Notes on Guideline 4 – review of case planning decision by DHHS or VCAT

Notes on Guideline 4 – review of case planning decision by DHHS or VCAT

Guideline 4.1 – internal review of case plan decisions – DHHS

(a) Guideline guidance ​notes

For Victoria Legal Aid (VLA) to grant funding under:

  • guideline 4.1.1 – the applicant must be a child or parent in circumstances where there is a current reunification order, there is a case plan that does not support reunification and the other criteria of the guideline are satisfied, or
  • guideline 4.1.2 – the applicant must be a child (only) in circumstances where there is a current protection order placing them out of parental care, where there has been a change of placement and they seek an alternative placement, and the other criteria of the guideline are satisfied.

Examples of matters for which a person might seek review under guideline 4.1.1 (subject to the guideline criteria being met) include the provision of services in accordance with s. 276 of the Act, frequency of contact between a child and parent and placement of a child to better support reunification (such as placement with a grandmother if it would facilitate greater contact to assist with reunification).

(b) Other eligibility criteria

If applicant is a parent – the VLA means test and State reasonableness test must also be met. Ongoing satisfaction of these criteria is required.

If applicant is a child – the VLA means test does not apply. If the child is initiating the internal review, then an assessment must be made as to whether the State reasonableness test is met.

(c) Grants assessment process

An application for a grant of legal assistance for an internal review of a case plan decision can be lodged via the ATLAS simplified grants ‘new application’ template. Note:

  • in the ATLAS ‘Matters’ screen, select the:
    • ‘Matter Group’ as ‘Children’s Court (Family Division)’
    • ‘Matter Type’ as ‘Prot Order – Plan Review’.
  • in the ‘Court Hearings’ screen, under ‘Are there any court proceedings’ select ‘No’
  • in the ‘DHHS’ screen, under ‘Type of DHHS application’ select ‘Case Plan’.

(d) Documentary requirements

The lawyer’s file should include:

  • a copy of the case plan decision to be reviewed
  • a copy of the family reunification order or other protection order (as applicable)
  • a copy of the most recent DHHS report
  • clear notes (in a worksheet or separate file note) of the basis on which guideline 4.1 (including the reasonable prospects requirements), and the State reasonableness test, are met
  • evidence in support of recommendations made to VLA, including:
    • guideline 4.1.1 – how the proposed case plan changes would facilitate reunification within the legislated timeframe (as defined), such as evidence of:
      • the provision of services in accordance with s. 276 and/or failure to provide services in breach of s. 276
      • recent history of the frequency of contact between a child and parent
      • opportunity for placement of a child with (eg an extended family member and how this would facilitate greater contact with a parent)
        and the impact that a case plan change is expected to have on the likelihood of reunification.
    • guideline 4.1.2 – the child’s views on the impact of the placement change, how the change in placement is not in the child’s best interests and supporting evidence of steps taken to confirm an alternative feasible placement.
  • a copy of the documents prepared for internal review, including:
    • advice provided to the client
    • correspondence to DHHS in support of internal review and case plan changes.
  • DHHS’s response to the internal review request and documentation confirming the outcome of any DHHS internal review
  • all other relevant notes, supporting evidence and documents as identified in the Documentary requirements section.

Guideline 4.2 – external review of case plan decisions – VCAT

(a) Guideline guidance notes

For VLA to grant funding under:

  • guideline 4.2.1 – the applicant must be a child or parent in circumstances where there is a current family reunification order, there has been an unsuccessful internal review of a case plan and the other criteria of the guideline are satisfied, or
  • guideline 4.2.2 – the applicant must be a child (only) in circumstances where there is a current protection order placing them out of parental care, there has been an unsuccessful internal review of a case plan and the other criteria of the guideline are satisfied.

(b) Other eligibility criteria

If applicant is a parent – the VLA means test and State reasonableness test must also be met. Ongoing satisfaction of these criteria is required.

If applicant is a child – the VLA means teat does not apply. If the child is not initiating the external review, the State reasonableness test should be assessed as satisfied. If the child is initiating the external review, then an assessment must be made as to whether the State reasonableness test is met.

(c) Grants assessment process

An application for a grant of legal assistance for external review of a case plan decision can be lodged via the ATLAS simplified grants process:

  • using the ‘new application’ template, or
  • where a grant has previously been made for an internal review, using the ‘extension’ template.

Note:

  • in the ATLAS ‘Matters’ screen, select the:
    • ‘Matter Group’ as ‘Children’s Court (Family Division)’
    • ‘Matter Type’ as ‘Prot Order – Plan Review’.
  • in the ‘Court Hearings’ screen, under:
    • ‘Are there any court proceedings’ – select ‘Yes – Intended’
    • ‘When is the next hearing date?’ – can be left blank
    • ‘Which court/tribunal do you have to go to?’ – select ‘VCAT’
    • ‘Court Proceedings Number’ – enter the words ‘Not available’
    • ‘Type of orders sought’ – enter ‘Final Orders’.
  • the ‘DHHS’ screen, under ‘Type of DHHS application’ select ‘Case Plan’.

Satisfaction of the guideline criteria will be VLA assessed. Information to be included in the grant application is discussed in Documentary requirements.

(d) Documentary requirements

The ATLAS application should include or attach (as applicable):

  • a copy of the case plan decision to be reviewed
  • evidence of the unsuccessful internal review of the case plan (proof of matter)
  • an explanation of the basis on which guideline 4.2 (including the reasonable prospects requirements), and the State reasonableness test, are met
  • a copy of the family reunification order or other protection order (as applicable)
  • a copy of the most recent DHHS report
  • details of orders sought by the parties

The lawyer’s file should include:

  • a copy of the documents prepared for external review
  • documentation confirming the outcome of the VCAT external review
  • all other relevant notes, supporting evidence and documents as identified in the Documentary requirements section.