Court preparation checklist

Use this checklist to assist with preparation for court. This checklist is not an exclusive list. Consultation should occur with your legal representative to confirm whether any further actions are required given the circumstances of the case.

Introduction

By spending a short time completing this checklist each time you attend court, you ensure all the necessary tasks have been completed. This should save you time at court and minimise the need for adjournments.

Discuss with supervisor or team manager

Before attending court it is important that you have discussed the following aspects of the case with your supervisor or team manager:

  • What is the rationale for the recommendation?
  • What issues are negotiable, such as grounds of the application, length of a recommended order, conditions, bottom lines?
  • If the matter is adjourned, will an IAO be sought? If so, what conditions will you want?
  • Will you be seeking an undisclosed placement?

By notice applications (including extensions of family reunification or care by Secretary orders)

  • Has the application (form) been lodged with the Children’s Court for a hearing date to be issued?
  • Has a copy of the issued application form been served on all parties, whose whereabouts are known?
    • mother
    • father
    • significant other/s
    • young person 12+ years
    • this includes parents who may not be actively involved in the child’s life.
  • Has service occurred within legal timelines (that is, at least 5 clear days?)
    • mother
    • father
    • significant other/s
    • young person 12+ years
    • this includes parents who may not be actively involved in the child’s life.
  • Has a copy of the issued application form with court date been faxed/sent to the CPLO or divisional legal officer?
  • Has an ‘affidavit of service’ been sworn/affirmed?
  • Has the original application form and original affidavit, plus the Court’s protection application information form (green form) been delivered to court prior to the hearing date? 
  • If you will be seeking an IAO at court, have all parties and their solicitors been notified of your intention? Note: If parties do not consent to an IAO, the IAO contest is unlikely to be heard on that day and will need to be booked for the first available date. This means you will have no IAO.
    • mother
    • father
    • significant other/s
    • young person 12+ years
    • solicitors.

Applications by emergency care

  • Has a copy of the application been served on all parties, including those whose whereabouts are known? This includes parents who may not be actively involved in the child’s life.
  • Have reasonable attempts been made to locate parents not actively involved in the child’s life or whose whereabouts are unknown? Explain.
  • Have the Children’s Court and CPLO or divisional legal officer been notified of the application? Note: These applications must be lodged by 1pm (2pm for Secure Welfare applications) in Melbourne (rural divisions check with your local court or divisional legal officer). A bail justice hearing is not required if the child will be brought before the children’s court within 24 hours of taking the child into emergency care. If the child cannot be brought before the Court within 24 hours, or if there are exceptional circumstances, then a bail justice hearing will need to be arranged.
  • Have you completed the Court’s protection application information form (green form) and provided it to the Court?
  • If you will be seeking an IAO at court, have you decided on the conditions you will be seeking using the court proforma (pink form)? Will you be seeking an undisclosed placement?

Court reports

  • What disposition is in the child’s best interests?
  • Does the disposition align with the permanency objective for the child?
  • What is the rationale for the recommendation, taking into consideration the best interests principles?
  • The disposition report must include, pursuant to s. 558, CYFA:
    • the case plan
    • recommendations concerning the order, including conditions where relevant
    • if the report recommends other than parental care, steps taken to provide the services necessary to enable the child to remain in the care of a parent
    • the department’s advice about the matters set out in s. 276A, where applicable
    • any other information the Court has directed or required by regulations (relating to r. 16 re suitable person IAO, or r. 18 re making a permanent care order).
  • Have you included the conditions of the order you are seeking in the report? See court proforma (pink form).

  • To whom and when was the court report distributed (reports must be completed and distributed three days prior to the court hearing date, see s. 554, CYFA):

    • mother                                              DATE: __/__/____
    • mother’s solicitor                              DATE: __/__/____
    • father                                                DATE: __/__/____
    • father’s solicitor                                DATE: __/__/____
    • significant other/s                             DATE: __/__/____
    • significant other/s solicitor                DATE: __/__/____
    • child/young person                           DATE: __/__/____
    • child’s/young person’s solicitor         DATE: __/__/____
    • CPLO or divisional legal officer        DATE: __/__/____
    • Children’s Court                               DATE: __/__/____
    • other parties                                     DATE: __/__/____
  • Have the application and disposition reports been discussed with the child or young person and parents?
  • Are the parties consenting to the application, disposition and conditions?

Court attendance/legal representation

  • Which parties are attending court?
    • mother
    • father
    • significant other/s
    • child/young person 10+ years
    • other parties.
  • Are the parties legally represented? If so, by whom? If they wish to be unrepresented, list as U/R.
    • mother’s solicitor:
    • father’s solicitor:
    • significant other/s solicitor:
    • child/young person’s solicitor:
    • other/s solicitor:
  • If parents do not want legal representation and are consenting to the proving of the application and/or the making of the order and/or the conditions of the order, have they each signed a letter of consent? Ensure the original letter is delivered to the court and a copy faxed to the CPLO or divisional legal officer.
    • mother
    • father
    • significant other/s.
  • Has the child/young person aged 10+ years given instructions to a solicitor? Children are not required to attend court unless the child expresses a wish to do so, or the Court orders that the child attend or the CYFA requires that the child attend (s. 261A of the CYFA). All children should be given the opportunity to decide whether or not to attend the Court (unless the Court has otherwise ordered). Children aged 10 years and over should be advised that they must still provide instruction to a legal representative, even if they choose not to attend court.
  • If you think you do not need to attend court, have you confirmed this with the CPLO or divisional legal officer?

Court security

Contact court or police to arrange security at court if there are worker safety issues.

Consultation

Seek legal advice from CPLO or divisional legal officer prior to the hearing date and throughout the court process.

Consult with your supervisor and ensure you have their endorsement for the application, the grounds, reasons for application and disposition and the conditions of the orders sought.

CRIS

Update court screen in CRIS.

Chronology

Prepare a chronology of relevant case events in point form. Include:

  • Court dates and outcomes.
  • Professional assessments (not opinion).
  • Date and details of the protective intervention report (ensure that reporter details or any information that identifies the reporter are not included).
  • List the protective concerns and the basis for these, for example: 
    • The protective concern is physical abuse of the child by the parent and the basis for this is the medical report or observation at access. 
    • It is very important to be clear and specific about what the protective concerns are and the evidence you intend to use to prove them. Courts like to be provided with dates/ times/ observations etc. 
  • Significant interviews/contacts with the family.
  • Incidents of abuse.
  • Attempts at reunification, including dates and outcomes.
  • If not included in the court report, a list of all contact visits specifying:

    • date of contact
    • who was present
    • place of contact
    • summary of what occurred on that date, the worker’s observations, etc.
  • A list of all reports specifying:
    • the author of the report
    • the date of the report
    • the type of the report
    • who the report concerns.
  • A list of all meetings specifying:
    • date of the meeting
    • who attended the meeting
    • if a parent did not attend the meeting:
      • whether the parent was invited
      • if so, how and when this notice was given
      • how and when was the decision of the meeting communicated to the parent.
  • Meeting information is important as it informs the Court as to the efforts made in ensuring the parents involvement in the decision-making process and, likewise, it indicates the parents interest or non-interest in this process. This information should also be easily accessible as you may be asked questions about it at court.
  • A list of all witnesses and subpoenas.
  • Rationales for all decisions and bottom lines. For example, decision to issue a protection application by emergency care as opposed to by notice, recommended disposition rather than other dispositions, conditions, expectations of the child or young person and their parents, etc.

File preparation

  • Tag the paper file for significant dates and information as this assists you to efficiently access file notes during cross-examination. It may assist you to colour code the file for dates and information and the protective concerns relevant to the case. This includes interviews, disclosures, incidents, access, medical reports, discussions with professionals etc. Note that whilst giving evidence you should exhaust your memory before referring to the file notes. Seek permission from the Magistrate to refer to the file notes.
  • Compile all court reports and any other medical/psychological reports. Place departmental reports in chronological order and ensure that you have all other professional reports/assessments.
  • Prepare a report for the contest hearing or a detailed addendum report. This should outline to the Court what has happened since the last court hearing. If other professionals have information relevant to the case, then it is recommended that a report be prepared by each of these professionals for the contest hearing. 
  • Ensure that all reports that will be relied upon have been provided to all the other legal parties involved in the contest hearing.
  • Prepare and provide unmarked copies of all reports to the Judge or Magistrate. Keep this material in a separate file so that it can be easily located when you are asked questions about specific matters at court. 

Preparing for the contest hearing and giving evidence

Prepare yourself:

  • Understand the court processes in relation to evidence in chief/cross examination/re-examination. Witnesses cannot hear evidence of other witnesses before them (DHHS worker is usually excluded from this as she/he needs to be there to give instructions to the barrister).
  • Once you have been sworn in the witness box, your barrister cannot discuss your evidence with you, including during the breaks.
  • If you speak to the family during the breaks, do not enter into discussions about the contested issues.
  • Exhaust your memory before referring to the file notes. If you want to refer to the file notes, you must seek permission from the Magistrate.

When giving evidence:

  • Be very familiar with the file (including all reports).
  • Consider weaknesses in the case.
  • During the preparation period your barrister has an obligation to indicate the likelihood of success and point out weaknesses, which may be areas to concede or negotiate settlement.
  • Be prepared to be cross-examined about these issues. You may want to make a list of possible questions and prepare responses.
  • Role-play giving evidence with your supervisor or legal officer.
  • Be clear about your risk assessment and the difference between fact, professional assessment and opinion.

Being a witness:

  • Try to remain calm. Do not feel under pressure to respond quickly; listen, pause and think first.
  • Keep answers short and clear.
  • Avoid reacting to attacks on you personally or on your professionalism, do not be angry or defensive.
  • When being cross-examined, address your replies to the bench (Magistrate).
  • Remember that cross-examination is designed to destroy evidence in chief, elicit new facts in favour of the opposing case, gain concessions from the witness and attack the witness’s credibility.
  • Do not try to answer questions that you do not know the answer to, answer only the question put to you and avoid professional jargon.
  • If you make an error or omission in your evidence, acknowledge it to the court, do not gloss over it, and answer honestly and clearly.
  • Be prepared to concede a point if an alternative view is possible but improbable.
  • If you refer to research in your report/evidence, be able to explain why it is relevant to the case.
  • Be aware of the different types of questioning used by barristers in cross-examination.
  • If you cannot remember the question or are confused about what is actually being asked, ask for the question to be repeated or clarified.

 

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