Children, Youth and Families Act 2005 (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, usually where a child or the child’s parent applies.
A parent is defined as any of the following under the Act:
- 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 parental responsibility for 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 determined by a court as the father of the child.
Before you can apply to VCAT, an internal review must first take place in most cases.
Cases we can hear
Case plan reviews (section 333)
A case plan is a plan about a child in need of protection, which was prepared by the Secretary to the Department of Health and Human Services or the principal officer of an Aboriginal agency under section 168. The plan must contain all decisions by the Secretary or the principal officer considered significant and related to the present and future wellbeing of the child, including placement and access to the child.
Once an internal review of the decision under section 331 or section 332 has been conducted, a child or a child's parent may apply to VCAT for a review of:
- a decision in a case plan concerning a child
- any other decision made by the Secretary or principal officer concerning a child.
Finding or determination of a Suitability Panel relating to out-of-home carers (section 118)
A person may apply to VCAT for a review of a finding or determination made by a Suitability Panel.
A Suitability Panel consists of members chaired by a legal practitioner, which hears matters referred to it by the Secretary and can make findings or determinations, including:
- a determination whether or not an allegation that a person has physically or sexually abused a child has been proved and, if proved, a finding of misconduct (section 105)
- a determination whether or not a person (against whom a finding of misconduct has been made) poses an unacceptable risk of harm to children and, if so found, a finding that the person should be disqualified from registration as an out-of-home carer (section 106)
- a determination whether or not a person should continue to be disqualified or have the disqualification removed (section 112).
- Information recorded by community-based child and family service (section 42) – A child or a child’s parents may apply to VCAT for a review of a decision relating to the recording of information about the child or parent by a community-based child and family service.
- Registration of a body as a community service (section 53) – A body may apply to VCAT for a review of a decision by the Secretary to refuse registration, refuse renewal of registration or revoke the body's registration as a community service.
- Child care agreement (section 158) – A service provider includes the Secretary, an out-of-home care service and a disability service provider. A child, parent or any other person whose interests are affected may apply for review of a decision made under or about a child care agreement. A child care agreement is a short-term or long-term agreement between a parent and service provider under which a child is placed in the care of the service provider (or, in the case of a long-term agreement, another suitable person).
Cases we cannot hear
Case plan reviews or applications to review decisions about a child care agreement where an internal review has not yet taken place.
Legislation that gives VCAT the power to hear these applications
Section 42, 53, 118, 158 and 333 of the Children, Youth and Families Act 2005
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. However, there is no power to extend time for the review of a decision about the transfer of child protection orders and proceedings under Schedule 1 of the Act.
What does VCAT take into account when making a decision?
The member who hears your matter will be a person who has knowledge of, or experience in, child welfare matters.
When you prepare your application to VCAT, keep in mind that:
- the best interests of the child are paramount
- we must consider the need to protect the child from harm, protect their rights and promote their development
- when reviewing a decision of the Secretary or community service, we must have regard to certain decision-making principles (under section 11).
We must also consider:
- the need to protect and assist the parent and child as a unit or group
- the need to strengthen, preserve and promote positive relationships between the child and the child’s parents, family members
- and other significant people
- the need to protect and promote the Aboriginal cultural and spiritual identity and development of an Aboriginal child
- the child's views and wishes, where it can be gathered
- 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
- the desirability of making decisions expeditiously, and the harm from delay
- the principle that 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 family member or other person who is significant in the child's life
- if a child is removed from the care of his or her parent, the desirability of 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
- 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 part 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 or employment of the child to continue without interruption or disturbance
- the desirability of siblings being placed together when they are placed in out-of-home care
- any other relevant considerations.
Preparing your evidence, witnesses and witness statements
In a case plan review, you should bring to the hearing anyone who can support your application 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?
- 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.
Do I need a lawyer or professional representative?
You do not need to have legal or other professional representation to appear at VCAT. If you wish to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission. Be aware that the regulatory body in most cases uses legal representation.
Find legal services that may be able to assist you.
Need help with your application?
We can explain the application process and what the form is asking you for. Contact us to get support.
We cannot give you legal advice. This means we cannot tell you what to write in your application or recommend how to get the outcome you want.
Seek legal help if you are unsure about your options or need advice about your claim.
Access and privacy
VCAT hearings and files are usually public.
VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.
There are restrictions on the publication of information about proceedings in The Children’s Court of Victoria (section 534). Where those restrictions do not apply, VCAT will typically make anonymisation orders under the Open Courts Act 2013 about the name of the child, which may also extend to other people if their names may lead to the identification of the child. Any published decision will then use the anonymised names.