Witness summons

Introduction

Should a witness be required to provide evidence to the Court in a hearing, an application to issue a witness summons (commonly known as subpoena) needs to be made to the Children’s Court.

For additional information see Children's Court witness summons - advice.

Procedure

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: subpoena-service-smu@police.vic.gov.au.
• 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.
  • 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 in the Children’s Court.
• 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.

Supervisor tasks

• Provide ongoing supervision and consultation.