Thredgold Law will guide you through the various stages of applications in the Victorian Children’s Court, while mediating with the Department of Health & Human Services (DHHS) on your behalf.
The firm can also seek an internal review of case planning decisions, taking these matters to the Victorian Civil & Administrative Tribunal (VCAT) if necessary.
Victorian Children’s Court
The Victorian Children’s Court was established in 1906 and is an independent judicial body headed by a person who has the same status as a County Court judge. Currently the Children’s Court is made up of a judge (called the “President”) and several magistrates who work full-time, or part-time.
The Children’s Court has two essential functions relating to children in Victoria. The Children’s Court deals with those children (between the ages of 10 and 17 years) who are alleged to have committed criminal offences and children (up to 17 years of age) about whom there are allegations of abuse or neglect. Generally speaking, Victoria Police are responsible for prosecuting allegations of criminal behaviour relating to children.
The Victorian Department of Health & Human Services (DHHS) is responsible for investigating allegations of abuse/neglect in relation to children. If DHHS considered the allegations serious enough it might initiate a protection application in the Children’s Court. Ultimately the Children’s Court can decide whether a child is in “need of protection”. These proceedings (heard in the Family Division of the Court) are civil in nature and the Children’s Court decides such matters on the “balance of probabilities”. This is a different standard than in criminal matters where guilt must be determined “beyond a reasonable doubt”.
If the Children’s Court decides that a child is in need of protection it may order that the child remain in his/her parent’s care and direct DHHS to support the family to ensure that the protective concerns are addressed. If there are very serious concerns about the safety and well-being of a child remaining in his/her parent’s care the Children’s Court may grant an order that places the child in another care arrangement. This could be with a family member, foster carer or residential care placement. Initially these orders are time-limited and DHHS has a statutory obligation to work with families so that children can be safely returned to parent’s care. Because of historic concerns about the length of time children were spending away from their parent’s care without having certainty about their future, amendments were made to the legislation (Children, Youth & Families Act 2005) in 2016. These amendments mean that parents have two years to address the protective concerns and be able to demonstrate that they can care appropriately for their children. If this does not occur then the Children’s Court may grant more permanent orders to safeguard the welfare of children. These amendments are not universally endorsed and some stakeholders believe that the timeframe for parents is much too short. This is sometimes the argument when parents are dealing with addiction issues or mental health problems.
The Children’s Court prides itself on having a “non-adversarial” approach to matters heard in the Family Division. This means that, although parties are legally represented, most matters are resolved without having to resort to a contested hearing. This is where people are called to give evidence, under oath, and the magistrate must consider all relevant factors, before making a decision.
There is sometimes tension between the role of the Children’s Court and that of DHHS in making decisions that affect the lives of children and families in Victoria. There is considerable overlap in the decision-making power of the two bodies. People who are not happy with a case planning decision made by DHHS can request that another worker reconsider the situation and make a different decision. Ultimately people dissatisfied with DHHS’ decision-making power can seek a review by the Victorian Civil and Administrative Tribunal. VCAT has the jurisdiction to re-examine a decision and either confirm the decision or make another decision instead.
Parents, and sometimes children, who are not happy with decisions made in the Children’s Court can seek further consideration of their case in either the Supreme Court or County Court. The County Court will usually hear all the evidence again (from the same witnesses) before making a decision.
