Introduction
In Victoria, the Children's Court decides whether a child is in need of protection and if a protection or permanent care order should be made. The Children’s Court also hears matters where children aged 10 to 17 years have been charged with criminal offences.
The Children's Court is divided into four divisions:
- The Family Division hears applications that relate to a child (aged 0-17 years) who is in need of protection or subject to a protection order. Additionally, it hears intervention order applications for children up to the age of 18 years, temporary assessment order applications, irreconcilable difference applications and applications for therapeutic treatment and placement orders.
- The Criminal Division hears matters of alleged criminal offending by children aged between 10 and 17 years (at the time the offence was alleged to have been committed). All charges may be heard except culpable driving causing death and arson causing death, manslaughter, attempted murder and murder. For these kinds of charges, the Children’s Court may conduct a committal proceeding for the young people who will then have their matter determined in the County or Supreme Court of Victoria.
- The Koori Court (Criminal Division) hears matters where young Aboriginal offenders have pled guilty or have been found guilty of a crime. While magistrates make the final sentencing decisions, a Koori Elder or Respected Person may advise on cultural considerations and issues. The Elders or Respected Person also encourage the child to consider the consequences of their actions from the perspectives of both the law and the Indigenous community.
- The neighbourhood justice division is a venue of the Criminal Division of the Court and part of the Family Division relating to family violence and personal safety intervention orders.
The majority of child protection practitioners' work is within the Family Division. However, if practitioners also work with young people they may be involved in the Criminal Division, in those situations where the young person they are working with is alleged to have committed an offence. A magistrate sitting in the Criminal Division can direct the department to conduct an investigation into the child's welfare if they believe the child to be in need of protection.
Specialisation of the Children's Court
The Children's Court remains a specialist court dealing with matters relating to children. When assigning a magistrate to be a magistrate of the Court, the President must have regard to the experience of the magistrate in matters relating to child welfare.
The Supreme Court has long accepted the specialisation of the Children's Court, and accordingly places weight on the decisions of the Children's Court when determining appeal matters.
Standard of proof
There are different standards of proof for civil and criminal cases. In criminal cases, the prosecution must prove that the defendant is guilty 'beyond reasonable doubt'. The onus of proof in criminal cases lies with the state. Therefore, it is the state that has the burden of proving beyond reasonable doubt. Criminal cases have a higher standard of proof because of presumption of innocence.
In the Family Division the applicant (the party bringing the matter to court) must prove the facts 'on the balance of probabilities'.The applicant needs to be able to demonstrate by a 'preponderance of evidence' or 'weight of evidence' to support that the facts are probably true.
Section 162 (3) of the CYFA clarifies that the balance of probabilities standard does not apply to determining whether a future state of affairs is 'likely' or 'unlikely'.
See advice Structure of court system.
Roles and responsibilities of key personnel of the Family Division of the Children’s Court
President of the Children’s Court
The President is a County Court judge and there is only one President of the Children’s Court (regardless of wherever it sits throughout the State of Victoria). The President hears cases on the same basis as a magistrate in Children’s Court matters. There are some matters under the CYFA that can only be heard by the President of the Children’s Court. For example, applications regarding the publication of details of Children’s Court proceedings can only be heard by the President.
The President also presides over matters at the County Court from time to time.
The President is addressed as 'Your honour'.
Magistrate
A magistrate sitting in the Family Division of the Court determines whether a child is in need of protection and, if so, what protection order should be made. The magistrate also decides on applications to breach, vary, revoke or extend orders. They also hear applications for intervention orders. During the period that a matter is being decided by the Court, the magistrate can determine where, with whom and upon what conditions a child may reside.
A magistrate is addressed as 'Your honour'.
Bench clerk
In the courtroom, the clerk sits near the magistrate, announces the cases, calls people into court and prepares the court orders. If child protection practitioners, or any other party, are to give evidence, the clerk will direct you where to stand and will administer the oath or affirmation.
Registrar of the Court
The registrar is the manager and administrator of the Court.
Court coordinator
The court coordinator is a deputy registrar who is responsible for organising and coordinating the caseload of the Court. They will organise the time and date for each case to be heard. The court coordinator can be located at the registrar's office.
Children's Court powers
The powers of the Court are derived from the CYFA, which states that each division of the Court has such powers as are necessary to enable it to exercise its jurisdiction. The jurisdiction of the Family Division includes hearing and determining applications for:
- Interim accommodation orders, including breaches, revocations, extensions and variations of orders.
- Finding that a child is in need of protection.
- Protection orders, including breaches, revocations, extensions and variations of protection orders.
- Temporary assessment orders.
- Therapeutic treatment orders and therapeutic treatment placement orders.
- Permanent care orders.
- Irreconcilable difference findings.
- Transfer of interstate proceedings and orders.
The Court also has the ability to reserve a question of law for determination by the Supreme Court of Victoria. So, where a question of law arises in a proceeding before the Court, the Court can of its own motion or on an application of any party to the proceeding, with the consent of the President of the Court, reserve the question in the form of a special case stated for the opinion of the Supreme Court. If a question has been reserved for the opinion of the Supreme Court, the Children’s Court cannot finally determine the matter until the opinion of the Supreme Court has been given.
The Court also has the power to subpoena witnesses. This means that the Court can subpoena people and documents to inquire into matters the Court considers relevant to its decision making, without relying on one of the parties to the proceeding to call this evidence.
Conduct of proceedings in the Family Division of the Children’s Court
Proceedings within the Family Division are to be conducted in an informal manner, to proceed without regard to legal forms and the Court may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary.
Section 215B sets out less adversarial trial principles for the purpose of promoting and guiding active judicial management and control of proceedings. Accordingly, the Court may in any proceeding:
- consider the needs of child and the impact that the proceeding may have on the child
- conduct proceedings in a manner that promotes cooperative relationships between the parties
- ask any person connected to the proceedings whether they have been subjected to, or are at risk of being subject to family violence; or whether the child has been subject to, or is at risk of being, subjected to abuse, neglect or family violence
- actively direct, control and manage proceedings
- narrow issues in dispute
- determine the order in which the issues are decided
- give directions or make orders about the timing of steps that are to be taken in proceedings
- in deciding whether a particular step is to be taken, consider whether the likely benefits justify the cost
- make appropriate use of technology, such as videoconferencing
- deal with as many aspects of the matter on a single occasion as possible
- where possible, deal with the matter without requiring the parties to attend court and
- do any other thing that the Court thinks fit.
Children's Court clinic
The CYFA provides for a Children’s Court clinic (the clinic) the functions of the clinic are to:
- make clinical assessments of children
- submit reports to courts and other bodies
- provide clinical services to children and their families
- any other prescribed function.
See service description Children’s Court clinic.
Court security
Melbourne
The Court employs security officers. Where there is a known or anticipated risk of violence to a child protection practitioner or another person in the court proceedings, the practitioner can request the attendance of a security officer via the registrar's office. The practitioner will need to brief them about the risk issues. Contact should be made with the principal registrar or the deputy registrar prior to the day of the court hearing, wherever possible. This will assist in ensuring additional preparation can be made to manage the situation effectively.
On the morning of the hearing, if additional security is required and the practitioner has not contacted the Court previously, the practitioner should speak with the principal registrar or the deputy registrar at the second floor counter. Wherever possible, child protection practitioners are urged to consult with the registrar or deputy registrar prior to the hearing date.
In the event that leaving the Court presents a known or anticipated risk to the child protection practitioner or another person in the court proceedings, arrangements should be made with the principal registrar to depart the Court from the back entrance.
Rural area locations
Rural courts are able to alert police if security issues arise. New rural area practitioners should familiarise themselves with the specific security provisions relating to the local court. It is important for child protection practitioners to get this information prior to an incident requiring security to ensure they have a security plan in place for themselves, their clients and others in the court building.
Note: It is important for practitioners to inform their supervisor, legal representative and court security of any threats made against them or property.
If a child protection practitioner is subject to any form of assault at court, including threats and verbal abuse, the department's incident reporting system must be followed, including Disease Injury Near Miss Accident (DINMA) and incident reports. (For the Melbourne Children’s Court the DINMA report book is located in the child protection practitioner's room in the Family Division. Moorabbin, Broadmeadows and rural area workers should familiarise themselves of the location of the DINMA report book in their own local court).
Court operations
Court operation times
There are a number of different arrival times that child protection practitioners need to accommodate depending on the application and the hearing type.
Proceedings at the metropolitan Children's Courts usually commence at 10 am. Practitioners should arrive earlier to list a new matter with the registrar. Practitioners should be at the Court by 9.15 am for directions hearings and at 9.30 am for mention hearings (or earlier if requested by the practitioner's representative). If practitioners are attending a conciliation conference these commence at 9.30 am, 11:30 am, or 1.30 pm.
The Children’s Court in rural areas usually commences at 9.30 am. Rural area practitioners are to familiarise themselves with local court times for all types of applications.
Case listing
It is imperative that child protection practitioners familiarise themselves with the procedures for faxing and sending information regarding applications to the metropolitan Children’s Courts and the Child Protection Litigation Office (CPLO).
Emergency care: If a child protection practitioner has taken a child into emergency care, the practitioner should provide notice to CPLO prior to arrival at court.
On arrival at court, the registrar should be provided with the original relevant applications or notices (remember: keep a photocopy of them for the child protection file).Swear or affirm an affidavit of service or provide the affidavit of service sworn or affirmed by the practitioner who served the protection application (PA).
The metropolitan Children’s Courts will not accept an emergency care matter for hearing unless the appropriate paperwork is filed in person at court before 1.00 pm, with the exception of secure welfare related placement applications which may be filed up to 2.00pm. The application will then be placed into a queue system, dependent on the number of other matters already listed on the day.
By notice and other applications: These matters need to be listed prior to the expiry date (for example, extension of a care by Secretary order) or to be given a hearing date (for example, PA by notice). Prior to the hearing date, all original application documents and the affidavits of service must be returned to court or the matter will not be listed. It is also important in these types of applications for the practitioner to notify CPLO of the pending matter and provide CPLO with copies of the reports and affidavits of service prior to the day of the Court hearing. Where applications are filed at court without the knowledge of CPLO significant delays in preparing the matter for court and getting the matter allocated to a legal representative are likely to occur.
It is important to note that originals of all applications to the Court must be sent directly to the Court - not to CPLO (otherwise applications will expire and matters will not be listed). Extension applications must be received by the Court prior to the expiry date of the order, otherwise the order expires.
Affidavit of service
The person who served the application papers must complete and swear or affirm an affidavit of service. This is often on the back of the application (that is, PA by notice or emergency care ) or can be obtained from the Court or on the client information system. It can be sworn at the court registry. The original must then be placed on the court file by court personnel as proof of service. A copy is kept by the practitioner to place on the departmental file.
Call over process in the Children’s Court (Melbourne)
There is a call over process at the beginning of each day, which only the legal representatives are required to attend, although these arrangements may vary from court to court depending on the magistrate and the Court. The purpose of the call over is to advise the Court of the likelihood of the matter resolving by consent that day, what adjournment may be likely (such as a conciliation conference or contest) and whether the case may require 'court time' that day, for a submissions contest.
Conciliation conference
In matters where an agreement cannot be reached and an application in the Family Division cannot be resolved, then the Children’s Court may refer the case for a conciliation conference (CC).
Considerations for good practice
Good planning, preparation, adequate knowledge and respectful practice can go a long way to ensuring a child protection practitioners experience of the Court process is a positive one.
For any extension or application by notice it is important for the practitioner to notify CPLO of the pending matter and provide the CPLO with copies of the reports and affidavits of service prior to the day of the court hearing, otherwise CPLO may not know of the case or have it allocated to a court or legal officer until the morning of the hearing.
Practitioners can be asked to give evidence at any time during court proceedings in a number of jurisdictions. Child protection practitioners should always prepare as if their matter may be contested.