Should a witness be required to provide evidence to the Court in a hearing, an application to issue a witness summons (commonly known as a subpoena) needs to be made to the Children’s Court via the CMS Portal .
For additional information see Children's Court witness summons - advice.
Case practitioner tasks
- Seek advice from the CPLO or divisional solicitor about which witnesses to call (if in doubt).
- Contact witnesses and discuss with them their availability and the nature of their evidence. Inform witnesses of the subpoena and that they should be on stand-by and not attend court unless advised to do so by you, the CPLO or the divisional legal officer. This is to prevent all witnesses attending court on the first day.
- Discuss with your barrister or solicitor when each witness is likely to be required and keep each witness informed of this.
- If you need police to give evidence, the Victoria Police Subpoena Management Unit (SMU) provides a central management point for all witness summonses directed towards the Chief Commissioner of Police and police members.
- Do not forward witness summonses to the police member involved.
- If police are required to give evidence within seven days, contact SMU immediately to make arrangements.
- Any child protection witness summonses that involves the production of documents by police must be handled by SMU.
- If you need help with the wording of witness summons schedules to identify specific documents, the SMU will assist.
- All witness summons involving police should be directed to: Subpoena Management Unit, Customer Service Centre, 637 Flinders Street, Melbourne 3000. Any queries or complaints should be directed to the Subpoena Management Unit on: (03) 9247 6954, (03) 9247 5254 or (03) 9247 5959 or email: firstname.lastname@example.org.
- The Children’s Court will coordinate the issuing of the summons for the court clinician to give evidence.
- The CPLO or divisional solicitor will place a s. 550 order on the court minutes to reflect this.
- Complete the relevant Form 41 witness summons.
- The applicant will need 'case access' to the appropriate child to generate a witness summons.
- When a witness is required for a sibling group, a witness summons should be filed in the CMS Portal against the lead sibling (oldest active sibling) of the sibling group, referencing the other siblings in the summons as appropriate. This is to avoid the witness being served with individual summons per child.
- If the witness is only relevant to a specific child in the sibling group, the witness summons should be filed against the relevant sibling/s.
- Consider if you need the witness to attend (Form 41), or produce for examination any documents in their possession (Form 41A), or both (Form 41B).
- Wherever possible, seek a written report from any professional subpoenaed to give evidence.
- As a ‘model litigant’ the department is obliged to call all relevant witnesses who have knowledge of the family.
- Contact and advise the witness if you intend to serve a summons. Discuss and agree how the summons will be served. This is particularly important if the summons will not be personally delivered to discuss any privacy concerns.
- Departmental employees do not need to be subpoenaed. They can simply be advised to attend at a suitable time.
- Serve copies of Form 41,or 41A or 41B on the witnesses and complete affidavits of service. See Affidavits and statutory declarations. A witness summons must be served on a witness in a reasonable time before the return date.
- Deliver a true copy of the summons to the witness personally, or leave a true copy at their last or most usual place of residence or business, as negotiated, with a person who apparently resides or works there and who is apparently not less than 16 years of age (s. 532 (5) CYFA).
- You must give the witness conduct money, usually the cost associated with travel to and from court on public transport.
- If you are unable to serve a witness, seek approval from your supervisor to employ a 'process server' to serve the document.
- File the affidavit of service to the Children’s Court via the CMS Portal before the return hearing date.
- If a self-employed professional is attending to give evidence, negotiate their fee to appear prior to the hearing date.
- If Form 41, 41A or 41B is issued but the application is adjourned, the original witness summons is still valid.
- Advise the witnesses of the adjournment in writing.
- If a witness refuses to attend court on the original witness summons, issue a further witness summons with reasonable notice.
- Provide ongoing supervision and consultation.