Children, Young Persons, and their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999

1: Short Title and commencement
1: This Act may be cited as the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999, and is part of The Children, Young Persons, and Their Families Act 1989 the principal Act
2: This Act comes into force on 1 November 1999, unless it is earlier brought into force on a date appointed by the Governor-General by Order in Council.
1: Main amendments to principal Act
2: Conduct outside New Zealand
The principal Act is amended by inserting, after section 14
14A: For the purposes of this Act, it does not matter whether the conduct constituting a ground referred to in section 14(1)
3: New
Part 3A The principal Act is amended by inserting, after Part 3
3A: Trans-Tasman transfer of protection orders and protection proceedings
Purpose of Part
207A: Purpose of Part
The purpose of this Part is to provide for the transfer of protection orders and protection proceedings from New Zealand to a State or Territory of Australia, and from a State or Territory of Australia to New Zealand so that—
a: Children or young persons who are the subject of protection orders can continue to receive care or protection even though they move to or from New Zealand; and
b: Protection proceedings can be determined speedily even though the children or young persons who are the subject of the proceedings move to or from New Zealand. Interpretation
207B: Interpretation
In this Part, unless the context otherwise requires,— Child welfare law
a: Parts II and III
b: A law of a participating State that—
i: Corresponds to Parts II and III
ii: Is declared to be a child welfare law for the purposes of this Part by regulations made under section 447(aa) Children's Court Interim order
a: An order under section 207T
b: An equivalent order made under an interstate law: Interstate law
a: Means a law that corresponds to this Part; and
b: Includes a law that is declared to be an interstate law for the purposes of this Part by regulations made under section 447(ab) Interstate officer
a: The holder of an office or position (by whatever name called) that is an office or position the holder of which is declared, in relation to that State, to be the interstate officer for the purposes of this Part by regulations made under section 447(ac)
b: The holder of the office or position (by whatever name called) that, by or under the child welfare law of that State, has principal responsibility for the care or protection of children and young persons in that State: Participating State Protection order section 207C Protection proceedings
a: Proceedings in a Court or a Children's Court under a child welfare law for the making, variation, discharge, or revocation of a protection order or interim order, or for the extension of any period of such an order; or
b: Proceedings in a Court or a Children's Court under a child welfare law (for example, proceedings for a declaration under section 67
i: That a child or young person is in need of care or protection; and
ii: That empowers the Court or Children's Court to make a protection order: Review proceedings
a: By way of an application for review under The Judicature Amendment Act 1972
b: By way of an application for mandamus, injunction, prohibition, or certiorari; or
c: By way of an application for a declaratory judgment: Sending State Young person
a: Who is 17 years old or older; and
b: To whom a guardianship order made under section 110
207C: Meaning of
protection order
1: In this Part, protection order
a: Means a final order under a child welfare law that makes the custody, guardianship, supervision, or support of a child or young person the responsibility (in whole or in part, and however that responsibility is described) of any 1 or more of the persons specified in subsection (2)
b: Includes an interim custody order made pursuant to section 102 subsection (2)
2: The persons referred to in subsection (1)
a: A government department or statutory authority:
b: A person who is the head of a government department or statutory authority or otherwise holds an office or position in, or is employed in, a government department or statutory authority:
c: An organisation or body approved or authorised by or under the child welfare law to exercise or perform powers, duties, or functions conferred, imposed, or prescribed by or under the child welfare law:
d: The chief executive (by whatever name called) of an organisation or body referred to in paragraph (c) Transfer of protection orders from New Zealand by chief executive
207D: Chief executive may transfer protection order
1: The chief executive may transfer a protection order ( the home order
a: In his or her opinion, a protection order to the same or a similar effect as the home order could be made under the child welfare law of that State; and
b: The home order is not subject to an appeal to the High Court, or to any review proceedings; and
c: The interstate officer of the participating State has consented in writing to the transfer and to the proposed terms of the protection order to be transferred ( the interstate order
d: Any consent required under section 207F
e: Any consultation required under section 207G
f: The child or young person is not subject to—
i: An order made under paragraph (c) paragraphs (k) to (o), of section 283
ii: A community-based sentence, or a suspended sentence, under The Criminal Justice Act 1985
g: Neither the chief executive, nor any officer or employee of the Department, knows of any information laid, or of any proceedings pending before a Youth Court or any other court, that could lead to the child or young person being made subject to an order or sentence referred to in paragraph (f)
2: In determining whether a protection order to the same or a similar effect as the home order could be made under the child welfare law of a participating State, the chief executive must not take into account the maximum period for which such an order can have effect in that State.
3: Before deciding whether to transfer a protection order, the chief executive may request a Care and Protection Co-ordinator to convene a family group conference for the purpose of considering whether the order should be transferred, and sections 20 to 36
207E: Chief executive to have regard to certain matters
In deciding whether to transfer a protection order, the chief executive must have regard to—
a: The principles referred to in sections 5, 6, and 13
b: The matters that section 130 section 128
c: Whether an interstate officer is in a better position to exercise powers and responsibilities under a protection order relating to the child or young person than the person exercising those powers and responsibilities under the protection order; and
d: The desirability of a protection order being an order under the child welfare law of the place where the child or young person resides.
207F: Consent required
1: This section applies if—
a: The home order is a support order made under section 91
b: The home order is a custody order made under section 101 paragraphs (a) to (d) of that section
c: The home order is a custody order made under section 101(e)
d: The home order is a sole guardianship order made under section 110
2: If this section applies, consent to the transfer of the order is required from—
a: Each parent of the child or young person (other than a parent who resides, or intends to reside, in the relevant participating State); and
b: Each guardian of the child or young person (other than the chief executive); and
c: Each person who, under this Act or The Guardianship Act 1968
3: Despite this section, the consent of a person is not required if the chief executive is not able to locate the person after having made all reasonable efforts to locate the person.
207G: Consultation required
1: This section applies if the child or young person is subject to—
a: A services order made under section 86
b: A support order made under section 91
2: If this section applies, the chief executive must consult the person or organisation on whether the order should be transferred.
207H: Conditions and duration of order to be transferred
1: The chief executive may include in the proposed interstate order any conditions that may be included in a protection order of that type made in the participating State.
2: The chief executive must determine, and specify in the interstate order, the period for which the interstate order is to remain in force.
3: The period must be a period—
a: That commences on the date of the registration of the interstate order in a participating State; and
b: That is—
i: The same as the period of the home order, if that is possible under the child welfare law of the participating State; or
ii: In any other case, as similar a period as is possible under that law but in no case longer than the period of the home order.
207I: Notice of decision to transfer
1: As soon as practicable but in any event no later than 3 working days after deciding to transfer a protection order, the chief executive must give a notice of the decision to—
a: Each parent of the child or young person concerned; and
b: The child or young person concerned, unless he or she is incapable of understanding the notice because of his or her level of maturity.
2: A notice must also—
a: State that the decision may be reviewed on certain grounds if, within 13 working days after the date of the decision, review proceedings are brought in the High Court and served on the chief executive; and
b: Inform the child, young person, or parent on whom it is served that he or she may bring review proceedings (or, as the case requires, have review proceedings brought on his or her behalf) and how, in general terms, the review proceedings may be brought.
3: Nothing in this section requires the chief executive to give a person a notice if the chief executive is not able to locate the person after having made all reasonable efforts to locate the person.
207J: Review of decision to transfer
Any review proceedings in respect of a decision to transfer a protection order—
a: Must be brought, and served on the chief executive, within 13 working days after the date of the decision, and the 13-working day period cannot be extended:
b: Operate on and after filing as a stay of the decision until the review proceedings are withdrawn or finally determined. Transfer of protection orders from New Zealand by order of Court
207K: Court may order transfer of protection order
1: A Court may order that a protection order be transferred to a participating State if—
a: The chief executive applies to the Court for the order to be transferred; and
b: The Court has obtained and considered, in relation to the child or young person, a report from a Social Worker that covers the matters that section 130 section 128
c: The protection order is not subject to an appeal to the High Court, or to any review proceedings; and
d: The interstate officer of the participating State has consented in writing to the transfer of the protection order and to the proposed terms of the order to be transferred; and
e: The child or young person is not subject to—
i: An order made under paragraph (c) paragraphs (k) to (o), of section 283
ii: A community-based sentence, or a suspended sentence, under The Criminal Justice Act 1985
f: The chief executive certifies that neither the chief executive, nor any officer or employee of the Department, knows of any information laid, or of any proceedings pending before a Youth Court or any other court, that could lead to the child or young person being made subject to an order or sentence referred to in paragraph (e)
2: Before deciding whether to order the transfer of a protection order, the Court may direct a Care and Protection Co-ordinator to convene a family group conference for the purpose of considering whether the transfer should be ordered, and sections 20 to 36
3: Sections 188, 189, and 191 to 194 subsection (1)(b) section 186
207L: Service of application
1: As soon as possible after the chief executive files in a Court an application under section 207K section 154 section 125
2: Section 155
3: A person served with proceedings under subsection (1)
207M: Court to have regard to certain matters
In considering an application under section 207K
a: The principles referred to in sections 5, 6, and 13
b: Whether an interstate officer is in a better position to exercise powers and responsibilities under a protection order relating to the child or young person than the person exercising those powers and responsibilities under the protection order; and
c: The desirability of a protection order being an order under the child welfare law of the place where the child or young person resides.
207N: Terms, conditions, and duration of order to be transferred
1: If a Court orders that a protection order ( the home order the interstate order
a: To the same or a similar effect as the terms of the home order; or
b: Otherwise appropriate for the child or young person.
2: The Court may include in the interstate order any conditions that could be included in a protection order of that type made in the participating State.
3: In determining whether terms that could be the terms of a protection order made under the child welfare law of the participating State are to the same or similar effect as the terms of the home order, the Court must not take into account the maximum period for which such an order can have effect in that State.
4: The Court must determine, and specify in the interstate order, the period for which the interstate order is to remain in force.
5: The period must be a period—
a: That commences on the date of the registration in the participating State of the interstate order; and
b: That is possible for a protection order of the type of the proposed interstate order under the child welfare law of the participating State; and
c: That the Court considers appropriate.
207O: Appeal against order for transfer
The following provisions apply to an appeal to the High Court under section 341
a: Despite section 346(b)
b: Despite section 342(1)(a) section 342(1)(b)
c: Despite section 344
d: The appeal must be heard and determined by the High Court as soon as possible.
207P: Review of order for transfer
1: Any review proceedings in respect of an order that a protection order be transferred—
a: Must be brought within 10 working days after the date of the order, and the 10-working day period cannot be extended:
b: Operate on and after filing as a stay of the order until the review proceedings are withdrawn or finally determined.
2: Subsection (3)
a: Brings review proceedings in respect of an order that a protection order be transferred; and
b: Has also appealed to the High Court under section 341
3: If this subsection applies in accordance with subsection (2) Transfer of protection proceedings from New Zealand by order of Court
207Q: Court may order transfer of protection proceedings
1: A Court may order that protection proceedings pending in the Court be transferred to the Children's Court in a participating State if—
a: The chief executive applies to the Court for an order that the proceedings be transferred; and
b: The interstate officer of the participating State has consented in writing to the transfer of the proceedings; and
c: The child or young person is not subject to—
i: An order made under paragraph (c) paragraphs (k) to (o), of section 283
ii: A community-based sentence, or a suspended sentence, under The Criminal Justice Act 1985
d: The chief executive certifies that neither the chief executive, nor any officer or employee of the Department, knows of any information laid, or of any proceedings pending before a Youth Court or any other court, that could lead to the child or young person being made subject to an order or sentence referred to in paragraph (c)
2: Before deciding whether to order that protection proceedings be transferred, the Court may direct a Care and Protection Co-ordinator to convene a family group conference for the purpose of considering whether the transfer should be ordered, and sections 20 to 36
207R: Service of application
1: As soon as possible after the chief executive files in a Court an application under section 207Q
a: Each parent of the child or young person concerned or other person with whom the child or young person concerned is living; and
b: The child or young person concerned, unless he or she is incapable of understanding the application because of his or her level of maturity.
2: Section 155
3: A person served with proceedings under subsection (1)
207S: Court to have regard to certain matters
In considering an application under section 207Q
a: Whether any other proceedings relating to the child or young person are pending, or have previously been heard and determined, under the child welfare law in the participating State; and
b: The place or places where any of the matters giving rise to the proceedings in the Court occurred; and
c: The place of residence, or likely place of residence, of the child or young person, his or her parents, and of any other people who are significant to the child or young person; and
d: The principles referred to in sections 5, 6, and 13
e: Whether the chief executive or an interstate officer is in the better position to exercise powers and responsibilities under a protection order relating to the child or young person; and
f: The desirability of a protection order being an order under the child welfare law of the place where the child or young person resides.
207T: Interim order
1: A Court that orders that protection proceedings be transferred may also make an interim order in respect of the child or young person concerned.
2: An interim order—
a: May release the child or young person into the care of any person, subject to any conditions that the Court considers appropriate; and
b: May direct that supervision or support be provided to the child or young person by the interstate officer in the participating State or by any other person who could be so directed under the child welfare law of that State.
3: Part II section 78
a: Remains in force for the period (not exceeding 30 days) specified in the interim order:
b: May be varied, or revoked, or extended, by the Children's Court in the participating State in accordance with the interstate law of that State.
207U: Appeal against order for transfer
The following provisions apply to an appeal to the High Court under section 341
a: Despite section 346(b)
b: Despite section 342(1)(a) section 342(1)(b)
c: Despite section 344
d: The appeal must be heard and determined by the High Court as soon as possible.
207V: Review of order for transfer
1: Any review proceedings in respect of an order that protection proceedings be transferred must be brought within 3 working days after the day on which the order was made, and the 3-working day period cannot be extended.
2: Subsection (3)
a: Brings review proceedings in respect of an order that protection proceedings be transferred; and
b: Has also appealed to the High Court under section 341 against that order, and the High Court has not yet started to hear the appeal.
3: If this subsection applies in accordance with subsection (2)
207W: Transferred proceedings discontinued
If a Court orders that protection proceedings be transferred, the proceedings are discontinued in the Court on the registration of the order in the Children's Court of the participating State in accordance with the interstate law of that State. Transfer of protection orders and protection proceedings to New Zealand
207X: Registration of orders and proceedings to be transferred to New Zealand
1: As soon as practicable after a decision or order is made under an interstate law for the transfer to New Zealand of a protection order, the chief executive must register the protection order in a Court by filing the protection order in the office of the Court.
2: As soon as practicable after an order is made under an interstate law for the transfer to New Zealand of protection proceedings, the chief executive must register the proceedings in a Court by filing the order, together with any interim order made at the same time, in the office of the Court.
3: The chief executive must not register a protection order, an order that protection proceedings be transferred, or an interim order, under this section if,—
a: As the case requires,—
i: The decision to transfer the protection order; or
ii: The order that the protection order be transferred; or
iii: The order that the protection proceedings be transferred,— is subject to appeal, or review, or a stay; or
b: The period the interstate law allows for an appeal to be brought, or a review to be sought, has not expired.
207Y: Notice of registration
As soon as practicable after an order is registered in a Court under section 207X
a: The appropriate officer of the Children's Court in the sending State; and
b: The interstate officer of that State.
207Z: Effect of registration
1: If a protection order is registered in a Court under section 207X
a: The order is to be treated for all purposes as a protection order of the relevant kind made by the Court under Part II
b: The making of the order cannot be appealed against under section 341
2: If an order made under an interstate law for the transfer to New Zealand of protection proceedings is registered in a Court under section 207X
3: If an interim order is registered in a Court under section 207X
a: The order is to be treated for all purposes as if it were an order made by the Court under section 78
b: The making of the interim order cannot be appealed against under section 341
207ZA: Court to obtain plan for child or young person
1: As soon as practicable after a protection order of a kind referred to in section 128(2) section 207X sections 129 to 133
2: A person preparing a plan required by this section must have regard to—
a: The terms of the protection order:
b: Any plan, or other document (by whatever name called) that corresponds to a plan, prepared in relation to the child or young person under the child welfare law of the sending State:
c: The matters addressed in any report made to the Children's Court in the sending State in relation to the application for the transfer of the protection order.
3: On obtaining a plan required by this section, the Court must fix a date in accordance with section 134 section 128 sections 135 to 138
a: The review of the plan; and
b: The resulting report and revised plan.
207ZB: Hearing and determination of transferred proceedings
If an order made under an interstate law for the transfer to New Zealand of protection proceedings is registered in a Court under section 207X
a: Is not bound by any finding of fact made in the proceedings in the Children's Court in the sending State; and
b: May have regard to any transcript of, or evidence adduced in, the proceedings in the Children's Court in the sending State.
207ZC: Aboriginal or Torres Strait Islander children or young persons
1: This section applies if—
a: A protection order, or an order made under an interstate law for the transfer to New Zealand of protection proceedings, is registered in a Court under section 207X
b: A child or young person concerned is an Aboriginal or a Torres Strait Islander.
2: If this section applies in accordance with subsection (1) section 5(b)
207ZD: Application to have registration revoked
Any of the following persons may apply to a Court to have the registration of an order under section 207X
a: The chief executive:
b: The child or young person concerned:
c: A parent of the child or young person concerned:
d: A party to the proceedings in the Children's Court in the sending State in which the decision to transfer the order or proceedings (as the case requires) was made.
207ZE: Service of application
1: As soon as practicable after an application under section 207ZD
a: The interstate officer of the sending State; and
b: Each person (other than the applicant) who could have made an application.
2: Section 155
3: A person with proceedings under subsection (1)
207ZF: Revocation of registration
1: On an application under 207ZD, the Court may revoke the registration of the order if, and only if, the Court is satisfied that, at the time of registration,—
a: As the case requires,—
i: The interstate officer's decision to transfer the protection order; or
ii: The order of the Children's Court that the protection order be transferred; or
iii: The order of the Children's Court that the protection proceedings be transferred,— was subject to appeal, or review, or a stay; or
b: The period the interstate law allows for an appeal to be brought, or review to be sought, had not expired.
2: The revocation of the registration of an order does not prevent the later re-registration of that order.
207ZG: Notice of revocation
As soon as practicable after the registration of an order is revoked under section 207ZF
a: The appropriate officer of the Children's Court in the sending State; and
b: The interstate officer of that State.
207ZH: Effect of revocation on plan and documents
If the Court revokes the registration of an order under section 207ZF
a: The Court may, on its own initiative or on an application for the purpose, make such orders as it thinks fit with respect to the preparation or review of any plan or revised plan relating to the child or young person concerned:
b: The Registrar of the Court must send the documents filed when the order was registered to the appropriate officer of the Children's Court in the sending State. Miscellaneous provisions
207ZI: Expiry and revival of order transferred from New Zealand
1: A protection order transferred from New Zealand ( the home order the interstate order
2: If the registration of the interstate order is revoked under the interstate law in the participating State to which the home order is transferred, then the home order is revived under this Act.
3: The home order is revived—
a: On the revocation; and
b: Until the time at which it would have ceased to have effect if it had not been transferred.
207ZJ: Expiry and revival of ancillary orders
1: This section applies if—
a: A child or young person is the subject of a protection order ( the home order section 207ZI(1)
b: That child or young person is subject to any other order ( the ancillary order paragraphs (b) to (h) (except paragraph (e)) of section 83(1)
2: The ancillary order ceases to have effect under this Act at the same time as the home order ceases to have effect.
3: If the home order is revived in accordance with section 207ZI(2)
207ZK: Transfer of Court file
1: The Registrar of a Court must send all documents filed in the Court in connection with protection proceedings to the appropriate officer of the Children's Court in a participating state if—
a: A protection order made in the proceedings, or the proceedings themselves, are transferred to the participating State under this Part; and
b: The transfer decision or order is not subject to an appeal or a review or a stay; and
c: The period allowed under this Part for bringing an appeal, or bringing review proceedings, has expired.
2: The Registrar of the Court must make a copy of all documents sent under this section, and keep the copies for the same period as the sent documents would have been kept.
207ZL: Disclosure of information to interstate officer
1: This section applies to information that has come to the notice of the chief executive, or to an officer or employee of the Department, in the performance of duties or exercise of powers under this Act.
2: Despite anything to the contrary in this Act, the chief executive may disclose to an interstate officer information to which this section applies if the chief executive considers the disclosure necessary or desirable to enable the interstate officer to perform duties or exercise powers under a child welfare law or an interstate law.
207ZM: Information disclosed to chief executive by interstate officer
1: This section applies to information that an interstate officer has disclosed to the chief executive under a provision of a child welfare law or an interstate law that corresponds to section 207ZL
2: Information to which this section applies is to be taken for the purposes of this Act to have been given directly to the chief executive in New Zealand instead of to the interstate officer.
3: This section is subject to section 207ZN
207ZN: Department not to disclose information identifying notifier
1: This section applies to information—
a: To which section 207ZM
b: That, if disclosed, would be likely to identify, or lead to the identification of, a person ( a notifier
2: This section does not apply to information that is or may be evidence of any grounds that the notifier had for his or her belief.
3: The chief executive, or an officer or employee of the Department, must not disclose information to which this section applies unless—
a: The notifier has consented in writing to the disclosure; or
b: The disclosure is to enable—
i: The investigation, or consideration, of any need to take action under this Act in respect of the child or young person; or
ii: The taking of any such action; or
c: The disclosure is in accordance with subsection (4)
4: In proceedings in any court, or in any proceedings of a judicial nature, unless the notifier has consented in writing or the court or tribunal concerned has granted leave,—
a: A witness must not be asked, and if asked is entitled to refuse to answer, a question the answer to which would be information to which this section applies; and
b: Information to which this section applies is not admissible as evidence.
5: A court or tribunal may grant leave under subsection (4)
a: To ensure the safety and wellbeing of the child or young person; or
b: In the interests of justice.
207ZO: Written consent of interstate officer
A document that purports to be the written consent of an interstate officer (or of an interstate officer's authorised delegate) for the purposes of section 207D(1)(c) or section 207K(1)(d) or section 207Q(1)(b)
2: Other amendments to principal Act
4: New sections inserted
The principal Act is amended by inserting, after section 446
446A: Children and young persons to whom
section 446B
1: Section 446B section 207C section 207ZI(1)
a: That the chief executive proposes to transfer under section 207D section 207B
b: That the chief executive has decided to transfer under section 207D
c: That is an order in relation to which the chief executive has filed in a Court an application under section 207K
d: That a Court has ordered under section 207K
2: Section 446B section 207B section 207W
a: That are proceedings in relation to which the chief executive has filed in a Court an application under section 207Q
b: That a Court has ordered under section 207Q
3: Section 446B section 207X
4: Section 446B section 207X
446B: Offences available if child or young person is subject of certain protection orders or proceedings under
Part 3A
1: If this section applies to a child or young person,—
a: A person may be prosecuted for an offence against section 446
b: It does not matter whether the conduct that constitutes the offence occurs wholly within or wholly outside New Zealand or partly within or partly outside New Zealand.
2: A person is not liable to be prosecuted under section 446
a: That constitutes an offence not only under section 446 section 207B
b: For which the person was prosecuted in the participating State and convicted or found guilty or acquitted.
3: The Attorney-General must be consulted before a prosecution is commenced for an offence against section 446
5: Regulations
Section 447 paragraph (a)
aa: Declaring a law of a participating State to be a child welfare law for the purposes of Part 3A
ab: Declaring a law to be an interstate law in relation to a participating State for the purposes of Part 3A
ac: Declaring the holder of an office or position to be the interstate officer in relation to a participating State for the purposes of Part 3A .
6: Consequential amendments to principal Act
The principal Act is amended in the manner indicated in the Schedule