Introduction to State family guidelines
9.1.1 Legislative amendments – Permanent care reforms
On 1 March 2016, the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 and Children, Youth and Families Amendment (Restrictions on the making of Protection Orders) Act 2015 came into effect.
This legislation amends the Children, Youth and Families Act 2005 (Act). Some of the changes include:
- a ;
- a new ‘legislated timeframe’ of up to two years to achieve reunification - with the Children’s Court no longer having the power to make an order that aims for reunification where a child has been in court-ordered out-of-home care beyond two years (cumulative, not concurrent). This is measured from the time a child was last at home without any court order in place. The operation of the new timeline is explained further in the definition of ‘legislated timeframe’
- giving the Department of Health and Human Services (DHHS) full discretion to determine questions of placement of a child, including in circumstances where there has been a breakdown in the child’s placement or a new placement is proposed
- allowing DHHS to extend an out-of-home care order for a further 12 months without bringing the matter back to Children’s Court. Instead of a court review, administrative review will be available via an internal DHHS case plan review process. An external review of a DHHS case plan decision can then be pursued via application to the Victorian Civil and Administrative Tribunal (VCAT)
These legislative amendments significantly change the way child protection matters are handled by DHHS and the Children’s Court (Family Division), with court oversight substantially reduced.
9.1.2 Guideline amendments
VLA has completed undertaking a comprehensive review of child protection legal aid services (‘Review’). The Review considered the efficiency, effectiveness and quality of the child protection legal service delivery model to ensure VLA is funding an appropriate service mix and that those services target the right people, at the right intensity and at the right time. The Review includes consideration of legal aid funding guidelines.
From 1 March 2016, the State Family Guidelines were amended as overviewed below. The revisions largely focus on ‘substitute’ changes, required for clients to continue to receive the same or similar level of legal aid assistance notwithstanding the legislative amendments, until the outcomes of the Review are implemented. Note: The following is only an overview of the material changes made to the guidelines. Lawyers should refer to Chapter 6 of the VLA Handbook for the full, updated State Family Guidelines.
- The criteria for funding protection application matters has changed to require a parent to have reasonable prospects of the child being placed in their care, in place of the previous requirement for a parent to be ‘seeking to retain or regain primary care of the child in a protection application proceeding’ (guideline 2.1)
- There is a new ground for funding interim accommodation order contested hearings - where a parent is seeking a condition for time with the child, and that parent has reasonable prospects of the child being placed in their care within the legislated timeframe (guideline 2.3)
- There is a new guideline to clarify that legal aid may be granted to a child or parent to appeal, or respond to an appeal against, an interim accommodation order - where there are reasonable prospects of the child being immediately placed in the care of a parent and, where it is a parent applicant, that parent has reasonable prospects of the child being placed in their care (guideline 3)
- To replace legal aid funding that was previously available for court review proceedings at the 12-month mark, there are new guidelines to fund requests for an internal DHHS administrative review of a case plan decision and, where unsuccessful, an external VCAT review of a case plan decision in limited circumstances:
- For parent applicants, this is limited to where there is a Children’s Court order with the objective of reunification but the case plan is not adequately supporting reunification, and there are reasonable prospects of the case plan being changed and of reunification within the legislated timeframe (guidelines 4.1.1 and 4.2.1)
- For child applicants, in addition to the above guideline 4.1.1 and 4.2.1 criteria, legal aid may also be granted where there is a protection order placing the child out of the parents’ care and there has been a change in placement. But this must be in circumstances where there are reasonable prospects of demonstrating that the change was not in the child’s best interests (or was inconsistent with the need to protect the child from harm or to protect their rights and to promote their development), as well as reasonable prospects of an alternative feasible placement (guidelines 4.1.2. and 4.2.2)
- There is a new guideline that expands funding to assist a child or parent to initiate, or respond to, an application to revoke a family reunification order in circumstances where there are reasonable prospects of the child being immediately placed in the care of a parent and, where it is a parent applicant, that parent has reasonable prospects of the child being placed in their care (guideline 5)
In addition to the above guideline changes, VLA may also fund additional IAO appearances where DHHS propose out-of-home care and there are reasonable prospects of reunification within the legislated timeframe if the requirements of s276 of the Act are met (see expanded definition of ‘extraordinary circumstances’).
9.1.3 Notes on amended guidelines
These notes provide guidance for lawyers submitting applications for VLA funded legal assistance in child protection matters. They should be read in conjunction with:
- the amended State Family Guidelines
- related chapters of the VLA Handbook - such as the simplified grants assessment process (chapter 10), the means and State reasonableness tests (Chapters 12 and 14) and costs payable in State family matters (Chapter 24)
- the and
Any State Family Guideline matter that is not the subject of commentary in this section 9 of the notes has been deemed sufficiently clear not to require commentary.
This section 9 of the notes sets out the following:
- definitions of key terms used in the State Family Guidelines
- guidance on what documentation needs to be included in lawyer files to support a grant of assistance under the State Family Guidelines
- in respect of each State Family Guideline:
- guidance on the scope and/or application of the guideline
- other applicable eligibility criteria
- relating to means and the State reasonableness test
- the grants assessment process to be followed for the guideline, including where an application will be VLA assessed and when an application can be lodged as an extension to an existing grant of assistance
- documentary requirements specific to the guideline
together with guidance on applying for specific extensions to a broadband grant
- notes on child protection applications under special circumstances
- guidance on fees and other costs payable in respect of work performed for applicants granted funding under the State Family Guidelines
Reviewed 05 September 2022