against the supervision order. S. 38ZJ(2) amended by Nos 15/2015 s. 37(12)(a), 3/2016 s. 105, 1/2022 s. 86. (2) The Director of Public Prosecutions, the Attorney‑General or the Secretary to the Department of Health and Human Services may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against a supervision order if he or she considers that— (a) a different supervision order should have been made; and (3) An appeal under this section is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made. (4) If the appeal is commenced by a child in respect of whom a supervision order is made, a copy of the notice of appeal must be served on the respondent in accordance with section 392 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed. S. 38ZJ(5) amended by No. 15/2015 s. 37(12)(b). (5) If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney‑General— (b) a copy of the notice of appeal must be served personally on the child in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed; and (c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified. (8) On an appeal under this section, the appellate court may— (b) set aside the supervision order and make another supervision order in substitution for it; or (c) set aside the supervision order and remit the matter, with or without directions, to the Children's Court; or (d) set aside the supervision order and order the child who was subject to the supervision order to be released unconditionally. (9) If the appellate court remits a matter to the Children's Court under subsection (8)(c), the Children's Court must make another supervision order in accordance with this Act and any directions given by the appellate court. (10) The appellate court may make any one or more of the following orders pending the making of a supervision order in respect of a child under this section— (c) if it is of the opinion that it is in the interests of justice to do so, an order— (i) that the child undergo an examination by a registered medical practitioner or registered psychologist; and (d) any other order the court thinks appropriate. S. 38ZK 38ZK Non-compliance with non-custodial supervision order S. 38ZK(1) amended by No. 15/2015 s. 37(13). (1) A person having the supervision of a child under a non-custodial supervision order (***the supervisor***), the Secretary to the Department of Health and Human Services may apply to the Children's Court for a variation of the order if it appears to the supervisor, the Secretary to the Department of Health and Human Services that the child has failed to comply with the order. (2) The Children's Court may order that a warrant to arrest be issued against the child subject to the non-custodial supervision order if the child does not attend before the court on the hearing of the application. S. 38ZK(3) amended by No. 6/2018 s. 68(Sch. 2 item 36.1). (3) If the Children's Court is satisfied by evidence on oath or by affirmation or by affidavit, or by the admission of the child subject to the non‑custodial supervision order that the child has failed to comply with the order, the court must, by order— (c) vary the order to a custodial supervision order. Section 47 requires that a certificate under that section be provided before a court makes a custodial supervision order. (4) If the Children's Court varies a non-custodial supervision order to a custodial supervision order before the end of the term of the order, that term continues to run. S. 38ZL 38ZL Emergency power of apprehension (1) A child subject to a non-custodial supervision order may be apprehended by an appropriate person if the appropriate person reasonably believes— (a) that the child has failed to comply with the order; and (b) that the safety of the child or members of the public will be seriously endangered if the child is not apprehended. (2) Subject to subsection (4), a child who is apprehended under subsection (1) is to be detained in custody and, if necessary, treated or provided with services for his or her condition. (3) For the purpose of apprehending a child and taking them to a place of detention, the appropriate person may with such assistance as is required and such force as may be reasonably necessary— (a) enter any premises in which he or she has reasonable grounds for believing that the child may be found; and (b) if necessary to enable that child to be apprehended and taken safely, use any restraint that may be reasonably necessary. (4) A child who is apprehended under this section must be released from detention within 48 hours unless, within that period, an application is made under section 38ZK(1) for variation of the child's supervision order. (5) The Children's Court must hear an application referred to in subsection (4) as soon as possible. (6) In this section— S. 38ZL(6) def. of *appropriate person* amended by No. 55/2014 s. 155(2). ***appropriate person***, in relation to a child subject to a supervision order, means— (a) a person having supervision of the child under the order; or (b) a police officer; or (c) an ambulance officer; or (d) a person who is a member of a class prescribed for the purposes of this section. S. 38ZM 38ZM Warrant to arrest child breaching non-custodial supervision order who leaves Victoria S. 38ZM(1) amended by No. 15/2015 s. 37(13). (1) If at any time it appears to a person having supervision of a child under a non-custodial supervision order, the Secretary to the Department of Health and Human Services that the child— (a) has failed to comply with the order; and the person having supervision, the Secretary to the Department of Health and Human Services may apply to the Children's Court for a warrant to arrest the child. S. 38ZM(2) amended by No. 6/2018 s. 68(Sch. 2 item 36.1). (2) If the Children's Court is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in subsection (1)(a) and (b), the court may order that a warrant to arrest be issued against the child. (3) When a child arrested under a warrant issued under this section is returned to Victoria, he or she is to be detained in custody and treated or provided with services, if necessary, for his or her condition. (4) Despite subsection (3), a child must be released from detention within 48 hours unless, within that period, an application is made under section 38ZK(1) for variation of the child's supervision order. (5) The Children's Court must hear an application referred to in subsection (4) as soon as possible. **Notes** 1 Section 498(1) of the **Children, Youth and Families Act 2005** provides an offence of being absent without lawful authority from a youth justice centre or a youth residential centre. Section 498(2) and (3) of that Act provide for apprehension without warrant and the issue of a search warrant. Note 2 to s. 38ZM amended by No. 39/2022 s. 816. 2 Section 563 of the **Mental Health and Wellbeing Act 2022** provides for a warrant to arrest a security patient absent without leave who leaves Victoria. S. 38ZN 38ZN Application for variation or revocation of supervision order (1) Any of the following may apply to the Children's Court for a variation of a custodial supervision order or a variation or revocation of a non-custodial supervision order— (a) the child subject to the order; (b) a person having the custody, care, control or supervision of that child; (c) the Chief Commissioner of Police. (2) If the Children's Court refuses an application under this section by a child who is subject to a custodial supervision order, the court may order that a later application cannot be made by that child until the next review of the order by the court. S. 38ZO 38ZO Variation of custodial supervision orders on application or review (1) On an application under section 38ZN for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 38ZI(2) or on a further review of a custodial supervision order directed under subsection (3) or section 38ZP(2), the Children's Court must, by order— (b) vary the place of custody; or (c) subject to this section, vary the order to a non-custodial supervision order. (2) The Children's Court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the child subject to the order or members of the public will not be seriously endangered as a result of the release of the child on a non-custodial supervision order. S. 38ZO(3) amended by No. 3/2016 s. 107. (3) TheChildren's Court may direct that the matter be brought back to the court for further review at the end of the period not exceeding 6 months specified by the court. S. 38ZP 38ZP Variation or revocation of non-custodial supervision orders on application or review (1) On an application under section 38ZN for variation or revocation of a non-custodial supervision order or on a review of a non‑custodial supervision order directed under section 38ZI(2) or on a further review of a non‑custodial supervision order directed under subsection (2) or section 38ZO(3), the Children's Court must, by order— (c) vary the order to a custodial supervision order; or (d) revoke the order. (2) Unless the Children's Court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period not exceeding 6 months specified by the court. S. 38ZQ 38ZQ Transfer of supervision order for review by County Court (1) The Children's Court may order that a supervision order made under this Division be transferred to the County Court for review if the person subject to the supervision order is or will be of or above the age of 19 years at the date specified by the Children's Court for review of the supervision order. (2) Section 38ZN applies to a supervision order transferred under subsection (1) as if a reference to the Children's Court were a reference to the County Court. (3) On an application under section 38ZN for variation of a supervision order transferred under subsection (1) or on a review of a supervision order transferred under subsection (1), the County Court has and may exercise all the powers and authorities that the Children's Court has under this Division. Division 6—Reports as to supervision and victim impact statements S. 38ZR inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48), amended by No. 20/2015 s. 35. 38ZR Court must order report as to supervision If the Children's Court declares that a child is liable to supervision under Division 5, the court— (a) must, before making a supervision order, order that a report under this Division as to supervision be submitted in respect of the child and adjourn the hearing to enable the report to be prepared; and (b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the date to which the hearing is adjourned. S. 38ZS inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48), substituted by No. 15/2015 s. 34. 38ZS Report to be prepared and filed The Secretary to the Department of Health and Human Services must— (a) arrange to have prepared a report referred to in section 38ZR; and (b) file the report with the court that declared that the child is liable to supervision under Division 5. S. 38ZT 38ZT Contents of report (1) A report must set out the following matters— (a) whether the child has a mental impairment or other condition or disability and, if so, specify the services which are available and appropriate for the child; (b) the services currently being made available to the child, whether or not by a government department, and whether the child has complied with those services; S. 38ZT(1)(c) amended by No. 20/2015 s. 36. (c) if the Children's Court so requests, the services that would be made available to the child if a custodial supervision order were to be made in respect of the child. (2) The author of a report may include in the report a recommendation as to whether a non-custodial supervision order or a custodial supervision order is appropriate for the child who is the subject of the report. S. 38ZT(3) amended by No. 15/2015 s. 37(14). (3) If the Secretary to the Department of Health and Human Services has issued a statement in respect of the child that the child has an intellectual disability within the meaning of the **Disability Act 2006**, a report must include a copy of the statement. (4) Division 1 of Part 7.8 of Chapter 7 of the **Children, Youth and Families Act 2005** applies, with any necessary modifications, to a report under this Division. S. 38ZU 38ZU Report to be filed with court A report must be filed at least 3 working days before the return date with— (a) the registrar of the Children's Court at the venue of the court at which the order was made; or (b) in the case of an appeal under section 38ZF, the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires). S. 38ZV 38ZV Access to reports (1) The author of a report must, within the period referred to in section 38ZU, send a copy of the report to— (a) the child who is the subject of the report; and (b) the legal practitioners representing the child; and (c) any other person whom the court has ordered is to receive a copy of the report. (2) The author of a report is not required to send copies of the report in accordance with subsection (1)(a) or (c) if— (a) he or she is of the opinion that information contained in the report may be prejudicial to the physical or mental health of the child; or (b) the child notifies him or her that the child objects to the forwarding of copies of the report. (3) If because of subsection (2) the author of a report is not required to send a copy of the report to a person, the author may send to that person a copy of part of the report. (4) If because of subsection (2) the author of a report does not send copies of the report in accordance with subsection (1)(a) or (c)— (a) the author must inform the registrar referred to in section 38ZU(a), the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires) of that fact; and (b) the Children's Court, the Trial Division of the Supreme Court or the County Court (as the case requires) may by order direct the registrar or prothonotary to forward a copy of the report, or a specified part of the report, together with a copy of the order, to a person named or described in the order as soon as possible and before the hearing. S. 38ZW 38ZW Victim impact statements S. 38ZW(1) amended by No. 20/2015 s. 37. (1) Before the Children's Court makes a supervision order under section 38ZH or varies or revokes a supervision order under section 38ZO or 38ZP, a victim of the offence may make a victim impact statement to the court for the purpose of assisting the court in determining any conditions it may impose on the supervision order. (2) Sections 359, 359A and 359B of the **Children, Youth and Families Act 2005** apply to victim impact statements under this section.