Children Youth and Families Act 2005 (Child Welfare Matters) (review)
This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.
VCAT can review certain decisions made under the Children, Youth and Families Act 2005.
Before you can apply to VCAT, an internal review must first take place.
Cases we can hear
Once there has been an internal review of the decision, a child or a child's parent may apply to VCAT for a review the following decisions:
- a decision in a case plan concerning a child
- any other decision made by the Secretary of the Department of Human Services concerning a child
- a decision in a case plan about a child by the principal officer of an Aboriginal agency
- any other decision concerning the child made by an Aboriginal agency’s principal officer, if given authorisation by the Secretary of the Department of Human Services.
A 'parent' under section 3 of the Children, Youth and Families Act 2005 includes:
- the father or mother of the child
- the spouse of the father or mother of the child
- the domestic partner of the father or mother of the child
- a person who has custody of the child
- a person whose name is entered on the Register of Births, Deaths and Marriages as the father of the child
- a person who acknowledged that he is the father of the child by an instrument pursuant to the Status of Children Act 1974
- a person in respect of whom a court has made a declaration, finding or order that the person is the father of the child.
Cases we cannot hear
Cases where an internal review has not yet taken place.
Legislation that gives VCAT the power to hear these applications
If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.
You must make your application within 28 days after the later of the day on which:
- the decision was made, or
- if you have requested a statement of reasons under the Victorian Civil and Administrative Tribunal Act, the statement of reasons is given to you or you are informed that a statement of reasons will not be given.
You may be able to apply for an extension to this time limit.
Case plan reviews
A case plan is a plan prepared by the Secretary to the Department of Human Services for a child, or under section 168 by the principal officer of an Aboriginal agency. The plan must contain all decisions made by the Secretary or the principal officer concerning the child that are considered significant and related to the present and future well-being of the child, including the placement of and access to the child.
Central register reviews
'In relation to a decision recording information in the central register' concerns information recorded by a protective intervenor arising from an investigation that the Minister determines should be recorded in the register.
A protective intervenor for the purposes of the Act is defined in s.181 of the Act to be the Secretary and all members of the police force.
What does VCAT take into account when making a decision?
VCAT takes into account the matters set out in section 10 of the Act.
When you prepare your application to VCAT, keep in mind that we consider that:
- the best interests of the child are paramount
- the need to protect the child from harm, protect their rights and promote their development.
We also consider:
- protection and assistance to the parent of the child as a unit or group
- the need to strengthen, preserve and promote positive relationships between the child and the child’s parents and family members
- the need in relation to an Aboriginal child to protect and promote their Aboriginal cultural and spiritual identity and development
- the child's views and wishes where able to be obtained should be given such weight as appropriate in the circumstances
- the effect of cumulative patterns of harm on the child's safety and development
- the desirability of continuity and stability in the child's care
- a child is only to be removed from the care of their parent if there is an unacceptable risk of harm to the child
- if a child is to be removed from the care of their parent, consideration should be given to placing that child with a person who is significant in the child's life
- if a child is removed from the care of his or her parent a plan for reunification of the child with their parent
- the capacity of any potential caregiver including a parent to provide for the child's needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child
- access arrangements between the child and the child's parents, siblings, family members and other significant persons
- the child's social, individual and cultural identity and religious faith and the child's age, maturity, sex and sexual identity
- where a child with a particular cultural identity is placed in out-of-home care with a caregiver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture
- the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities
- the desirability of allowing the education, training and employment of the child to continue without interruption or disturbance
- possible harmful effects of delay in making a decision or taking action
- the desirability of siblings being placed together when they are placed at a home
- any other relevant considerations.
Preparing your evidence, witnesses and witness statements
You should bring to the hearing anyone who can support your case and show your capability of looking after the child or the children who are the subject of the case plan decision.
All evidence should be in a statement form. There may be social workers or other psychological evidence that you wish to call. Those people may be able to assist you in preparing witness statements.
In relation to your own witness statement, you should give a history of any problems and how you are dealing with those problems. You should also give a history of your relationship with the child or children and whether there is a bond of love and friendship between you and the child or children.
Managing the effects of the case on the child
Children usually become aware of legal proceedings concerning them. As far as possible, children should be isolated from any discussions concerning the legal proceedings, as it is usually not in the child's best interests for them to be concerned or worried about such matters.
What can VCAT order?
Unless the relevant Act of Parliament gives us different powers, VCAT can:
- affirm the original decision, in which case the original decision will stand
- vary the decision
- set aside the decision and substitute our own decision
- set aside the decision and remit (send back) the matter for reconsideration by the decision maker giving directions or recommendations
- invite the decision-maker to reconsider their decision at any time during the case.