Thousands of cases are heard in the Victorian Children's Court each year. Until July 1986, the court was closed to the public. Now, proceedings are open to the public unless a Magistrate or Judge makes a specific order excluding particular people from attending (s.523 Children, Youth and Families Act 2005 (Vic) ("CYFA"). Another change in 1986 was the establishment of separate family and criminal divisions of the Children's Court. The separation of divisions is fundamental to the CYFA.
This chapter is designed not only to set out some of the law, but also to describe the court itself and its procedures, in order to give a person who must appear before it a better idea of what to expect. Other information can be obtained from Victoria Legal Aid (VLA), the Children's Court Liaison Officer (based at the court), the Department of Human Services (DHS), or the Children's Court website (see below).
The main Children's Court in Victoria is in Melbourne, and most of the criminal cases that arise in the inner suburbs of Melbourne are heard here. There are also Children's Courts that sit at major suburban Magistrates' Court courthouses and country Magistrates' Court courthouses on a regular basis. Visit the website (below) for a full listing of addresses.
Any young person who has to go to the Children's Court should obtain legal advice as soon as possible. If necessary, free advice can be obtained from a community legal centre or VLA (see: Chapters 2*3 Legal Aid, and 2*4 Advice Directory). The Melbourne Children's Court and all suburban Children's Courts are staffed by VLA duty lawyers who are available to assist every day free of charge.
Almost all young people appearing in the Criminal Division of the Children's Court are legally represented. If a young person is not represented, the case (except in respect of very minor offences) must be adjourned to enable them to obtain representation. If the young person is still not represented on the adjourned date, the case cannot proceed unless the Magistrate or Judge is satisfied that the young person has had a reasonable opportunity to obtain representation (s.524 CYFA).
The provision regarding mandatory representation in the Family Division of the Children's Court was proclaimed in 2001. However, for some years, as a matter of practice, children mature enough to give instructions were, in fact, represented. New provisions contained in the CYFA enable a child not mature enough to give instructions to be represented in exceptional circumstances. In such cases the lawyer must act in the child's best interests and communicate any wishes expressed by the child (s.524).
In the CYFA, "child" is defined for criminal cases as meaning "a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court".
"Proceeding" means "any matter in the Court, including a committal proceeding, but does not include the exercise by a registrar of any jurisdiction, power or authority vested in the registrar under Schedule 3" (as per the Children and Young Persons Infringement Notice System (CAYPINS), see below). In any other case a child is defined as a person under 17 years old.
For the purposes of this chapter, the terms "child" and "young person" are used interchangeably and accord with the above definition unless specified to the contrary or referring to young people on court orders, some of which may apply beyond a young person's 19th birthday.
The head of the Children's Court has the status of a County Court Judge and the title of President. The President hears cases, as do the other Magistrates at the court; however, any appeal from a decision of the President must be heard by the Supreme Court.
The Children's Court can hear all charges (except offences resulting in death, which are heard in an adult court) for offences if the young person was between the ages of 10 and 18 at the time the offence is alleged to have occurred. If the young person is over 19 when the criminal proceeding is commenced, it will be heard in an adult court (s.3 CYFA).
If the charge is an indictable (i.e. more serious) offence, it can be heard in an adult court by a Judge and jury if the young person (or, in limited circumstances, the parents) so desires, or if the Magistrate decides by reason of exceptional circumstances that it is appropriate for the case to be finally decided by a Judge and jury (s.356). If that happens, committal proceedings (see: "Committal proceedings", below) usually will take place in the Children's Court.
In the Family Division, the Children's Court hears protection applications, breaches of welfare orders, applications to discharge welfare orders, applications for temporary assessment orders, irreconcilable differences applications, applications for therapeutic treatment orders (see below), and applications for permanent care orders.
Protection applications involve a young person under 17 (s.162):
- who has suffered or is likely to suffer significant physical, sexual or psychological harm; or
- who has been abandoned; or
- whose parents are dead or incapacitated; or
- whose health has been, or is likely to be, significantly harmed as a result of a failure to provide medical treatment.
Irreconcilable differences applications are applications by a young person or a parent or guardian that the differences between the young person and the parent or guardian are such that the care and custody of the young person is likely to be seriously disrupted (s.259).
The CYFA established three new kinds of order:
- a therapeutic treatment order;
- a therapeutic placement order; and
- a temporary assessment order.
Where a child under 15 has been charged with offending involving sexual abuse, the Court may refer the child for assessment for a therapeutic treatment order (TTO). If the child successfully completes the TTO, the Court must discharge the child without further hearing the criminal proceeding.
If a child who is the subject of a TTO has been charged with an offence involving sexual abuse and the court has not yet made a finding, the criminal proceedings must be adjourned for a period not less than the period of the TTO. Where the court is satisfied that the child has participated in treatment, it must discharge the child without any further hearing of the criminal proceedings.
Generally, it will be advantageous for a child who has been charged with sexual offences to consent to the making of a TTO.
A therapeutic placement order (TPO) can be made when the court has made, or makes, a TTO and is satisfied that it is necessary for the treatment of the child to grant custody of the child to the DHS. A TPO does not affect the guardianship of the child.
The DHS may apply for one extension of each order (TTOs and TPOs).
A temporary assessment order (TAO) can be made when the court considers it is necessary to enable the DHS to ascertain whether a child is in need of protection.
The Children's Court can also hear applications for intervention orders under the Family Violence Protection Act 2008 (Vic) (see: "Incest and violence" in Chapter 6*1 The Rights and Duties of Young People).
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THE CHILDREN'S COURT :: Last updated: Thu Jul 1st 2010