Guide to court processes involving children and young people
Includes changes to court processes as a result of Keep Them Safe, Criminal matters in the Children's Court, and Victims Services
Other orders, courts, tribunals and proceedings
Apprehended Violence Order
Sometimes an Apprehended Violence Order will be sought from the Local Court to protect a child or young person. This might be needed when there has been:
- physical abuse but the abuser’s actions are not serious enough to warrant removal or criminal charges
- physical and psychological abuse but the person associated with causing risk or harm does not live in the home and an Apprehended Violence Order may stop them coming to the home or school
- probable sexual abuse but:
- charges are not likely to be laid
- the child will not be removed, and
- there is a protective parent or carer ensuring there is no contact with the person associated with causing risk or harm
- they are between the ages of 14 and 18 years at the time of the commission of the offence and have a demonstrated drug or alcohol problem.
When applying for an Apprehended Violence Order special care must be taken to check any existing Family Law Act 1975 orders relating to who has care and responsibility for the child or young person.
Youth Drug and Alcohol Court
The Youth Drug and Alcohol Court Program can help young people who have been charged with an offence overcome their drug or alcohol problem. The aim of the program is to reduce the child or young person’s level of substance abuse and therefore decrease subsequent offending behaviour. At the end of the program the child or young person will be sentenced, with the Court taking their participation in the program into account.
Program participation can be stopped if the child or young person continues drug and alcohol use or commits other offences. If the child or young person does not comply with the program, they are warned and the program may be altered or they may be required to return to Court to face their initial charges.
Young offenders at the Children’s Court can be referred to the Youth Drug and Alcohol Court if they:
- plead guilty
- are charged with an offence that the Children’s Court can deal with
- have a serious drug or alcohol problem
- live, or identify with, the Program catchment area
- are not eligible for a Young Offenders Act Caution or Youth Justice Conference
- are suitable for treatment and rehabilitation
- agree to participate in the Program while on bail.
At their first appearance before the Youth Drug and Alcohol Court, the Magistrate will determine whether the child or young person is legally eligible to participate. The Magistrate has, at this point, a discretion to exclude a legally eligible child or young person because a Caution or Youth Justice Conference is more appropriate, or because the child or young person’s offence or history of offending is so severe that the child or young person would be sentenced to a Control Order even if he or she successfully completed a Youth Drug and Alcohol Court Program.
Each child or young person who is legally eligible to participate in the Youth Drug and Alcohol Court Program has their matter adjourned for 14 days, while they undergo an in-depth, holistic assessment of their needs. These assessments are conducted by the Joint Assessment and Review Team to determine whether a suitable program plan can be developed for the child.
The Joint Assessment and Review Team is comprised of representatives of the Departments of Health, Education and Communities, Family and Community Services and Attorney General and Justice (Juvenile Justice).
Where a suitable program plan has been developed and the child or young person agrees to enter the program the Youth Drug and Alcohol Court will accept the child or young person into the program. Under the Program the child or young person will have ongoing personal interactions with the members of the Youth Drug and Alcohol Court Team, which consists of the sitting Children’s Magistrate, Police Prosecutor, Legal Aid Solicitor, Youth Drug and Alcohol Court Registrar and a representative of the Joint Assessment and Review Team in an effort to foster rapport.
Most children and young people will meet with the Youth Drug and Alcohol Court Team fortnightly. The average number of Court attendances is 17 times over an average of eight months.
Young people should ask their solicitor if they are eligible for the Youth Drug and Alcohol Court Program or phone the Youth Drug and Alcohol Court Legal Aid Solicitor on 0418663574.
The Family Court
The term ‘Family Courts’ refers to the various Courts in NSW that have jurisdiction under the Family Law Act 1975 to make orders relating to children and young people. They are the Family Court of Australia, the Federal Circuit Court and State Local Courts.
Family Courts manage and adjudicate disputes between parents and others with parental responsibility for children and young people, including:
- living arrangements
- time spent in the company of parents
- communicating with parents
- other parenting issues.
Family Courts are responsible for:
- ensuring that the best interests of the children or young people are the paramount consideration in any decisions about them (this includes the need to protect the child or young person from physical or psychological harm and any family violence involving the child or young person or any member of the child’s or young person’s family)
- ensuring that Court processes are independent, impartial and fair to all concerned
- identifying and reporting a child or young person suspected of being at risk of significant harm to FACS.
- providing conciliation, counselling and mediation to assist families to resolve their disputes without the need for a contested hearing (this should be done in a way that promotes the best interests of the children or young people involved).
Under the Family Law Act 1975 Community Services can become a party (or ‘intervene’) in Family Court proceedings to assist the Court child protection issues which have come to light either through Family Court proceedings or at the same time as Family Court proceedings.
Sometimes Family Court matters that involve serious allegations of child abuse go into the Court’s Magellan program. A Magellan team, consisting of judges, registrars and family consultants manages cases from start to finish. Generally, the aim is to complete Magellan cases within six months from the case being placed on the Magellan list.
A Family Law matter might be prevented from proceeding where a child or young person concerned is already subject to orders of the Children’s Court or Community Services is currently taking steps to ensure the safety of the child. In such a case the Minister can consent to the Family Law matter proceeding.
Family Court contact orders do not apply while the child or young person is in the Director-General's care responsibility pursuant to a temporary care arrangement, removal/assumption of care responsibility or a care order.
The Supreme Court
The Supreme Court has the power to hear applications about Children’s Court matters but will only do so where there are exceptional circumstances.
The Supreme Court can also exercise parens patriae jurisdiction in respect of a child or young person. That is, the Supreme Court has the power to make decisions about a child or young person as though it was the parent of that child or young person, where it considers that the circumstances require the child or young person to be afforded the Court’s protection.
Most commonly the Supreme Court would exercise its parens patriae powers to make orders for the medical treatment of children and young people or to make orders for the care of children and young people in out-of-home care or who are awaiting adoption.
The Coroner’s Court
If there is a death of a child or young person in the circumstances detailed below then it must be reported to the State Coroner:
- death of a child or young person in care
- death of a child or young person which may be due to abuse or neglect
- death of a child or young person, or their sibling, where the child or young person has been the subject of a risk of significant harm report made to Community Services in the past three years.
The Coroner will examine each death as to its manner and cause and decide whether an inquest is necessary. These deaths are also reviewable by the Ombudsman.
Administrative Decisions Tribunal
The Administrative Decisions Tribunal reviews specific administrative decisions of NSW Government agencies when a person disagrees with them.
Reviews of decisions under the Community Services Division of the Administrative Decisions Tribunal often include certain decisions in relation to:
- authorised carers
- adoption services
- children’s services and family day carers
- children’s employment
- transfer of a child protection order to another state.
The Guardianship Tribunal may appoint a guardian to assist young persons (aged 16-18 years) who have a disability and are unable to make decisions alone. The types of decisions which guardians might assist with include:
- medical and dental treatment
- financial decision making.
Victims Compensation Tribunal
A victim of an act of violence may apply for compensation to the Victims Compensation Tribunal. This includes people who suffered injury directly as a result of the violent crime, people who suffered an injury as a result of witnessing the violent crime and immediate family members of a person who dies as a result of a violent crime.
The victim needs to establish they have been a victim of a violent crime and as a result sustained a specified compensable injury. There does not need to be an arrest or a conviction for an award of compensation to be made. Compensation can include payment for the injuries sustained and financial loss.
If a person is convicted of the crime for which a victim receives an award of compensation the State may take action to recover the money from the offender. The victim does not have to give evidence or be involved in these proceedings.
An application for victims compensation can be made online, or alternatively call 1800 633 063 (toll free from a landline). More information can be found at the Victims Services website.