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3.3.11 Written proposal to Court (s.143)

Last Modified: 10-May-2022 Review Date: N/A

 ‭(Hidden)‬ Legislation

Overview

Before making certain protection orders the Court must consider a proposal prepared by the Department of Communities (a "written proposal") which addresses a number of matters required by section 143A of the Children and Community Services Act 2004 (the Act). 

The purpose of a written proposal is to provide the Court with an outline of proposed arrangements for:

  • the supervision of the child's wellbeing if a supervision order is being sought; or
  • safeguarding and promoting the child's wellbeing, if a protection order (time-limited) or protection order (until 18) is being sought.

The written proposal must demonstrate that the Department has a clear and transparent plan for managing the safety and wellbeing of the child through reunification, long-term care or aligned to the safety goals for a protection order (supervision).  The written proposal is intended to ensure the Department is accountable for decisions made and actions taken, including whether:

  • the goals set out in the proposal are realistic and attainable;
  • the proposal is likely to meet the specific needs of this child;
  • the proposal details how the Department will support the child's parents to make necessary changes to support reunification; and,
  • overall, granting the order requested, or another order or no order, is in the best interest of the child.

Note:  CEO refers to the Chief Executive Officer of the Department of Communities (the Department).

Rules
  • The CEO must provide copies of the written proposal to all parties to the proceedings including the Court, the child (where appropriate to do so) and the child's parents.

  • If the child is Aboriginal or from a Culturally and Linguistically Diverse (CaLD) background, the written proposal must be accompanied by a Cultural Support Plan (CSP) and outline proposed arrangements for placing the child in accordance with the Aboriginal child placement principle or the Guidelines for the placement of a child from a CALD background.

  • The written proposal must also outline the consultation that has occurred or is proposed to occur under section 81 before making a placement arrangement for an Aboriginal or Torres Strait Islander child.

Information and Instructions

  • When written proposal must be submitted to Court
  • Content of written proposal
  • Child's views and wishes
  • Written proposal requirements regarding Aboriginal and Torres Strait Islander Child Placement Principle
  • When written proposal must be submitted to Court

    ​ The Court requires a written proposal in the following circumstances: 

    Type of Order Action Submission
    Protection order (supervision)Initial applicationAs soon as is practicable
     ExtensionAt time of application
     Revoke and replace with protection order (time-limited) or (until 18)As soon as practicable
    Protection order (time-limited)Initial applicationAs soon as is practicable
     Extension, or revoke and replace At time of application
    Protection order (until 18)Initial applicationAs soon as is practicable
     Extension, or revoke and replaceAt time of application
    Protection order (special guardianship)Revoke and replace (with an order other than special guardianship) At the time of application


    In practice, "As soon as practicable" means within the initial 2 or 3 court appearances.  While it is preferable to have parent involvement in preparing the written proposal, lack of parental engagement is not a reason to delay filing a s143 proposal.  In such cases an amended proposal can be filed once the parent's views are known. 

     A different court report is needed when the Court is considering an application for a protection order (special guardianship) – a section 61(3) report. 

    For more information on protection order (special guardianships), see Chapter                                           3.3 Protection Order   (Special Guardianship).


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    Content of written proposal

    Written proposals must contain certain information depending on the type of order being sought and whether the child is Aboriginal or from a CaLD background.  Each proposal will vary according to the unique needs of the child for whom the order is being sought.

    The content of the written proposal should be informed by:

    • the child's CSP, where relevant
    • consultations before making a placement arrangement for an Aboriginal or Torres Strait Islander child
    • conversations held with the child, parents, siblings, other family members and people significant to the child
    • any reports or other relevant information held by the Department, including any parenting capacity assessments completed, which may contain information on how the Department can best support parents to improve parenting capacity, and
    • any relevant case mapping or conference, internally or with external stakeholders.

    All written proposals under s.143 of the Act, must be provided to the Court, the child (where appropriate to do so), the child's parents and any other person the Court allows to be a party to the proceedings.

    The child should be provided a copy of the document having regard to the age and level of understanding of the child. Where the child is unlikely to understand the written document, provide the information in a manner the child understands and document the information provided to the child in the case file.


    The following sections detail the information that must be included in a written proposal according to the type of protection order being sought.

    Protection order (supervision):

    All written proposals for a protection order (supervision) must detail the proposed arrangements for supervising the wellbeing of the child. This includes details of where the child will be living, and any conditions the Department may be seeking to have placed on the order.   

    For more information, see Chapter 3.3 Protection Order (Supervision).

    Protection order (time limited): 

    Written proposals for a protection order (time limited) must outline the proposed arrangements for safeguarding and promoting the wellbeing of the child, including:

    • the arrangements for promoting, where appropriate, the child's relationships with their family and other people significant to the child, such as through contact;
    • for an Aboriginal child, the proposed arrangements for placement in accordance with the Aboriginal child placement principle, and an outline of the consultation that occurred in compliance with s.81 of the Act; and
    • for a CaLD child, proposed arrangements for placement in accordance with the Guidelines for the placement of children from CaLD backgrounds.
    • an outline of the arrangements for working towards reunification with the child's parents.  This must include the support the Department is going to provide the parents to achieve this.

    For the extension of a protection order (time limited), plans for securing long term stability security and safety in the child's relationships and living arrangements must also be included. This includes details of the plans parallel to reunification for long term out-of-home care options for the child. These plans should correspond with the planning detailed in the child's stability and connection forms. 


    The written proposal must be accompanied by the child's CSP if the child is Aboriginal or from a CALD background.

    Protection order (until 18):

    A written proposal for a protection order (until 18) must include the proposed arrangements for safeguarding and promoting the child's wellbeing including:

    • arrangements for promoting, where appropriate, the child's relationships with their family and other people significant to the child, such as through contact;
    • for an Aboriginal child, arrangements for placement in accordance with the Aboriginal child placement principle, and an outline of the consultation that occurred in compliance with s.81 of the Act; and
    • for a CaLD child, proposed arrangements for placement in accordance with the Guidelines for the placement of children from CaLD backgrounds.

    The focus of these arrangements and the written proposal should be on creating and supporting long-term relational, physical and legal stability for the child.  Therefore, even though the child will be in the long-term care of the CEO under this type of order, the written proposal must include arrangements for promoting, where appropriate, the child's relationships with family and other people significant to the child.  

    • For an Aboriginal child, the proposed arrangements for their care in accordance with the Aboriginal child placement principle, and an outline of the consultation that occurred in compliance with s.81 of the Act; and
    • for a CaLD child, proposed arrangements for their care in accordance with the guidelines for the placement of children from CaLD backgrounds. 
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    Child's views and wishes

    ​It is one of the principles in the Act that where a decision under the Act is likely to have a significant impact on a child's life (such as the decision to change a placement arrangement or contact with the child's family), subject to the child's age and level of understanding, the child must be provided with adequate information and the opportunity to be part of the decision-making process.

    During protection proceedings, subject to the child's maturity and understanding, the child's separate legal representative will present the child's wishes and views to the Court. However, if the child has no separate representative, the child's wishes and views should be included in the written proposal, subject to the child's age and level of understanding and willingness to give them.

    Where a child is too young or is unable to participate for another reason, consider how you will provide them with the information about the decision being made and why it was made. This could include using Words and Pictures or writing a letter to an older child or young person.


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    Written proposal requirements regarding Aboriginal and Torres Strait Islander Child Placement Principle

    If…Then…
    The child is Aboriginal or Torres Strait Islander

    you must outline the arrangements for placement in accordance with the Aboriginal Child Placement Principle, and

     in the consultation undertaken before making the placement arrangement, including with Aboriginal Practice Leader and Aboriginal members of the child's family (s.81).

    The child is from a CaLD backgroundyou must outline the arrangements for placement in accordance with the CaLD practice guidelines.


    The written proposal should document how the Department applied the Aboriginal child placement principle; that is, which level of the s.12 placement hierarchy has been met and, as relevant, why this is the highest level of the hierarchy able to be reached.   In your rationale, detail what actions were taken, and placement options considered.  Explain why any higher-level options considered were not possible or were not considered to be in the child's best interests.

    This section must include the s.81 that consultation that occurred with Aboriginal members of the child's family, other family members and with Aboriginal Practice Leaders. 

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