Western Australian Numbered Acts Western Australian Numbered Acts After Part VIII the
following Part is inserted —
“
Part VIIIA — Transfer of child protection orders and proceedings
The purpose of this
Part is to provide for the transfer of child protection orders and proceedings
between this State and another State —
(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.
(1) In this Part,
unless the contrary intention appears —
"child protection order", in relation to a child,
means a final order made under a child welfare law in respect of the child
that gives —
(a) a
Minister of the Crown in right of a State;
(b) a
government department or statutory authority;
(c) a
person who is the chief executive officer (however described) 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 officer (however described) of an
organisation,
responsibility in
relation to the guardianship, custody or supervision of the child, however
that responsibility is described;
"child protection proceeding" means a 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) Part
IV;
(b) a
law of another State that, under an order in force under subsection (2),
is declared to be a child welfare law for the purposes of this Part; or
(c) a
law of another State that substantially corresponds to Part IV;
"Children’s Court", in relation to another
State, means the court with jurisdiction to hear and determine a
child protection proceeding at first instance;
"clerk of the court "means —
(a) in
relation to an application made to the court, the clerk of the court at the
place where the application was made;
(b) in
relation to a document filed in the court, the clerk of the court at the place
where the document was filed; and
(c) in
relation to the revocation by the court of the registration of an order, the
clerk of the court at the place where the registration was revoked;
"home order" means —
(a) an
order made under section 30; or
(b) an
order taken, by operation of section 120U(1), to be an order made under
section 30;
"interim order" means —
(a) an
order made under section 120P; 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 subsection (3),
is declared to be an interstate law for the purposes of this Part; or
(b) a
law of another State that substantially corresponds to this Part;
"interstate officer", in relation to another
State, means —
(a) 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; or
(b) the
holder of an office or position that, under an order in force under
subsection (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 Part;
"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 Part or an interstate
law;
"State" means —
(a) a
State or a Territory; or
(b) New
Zealand;
"working day" means —
(a) in
relation to a court, a day on which the offices of the court are open; and
(b) in
relation to the Director-General, a day on which the principal office of the
Department is open.
(2) The Minister may,
by order published in the Gazette , declare a law of another State to be a
child welfare law for the purposes of this Part if satisfied that the law
substantially corresponds to Part IV.
(3) The Minister may,
by order published in the Gazette , declare a law of another State to be an
interstate law for the purposes of this Part if satisfied that the law
substantially corresponds to this Part.
(4) The Minister may,
by order published in the Gazette , declare an office or position in another
State 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.
Division 2 — Transfer of child protection orders
Subdivision 1 — Administrative transfers
120C. When Director-General may transfer order
(1) The
Director-General may transfer a 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;
(b) the
home order is not subject to an appeal and the time for instituting an appeal
has expired; and
(c) the
relevant interstate officer has consented in writing to the transfer and to
the proposed terms of the order to be transferred (the
"proposed interstate order").
(2) The
Director-General 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 Director-General shall not take into account the period for which it is
possible to make such an order in that State.
(4) The
Director-General shall determine, and specify in the proposed
interstate order, the period for which it is to remain in force.
(5) The period is to
be the lesser of —
(a) the
period for which the home order would have remained in force if it were not
transferred to the relevant participating State; and
(b) the
maximum period for which a child protection order of that type made in the
relevant participating State could remain in force.
120D. Director-General to have regard to certain
matters
In determining whether
to transfer a home order to a participating State, the Director-General shall
have regard to —
(a)
whether the Director-General or an interstate officer is in the better
position to exercise 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.
120E. Notification of decision to transfer
(1) If the
Director-General has decided to transfer a home order to a
participating State, the Director-General shall cause notice of the decision
to be given to —
(a) the
child if the child has reached 10 years of age unless the
Director-General considers that the child is not sufficiently mature to
understand the transfer and its consequences;
(b) the
child’s parents; and
(c) any
other person considered by the Director-General to have a direct interest in
the care, welfare or development of the child,
as soon as practicable
but in any event no later than 3 working days after the decision was
made.
(2) A notice under
subsection (1) is to —
(a)
state the date of the decision; and
(b)
state that a person who wishes to apply to the Supreme Court for judicial
review of the decision shall institute the proceeding, and give written notice
of it to the Director-General, within 21 working days after the date of the
decision.
(3) Notice is not
required to be given to a person under subsection (1) if it cannot be
given after all reasonable efforts.
120F. Limited period for review of decision
(1) A proceeding in
the Supreme Court for judicial review of a decision of the Director-General to
transfer a home order to a participating State shall be instituted, and
written notice of it shall be given to the Director-General, within
21 working days after the date of the decision.
(2) The Supreme Court
cannot extend the time fixed by subsection (1).
(3) Subject to
subsections (1) and (2), a proceeding referred to in subsection (1) shall
be brought in accordance with the Supreme Court’s rules of court.
(4) The institution of
a proceeding referred to in subsection (1) and the giving of written
notice of it to the Director-General stays the operation of the decision
pending the determination of the proceeding.
Subdivision 2 — Judicial transfers
120G. When court may transfer order
The court may make an
order transferring a home order to a participating State if —
(a) an
application for the making of the order is made by the Director-General;
(b) the
home order is not subject to an appeal and the time for instituting an appeal
has expired; and
(c) the
relevant interstate officer has consented in writing to the transfer and to
the proposed terms of the order to be transferred.
The Director-General
shall, as soon as possible after making an application referred to in
section 120G(a), cause a copy of it to be given to —
(a) any
person who was a party to the proceedings in which the home order to be
transferred was made; and
(b) any
other person considered by the Director-General to have a direct interest in
the care, welfare or development of the child.
120I. Court to have regard to certain matters
In determining what
order to make on an application under this Subdivision the court shall have
regard to —
(a)
whether the Director-General or an interstate officer is in the better
position to exercise 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.
(1) If the court
determines to transfer a home order to a participating State, the proposed
terms of the order to be transferred (the "proposed interstate order” )
shall 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 shall not
take into account the period for which it is possible to make such an order in
that State.
(4) The court shall
determine, and specify in the proposed interstate order, the period for which
it is to remain in force.
(5) The period shall
not be longer than the maximum period for which a child protection order of
that type made in the relevant participating State could remain in force.
120K. Court shall consider report from the
Director-General
The court shall not
make an order under section 120G in relation to a child unless it has
received and considered a report from the Director-General regarding the
child.
(1) A party to an
application for an order under section 120G 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 home order to a participating State.
(2) An appeal under
subsection (1) —
(a)
shall be instituted, and (except where instituted by the Director-General)
written notice of it shall be given to the Director-General, within 10
working days after the day on which the order appealed from was made; and
(b)
operates as a stay of the order.
(3) The Supreme Court
cannot extend the time fixed by subsection (2)(a).
(4) Subject to
subsections (2) and (3), an appeal under subsection (1) shall be brought
in accordance with the Supreme Court’s rules of court.
(5) The Supreme Court
shall hear and determine the appeal as expeditiously as possible.
(6) Pending the
determination of the appeal, the Supreme Court may make any order that the
court can make under section 29(3aa).
(7) On determining the
appeal, the Supreme Court may make such order as it thinks appropriate,
including an order remitting the case for rehearing to the court with or
without any direction in law.
(8) An order made by
the Supreme Court on an appeal under subsection (1), other than an order
remitting the case for rehearing to the court, may be enforced as an order of
the Supreme Court.
Division 3 — Transfer of child protection proceedings
120M. When court may make order under this
Division
(1) The court may make
an order 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 Director-General; 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 subsection (1).
The Director-General
shall, as soon as possible after making an application referred to in
section 120M(1)(a), cause a copy of it to be given to —
(a) each
party to the child protection proceeding the subject of the application; and
(b) any
other person considered by the Director-General to have a direct interest in
the care, welfare or development of the child.
120O. Court to have regard to certain matters
(1) In determining
whether to make an order under section 120M(1) the court shall 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;
(b) the
place where any of the matters giving rise to the proceeding in the court
arose;
(c) the
place of residence, or likely place of residence, of the child, the
child’s parents and any other people who are significant to the child;
(d)
whether the Director-General or an interstate officer is in the better
position to exercise powers and responsibilities under a
child protection order relating to the child;
(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 under subsection (2).
(2) If the
Director-General is aware that —
(a) a
sentence or order imposed under the Sentencing Act 1995 or the
Young Offenders Act 1994 , other than a fine, is in force in respect of
the child who is the subject of the proceeding to which an application
referred to in section 120M(1)(a) relates; or
(b) a
criminal proceeding is pending against that child in any court,
the Director-General
shall, as soon as possible, inform the court of that fact and of the details
of the sentence, order or pending criminal proceeding.
(1) If the court makes
an order under section 120M(1), the court may also make an interim order.
(2) An
interim order —
(a) may
place the child in 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.
(3) An interim order
remains in force for the period (not exceeding 30 days) specified in the
order.
(4) The
Children’s Court in the participating State may vary or revoke, or
extend the period of, an interim order in accordance with the relevant
interstate law.
(1) A party to an
application for an order under section 120M(1) 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 a
participating State.
(2) An appeal under
subsection (1) —
(a)
shall be instituted, and (except where instituted by the Director-General)
written notice of it shall be given to the Director-General, within 10
working days after the day on which the order appealed from was made; and
(b)
operates as a stay of the order but not of any interim order made at the same
time as the order.
(3) The Supreme Court
cannot extend the time fixed by subsection (2)(a).
(4) Subject to
subsections (2) and (3), an appeal under subsection (1) shall be brought
in accordance with the Supreme Court’s rules of court.
(5) The Supreme Court
shall hear and determine the appeal as expeditiously as possible.
(6) On determining the
appeal, the Supreme Court may make such order as it thinks appropriate,
including an order remitting the case for rehearing to the court with or
without any direction in law.
(7) An order made by
the Supreme Court on an appeal under subsection (1), other than an order
remitting the case for rehearing to the court, may be enforced as an order of
the Supreme Court.
(8) The Supreme Court
may —
(a) if
an interim order was made at the same time as the order appealed from, make an
order —
(i)
staying the operation of the interim order;
(ii)
varying or revoking the interim order; or
(iii)
extending the period of the interim order;
and
(b) make
any order pending the determination of the appeal that the court can make
under section 29(3aa).
120R. Filing of interstate orders in the court
(1) Subject to
subsection (3), the Director-General shall, as soon as possible, file in
the court a copy of a child protection order transferred to this State under
an interstate law.
(2) Subject to
subsection (3), the Director-General shall, as soon as possible, file in
the court a copy of an order under an interstate law to transfer a
child protection proceeding to this State, together with a copy of any
interim order made at the same time.
(3) The
Director-General shall not file in the court a copy of a child
protection order or of an order to transfer a child protection proceeding if,
under the interstate law —
(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.
120S. Registration of interstate orders
If the
Director-General files a copy of an order in the court under
section 120R, the clerk of the court shall register the order.
120T. Notification by clerk of court
The clerk of the court
shall immediately notify the appropriate officer of the Children’s Court
in the sending State and the interstate officer in that State of —
(a) the
registration of an order under section 120S; or
(b) the
revocation under section 120V of the registration of an order.
(1) A
child protection order registered in the court under section 120S is to be
taken for all purposes (except for the purposes of appeal) to be an order made
by the court under section 30 on the day on which the order is
registered, and the provisions of Part IV apply accordingly.
(2) An interim order
registered in the court under section 120S is to be taken for all
purposes (except for the purposes of appeal) to be an order made by the court
under section 29(3aa) on the day on which the order is registered, and
the provisions of Part IV apply accordingly.
(3) If an order under
an interstate law to transfer a child protection proceeding to this State is
registered under section 120S, the proceeding is to be taken to have been
commenced in the court, under Part IV, on the day on which the order is
registered.
120V. Revocation of registration
(1) An application for
the revocation of the registration of an order under section 120S may be
made to the court by —
(a) the
Director-General;
(b) the
child concerned;
(c) a
parent of the child concerned; or
(d) a
party to the proceeding in the Children’s Court in the sending State in
which the decision to transfer the order or proceeding (as the case requires)
was made.
(2) The
clerk of the court shall cause a copy of an application made under
subsection (1) to be given as soon as possible to —
(a) the
relevant interstate officer; and
(b) any
person by whom the application could have been made.
(3) The court may only
revoke the registration of an order if satisfied that it was inappropriately
registered because, under the interstate law —
(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 appeal or review or a stay; or
(b) the
time for instituting an appeal or seeking a review had not expired.
(4) If the
registration of an order is revoked, the clerk of the court shall cause the
copy of the order to be sent to the Children’s Court in the
sending State.
(5) The revocation of
the registration of an order does not prevent the later re-registration of
that order.
120W. Effect of registration of transferred order
(1) In this
section —
"transferred order" "" means a
child protection order transferred to a participating State under
section 120C(1) or 120G.
(2) A home order
ceases to have effect on the registration of the transferred order under an
interstate law of the participating State.
(3) A home order that
has ceased to have effect under subsection (2) is revived if the
registration of the transferred order is revoked under an interstate law of
the participating State.
(4) The period for
which a home 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.
The clerk of the court
shall cause all documents filed in the court in connection with a
child protection proceeding, and an extract from any part of the register that
relates to a child protection proceeding, to be sent to the Children’s
Court in a participating State if, under this Part —
(a) the
child protection order or proceeding is transferred to the
participating State;
(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 appeal or review or a stay; and
(c) the
time for instituting an appeal or seeking a review has expired.
120Y. 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
Children’s Court in the sending State before its transfer; and
(b) may
have regard to the transcript of, or any evidence adduced in, the proceeding
referred to in paragraph (a).
120Z. Disclosure of information
(1) Despite anything
to the contrary in this Act, the Director-General may disclose to an
interstate officer any information that has come to his or her notice in the
performance of duties or exercise of powers under this Act if the
Director-General considers that it is necessary to do so to enable the
interstate officer to perform duties or exercise powers under a child welfare
law or an interstate law.
(2) Any information
disclosed to the Director-General under a provision of a child welfare law or
an interstate law that substantially corresponds to subsection (1) is to
be taken for the purposes of any provision of this Act relating to the
disclosure of information to have been information given directly to the
Director-General instead of to an interstate officer.
120ZA. Discretion of Director-General to consent
to transfer
(1) If, under an
interstate law, there is a proposal to transfer a child protection order to
this State, the Director-General 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 Director-General may consent or refuse to consent to the
transfer.
120ZB. Evidence of consent of relevant
interstate officer
A document or 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 Children’s Court in a participating State;
and
(b)
purporting to be signed by the relevant interstate officer or his or her
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.
”.
By Authority:
JOHN A. STRIJK, Government Printer