In Victoria, the Children's Court determines applications brought by the department or an authorised aboriginal agency, and sometimes by a child or parent. The Children’s Court also hears matters where children aged 10 to 17 years have been charged with criminal offences, applications under the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010.
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 alleged to be 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 orders and therapeutic treatment (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 murder, attempted murder, manslaughter, child homicide, homicide by firearm, arson causing death and culpable driving causing death. For these 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.
The Children's Court is 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 appeals.
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 the 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 2202 Structure of the court system.
President of the Children’s Court
The President is a County Court judge and there is only one President of the Children’s Court. The President hears cases on the same basis as a magistrate in Children’s Court matters.
The President also presides over matters at the County Court from time to time.
The President is addressed as 'Your Honour'.
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, in most cases, the magistrate can determine where, with whom and upon what conditions a child may reside.
A magistrate is addressed as 'Your Honour'.
Registrar of the Court
Registrars are responsible for the administrative section of the court, known as the registry. They process court documents, answer enquiries and perform bench clerk duties.
Registrars hold powers under the CYFA, and have a number of duties to ensure cases proceed effectively, including:
- Case management (for example, contacting parties if reports are overdue)
- Assisting a judicial officer as a bench clerk or court officer
- Assisting parties to join hearings online
- Making arrangements for security and for court dates
- Taking calls from parties and lawyers
In the courtroom, the clerk sits near the judicial officer and 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.
The court coordinator is a 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 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.
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 the 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.
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 2714 Children’s Court clinic.
Melbourne, Moorabbin, Broadmeadows and Dandenong Children’s Courts
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 notify the court via a Security Notification Form on the CMS portal. If additional security is required, a request should be made directly with the Court Registrar and the additional security request form completed. The request for additional security should be made with a registrar or other court staff member 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 a registrar or other court staff member at the counter. Wherever possible, child protection practitioners are urged to consult with a registrar or other court staff member 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 court staff to depart through a different entrance.
Rural area locations
Rural courts are able to alert the registrar, other court staff, security staff and 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 the court 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 with the location of the DINMA report book in their own local court).
Court operation times
There are a number of different arrival times that child protection practitioners need to comply with depending on the application and the hearing type.
Proceedings at the metropolitan Children's Courts usually commence at 10 am. 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 10 am or 1.30 pm. Readiness Hearings are held online and commence at 9.30 am, 11.30 am and 2pm.
The Children’s Court in rural areas usually commence from 9.30 am. Rural area practitioners are to familiarise themselves with local court times for all types of applications.