As its name suggests, the Children’s Court hears and determines cases involving minors. The Children’s Court considers criminal charges against young offenders, and hears applications relating to the protection and care of children. There has been a children’s court in Victoria since 1906, when it was formed to deal with petty crimes committed by homeless children, like vagrancy, begging and pick-pocketing. In its first year of operation the Children’s Court dealt with more than 3,000 young people. During the 1980s the State government conducted a wide-ranging review of child welfare and justice. This review resulted in the Children and Young Persons Act (1989), which established the Children’s Court as an independent court (previously it had been a division of the Magistrates’ Court). Its jurisdiction and sentencing powers were also outlined and clarified in the 1989 legislation. The Children’s Court was further reformed by the Children, Youth and Families Act (2005).
The Criminal Division of the Children’s Court hears criminal charges against individuals who were aged 10-17 at the time of the alleged offence. If the offender has turned 19 by the time their case comes to trial in the Children’s Court, the matter is transferred to the Magistrates’ Court. There they will be dealt with as an adult, though the magistrate will take their age into account. Children aged nine or younger cannot be charged with any criminal offence in any State of Australia. The Children’s Court cannot hear serious indictable offences, such as murder, manslaughter, attempted murder or culpable driving. In these cases the Children’s Court will conduct a committal hearing to decide whether the matter should be referred to the County Court or Supreme Court.
All criminal matters in the Children’s Court are heard, decided and sentenced by a single magistrate. If a young offender wishes to be tried by a judge and jury, he or she must first seek a committal hearing to a higher court. The procedure of hearings and trials in the Children’s Court is similar to those in the Magistrates’ Court (mentions, contest mentions, contests and committals). Parties to findings of the Criminal Division of the Children’s Court has the right to appeal these findings in the County Court. If the appeal is on a matter of law, they may appeal to the Supreme Court.
The Children’s Court has a stronger focus on the rehabilitation of criminal offenders than ‘adult’ courts, and this is reflected in its sentencing procedures. After a finding of guilt, the Children’s Court magistrate has the option of deferring sentencing for up to four months, to allow a group conference. A group conference is a round-table meeting between the offender and other relevant parties, such as member(s) of the offender’s family, his/her legal representative, a police officer or social welfare workers. Group conferences look at how the offender might ‘make amends’ for their crime, such as with an apology, voluntary work or payment for damages. They also discuss and outline support, so that the young person’s chances of re-offending are minimised. The magistrate will review the findings of the group conference and take these into account when sentencing.
As in other courts, Children’s Court magistrates have a wide range of sentencing options. If a young offender is found guilty the magistrate can decide to:
- Dismiss the charge without conviction.
- Order the offender to give an undertaking (an agreement or commitment) without conviction.
- Place the offender on a good behaviour bond, without conviction.
- Impose a fine, with or without conviction.
- Place the offender on a youth supervision order, with or without conviction.
- Place the offender on a youth attendance order, with conviction.
- Order detention in a youth training centre, with conviction.
The Family Division of the Children’s Court is concerned with cases of child protection, where a child has been orphaned, abandoned, seriously neglected or is at risk of physical, sexual or psychological abuse from his/her parent(s) or guardian(s). The court receives applications relating to at-risk children, provides dispute resolution facilities, hears contested matters and makes orders. The legislation and processes relating to child protection is currently under review, however a typical process is this:
- The Family Division of the Children’s Court receives an application regarding a child in need of protection. These applications are usually made by the Department of Human Services (DHS) and its child protection workers.
- The application is listed through a mention in the court, which usually adjourns it to be heard at a later date.
- If the child is at risk of imminent physical harm or abuse, the court (on the date of the mention) may make an interim accommodation order about where the child should live until the hearing date.
- The court will usually order a dispute resolution conference, where relevant parties (the child, parent(s) or guardians, other family members, DHS workers and legal representatives) discuss the application and express their views about what should happen. Some matters are resolved by these conferences.
- If dispute resolution does not succeed, the Children’s Court will schedule a contest hearing. Here parties can present evidence, call witnesses and make submissions about what should happen regarding the child. The magistrate will consider the matter and make order(s) relating to custody, supervision, guardianship or permanent care.
The Family Division of the Children’s Court became embroiled in controversy in 2004, when it was reported that it had allowed a 14-year-old boy to “divorce” his mother. The court order was not a divorce as such, but a successful application for separation based on irreconcilable differences. These applications, which are rare, are made by children who believe their parent(s) are behaving in a manner detrimental to the child’s well-being. The identity of the boy and his mother were later revealed in national news coverage, against the instructions of the court. This led to 21 print and television journalists being charged, including David Koch, Jennifer Keyte and Naomi Robson (most were later acquitted of these charges).