Going to Court

What should I do if I get a notice to go to court?

Seek legal advice or apply for Legal Aid as soon as possible. Contact details for Legal Aid Queensland, the Queensland Law Society for referrals to a private lawyer or a Community Legal Centre are contained in this kit.

Bring your documents to court. There is a duty lawyer service for unrepresented parties in child protection proceedings in some courts and it is easier for them to help you if you have your documents.

It is important to attend court whether you have a lawyer or not, as the court may make an order if you are not there.

Preparation for court

  1. Get legal advice before you go.
  2. Dress neatly in conservative clothes. It shows the court that you are serious.
  3. Prepare! Know what you want. Make sure your lawyer has enough information too. It will help your case if you read what documents the Director of Child Protection Litigation has given you (eg their affidavit) and write down what you don’t agree with – in dot points! Give this to your lawyer.
  4. A good idea is to take notes into court with you about what you want to say. You will be asked questions and have a chance to have your say. Be aware that anything you say will be used to make the final decision. Think about what questions you may be asked.

Appearing in court

  • Remember to be polite, call the Magistrate ‘Your Honour’.
  • Stand when the Magistrate is talking to you.
  • Always act in a way that reflects the dignity of the court and the seriousness of the matter.
  • Turn your mobile phone off.
  • Remember that court’s biggest concern is what is in the best interests of the child.
  • If you do not understand what’s going on, you can ask the Magistrate, the lawyer for Child Safety Services or if you are represented, your lawyer, to explain it to you.
  • Tell the Magistrate if you need an interpreter.
  • The court has to be satisfied that you have had a reasonable opportunity to obtain legal representation. You can ask for an adjournment so that you can apply to Legal Aid Queensland for a lawyer or get advice in a Community Legal Centre.

Adjournments

A mention is where the case is reviewed by the court and perhaps moved on to the next stage. The court can put off the proceedings to a later date (this could be for a number of reasons including allowing you to get legal representation). This is called an ‘adjournment’.

A hearing or trial is where the court hears the evidence about the matter and makes a decision. Make a note of the time and date the matter is adjourned to.

The court can make an interim order (this means a temporary or an ‘in the meantime order’) when they adjourn proceedings. A common interim order is an order giving temporary custody of a child to the Chief Executive (Child Safety Services) , or sometimes to another person. This type of order allows Child Safety Services to have custody of the child until the final decision of the application is made. Other common interim orders relate to whether parents are allowed contact with their child and whether it must be supervised.

The court can also order:

  • no contact or only supervised contact with a child
  • a social assessment report
  • medical examination or treatment of the child
  • a family group meeting
  • separate legal representation for the child
  • a conference between you and Child Safety, convened by a person appointed by the court

Interim contact

If you believe that you do not have enough contact with your child, you can tell the Magistrate about your concerns. The Magistrate has the power to make orders about contact.

What if the court made an order and I wasn’t told in advance?

Seek legal advice immediately.

You have to be ‘served’ the documents properly. Usually the application for the court order must be given to you in person.

What if I don’t go to court?

The case can be decided without you as long as Child Safety Services can prove that they have given you copies of the court documents (or made reasonable attempts to do so) within a reasonable time before the hearing.

What happens if there is a court order already?

Get a copy of the order, and any other paperwork you can and get some legal help.

Depending on when the order was made, you may be able to:

  • appeal the decision (you only have 28 days after the decision was made to appeal it)
  • apply to have the decision reopened by the court
  • apply to have the order revoked or varied

Getting “disclosure” of Child Safety Services’ documents, records and files

Child Safety Services has a duty to disclose all relevant documents to the Director of Child Safety Litigation (“DCPL”). Subject to some exception, the DCPL has a continuing duty to disclose these documents to you.

Some of the exceptions include documents that are records of therapeutic counselling sessions and documents that may endanger someone’s safety or psychological health.

The DCPL must inform you of your right to disclosure by means of a “disclosure form” within 20 days of the first mention.

If you have not received documents or other evidence that you think are relevant, you can ask the Magistrate to direct that the documents be provided to you.

Issuing a subpoena for Child Safety Records

You can arrange for records and reports to be supplied to the court before a trial. First, you need to lodge the relevant forms. Staff at the Childrens Court registry can explain how to do this. After you have lodged the forms, you need to apply to the court for ‘leave to inspect and copy the material’.

If you have witnesses to give evidence at a trial

You should bring to the hearing any witnesses who might help your case. If you intend to put their evidence before the court, you should have them complete an affidavit containing their evidence (a sworn statement) and provide it to all of the parties before the hearing. Usually, the court will set a deadline for when this needs to be done before a hearing.

Evidence that you may consider leading includes family and friends who have seen you with your child. Witnesses should wait outside the courtroom until they are called to give evidence. If you want a person as a witness but they do not want to come to court, you can make them attend by serving them with a subpoena.

Contact the Childrens Court registry to get more information about witness subpoena forms. If you have a lawyer, your lawyer can help you complete all required forms.

Inaccuracies in court documents

Many parents in child protection proceedings are very concerned when they find that some of the information in the court documents:

  • is not accurate
  • sounds worse than it was, or
  • says the bad things but leaves out the good things.

If you have concerns about the truth of the material in the documents, you can do the following:

  • you can present your own statement (‘affidavit’) to the court that addresses the problems with Child Safety Services’ documents, and
  • if you go to trial you will have the opportunity to ask the author questions in front of the Magistrate about what they have written and point out the problems.

For now, it is important to think about what you can agree on with Child Safety Services to help your case to progress. It is important to be able to work calmly with Child Safety Officers to develop an appropriate case plan with clear goals and to monitor the family’s achievement of the goals without excessive arguing about the content of the allegations.

Think about and prepare what you need to tell the Magistrate about the immediate decisions that the court needs to make, such as whether there is sufficient contact between the parents and the child.

Usual Court Process

If you agree that the child protection order should be made in the Childrens Court:

Application filed

by the Director of Child Protection Litigation in the Childrens Court mention at this stage for the application to be served on the other parent, or for one of the parents to seek legal advice.

First mention at the Childrens Court

At this time the court usually finds out whether the application for a child protection order is being contested by you, and whether an interim order needs to be made. The matter may also be adjourned for another mention at this stage for the application to be served on the other parent, or for one of the parents to seek legal advice.

Family group meeting

There may be a few meetings or only one to make a case plan.

The matter returns to court for another mention.

If you agree to the order, the Magistrate will be informed that you agree, and will receive the case plan.
If the Magistrate is satisfied that the case plan is appropriate and that the other requirements of an order have been met, then the Magistrate may make the child protection order without a hearing or a detailed examination of the evidence.

 
 

If you or another party disagrees with the child protection order being made, the application becomes a ‘contested’ application:

Application filed

by the Director of Child Protection Litigation in the Childrens Court.

First mention at the Childrens Court

At this time the court usually finds out whether the application for a child protection order is being contested by you, and whether an interim order needs to be made.

Family group meeting

There may be a few meetings or only one to make a case plan.

Court ordered conference

Will occur if you disagree with the application for a child protection order.

Mention date – before hearing

At this date the court usually makes sure everything that is required to be done before the hearing is done. Orders can be made that parents file a document which details the evidence they will be relying on (an affidavit).

The matter returns to court for another mention.

If you agree to the order, the Magistrate will be informed that you agree, and will receive the case plan.
If the Magistrate is satisfied that the case plan is appropriate and that the other requirements of an order have been met, then the Magistrate may make the child protection order without a hearing or a detailed examination of the evidence.

 

What happens at a trial (also called a hearing)?

At the end of a trial or hearing, after the Magistrate has heard all of the evidence from the parties and he or she will decide:

  1. Is there a child in need of protection and no parent able and willing to protect the child? If so, the Magistrate may make an order, if not, the Magistrate may dismiss the case.
  2. If an order is to be made, what is the most appropriate order to make? For example, is the least intrusive order that is appropriate a Protective Supervision Order, a short-term custody order or a long-term guardianship order?
  3. Is the case plan appropriate? If the case plan that has been developed at the most recent family group meeting is not an appropriate one, the court may direct that another family group meeting be held so that a new case plan can be made.

The hearing will start with the Director of Child Protection Litigation calling their witnesses. This will usually include the Child Safety Officer or Senior Team Leader who has written the evidence.

The main part of a witnesses evidence in a child protection proceeding is given in written form in their affidavit, rather than being given orally in the courtroom.

If a witness gives evidence, the other parties can then ask the witness questions about the evidence given, or any other relevant matter. This is called cross-examination. It might help if you take notes of what witnesses say. This will help you with your cross-examination. Afterwards, the party who calls the witness can ask them questions about anything arising from cross-examination. This is called re-examination.

Witnesses can tell the court what they have actually seen and heard themselves. First-hand accounts from witnesses are more valuable than hearsay (telling the court about things they heard from other people). Witnesses must give truthful answers to all questions.

When you or your lawyer questions your witnesses, they can be asked any questions relevant to your case. If you ask a question that is not relevant to your case or that the witness is not able to answer, the Magistrate can stop you.

When you question your own witness you should avoid asking leading questions. For example, “I’m a good parent to my children, aren’t I?” is a leading question, as it suggests the answer. A better question would be, “Can you describe my relationship with my child?” as it lets the witness make accurate comments without influence. However, when you cross-examine another party’s witness you should ask leading questions.

It is important to be polite when asking questions. The Magistrate may stop you if you are being rude or offensive. You must also remain quiet while the other party is examining a witness.

At the end, when all of the evidence has been presented to the court, you can give a summary of your case. This is called a closing address.

Next chapter

Court Ordered Conferences (“COCs”)

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Departments, lawyers and other participants in child protection proceedings