Appeals to the County or Supreme Court

Follow this procedure when an appeal has been lodged with the County or Supreme Courts.

Introduction

Appeals can be lodged against decisions made in the Children’s Court.  These procedures apply when a parent advises they have lodged an appeal, or when child protection decides to mount an appeal or judicial review, to the County or Supreme Court including:

  • appeals against interim accommodation orders (IAOs)
  • appeals against temporary assessment orders (TAOs)
  • appeals to the County Court or Supreme Court
  • appeals to the Supreme Court on a question of law
  • Supreme Court judicial reviews. 

For addtional information see Appeals- advice.

Procedure

Case practitioner tasks

Appeals initiated by a parent

  • Advise supervisor, team manager and CPLO or a divisional solicitor or legal officer if served with a notice of appeal.

Appeals initiated by child protection

  • Consult with your team manager, area manager and CPLO or divisional legal officer if considering an appeal or judicial review. If the initial review suggests a possible appeal, the area manager will consult with the child protection operations manager.
  • See Appeals - advice.

Appeals may be appropriate where child protection determines that a child remains at risk of significant harm following a Children’s Court decision, the Court decision places impractical or highly onerous requirements on the department or it is assessed the Children’s Court has made an error of law.

 

Management and legal consultation is required prior to recommending an appeal or judicial review. The divisional Deputy Secretary must endorse any appeal or judicial review.  The divisional Deputy Secretary will consult the Director, Statutory and Forensic Services Design.

  • If the decision to lodge an appeal or judicial review is endorsed, seek legal advice from the CPLO or a divisional solicitor, court officer or legal officer.
  • Lodge an application with the relevant court for an appeal.
    • Lodge a ‘Form 2-2d Notice Of Appeal And Undertaking To Prosecute Under Section 328 CYFA, County Court (Miscellaneous) Rules 2009’, with the registrar of the Children’s Court in the Secretary’s name, if the appeal is made to the County Court. (See Court owned forms.)
    • Lodge a ‘Notice of Appeal - Form 58A’ (for IAO appeals) or ‘Form 58B’ (for final orders made by the President of the Children’s Court) directly with the Supreme Court for appeals to that court. (See Court owned forms.)

Appeals against IAOs and TAOs are made to the Supreme Court. This includes the making of an IAO or dismissing an appeal for an IAO.

The Secretary may appeal to the County Court or, if the Children’s Court was presided by the President, to the Trial Division of the Supreme Court, against:

  • a protection order
  • the dismissal of a protection application or an irreconcilable difference application
  • an order requiring an undertaking where the Court has not found the child to be in need of protection
  • a therapeutic treatment order or therapeutic treatment placement order
  • the dismissal of an application for a therapeutic treatment order or therapeutic treatment placement order
  • an order varying, revoking or extending a therapeutic treatment order or therapeutic treatment placement order
  • an order varying or revoking a family preservation order, family reunification order or permanent care order
  • an order extending a family preservation order, family reunification order or care by Secretary order
  • an order revoking a care by Secretary order or long-term care order
  • an order made following a breach of a family preservation order
  • the dismissal of an application for any of the above orders
  • a permanent care order or the dismissal of an application for a permanent care order.

The Secretary may appeal to the Supreme Court on a question of law.

  • Serve the issued notice of appeal on all parties within 30 days of the Children’s Court order, unless it is an urgent appeal to be heard at the Supreme Court where it will be heard within 24 hours of the Children’s Court decision.

All appeals

  • Unless the appeal is an urgent appeal, prepare an addendum report for the appeal hearing detailing the events since the Children’s Court order and serve all parties with a copy of the addendum report three days prior to the hearing date.
  • Provide unmarked copies (clean of comments or changes) of all reports to the Court.
  • Prepare the following documents:
    • chronology of relevant events including court dates, court outcomes, contact visits and home visits
    • summary of protective concerns – be specific about dates, times and observations
    • list of relevant eye witnesses and contact supervisors
    • list of all reports, specifying the author, date and type of report and who the report relates to
    • list of all meetings – be specific about dates, who attended, who was invited, how much notice was given for the meeting, and how were meeting outcomes communicated particularly to the parents.
  • Advise witnesses of the intention to issue subpoenas and inform them when they may be required to give evidence. Issue and serve subpoenas for witnesses either personally or by a process server.
  • If the file has been subpoenaed, prepare the file (CRIS and paper file) and deliver the file to the Court registrar with a copy of the subpoena and cover letter that includes a return address for the file to be returned at conclusion of the appeal. Protect or remove reporter details, any information that may lead to the identification of the reporter and any legally privileged information by placing the material in a sealed envelope in the front of the file marked ‘Not to be opened except at the direction of a judge’. 
    • Contact CPLO or divisional legal officer if there is any information in the file that should be removed.
  • Seek legal advice from the CPLO, divisional solicitor or legal officer before the hearing date.
  • With your supervisor and manager, liaise with the DHHS barrister to ensure comprehensive preparation for the appeal.
  • Contact court or police to arrange security if there are worker safety issues.
  • Complete CRIS requirements including court screen and record of activity, decisions and rationales.

Supervisor tasks

  • Provide ongoing supervision and consultation.
  • With the practitioner and your manager, liaise with the DHHS barrister to ensure comprehensive preparation for the appeal.

Area manager tasks

  • Provide consultation before an appeal application is initiated.
  • Liaise with the DHHS barrister to ensure comprehensive preparation for the appeal.

Child protection operations manager tasks

  • If recommending an appeal, brief the divisional Director, Child Protection.
  • If circumstances permit, arrange a conference to consider the decision to appeal with the following attendees:
    • Assistant Director Litigation
    • CPLO lawyer or divisional lawyer
    • CPLO manager or divisional lawyer’s manager
    • divisional principal practitioner or statewide principal practitioner
    • child protection operations manager
    • area manager
    • team manager
    • child protection practitioner.

CPLO or divisional lawyer tasks

  • Provide consultation before an appeal application is initiated.
  • Involve CPLO manager or divisional lawyer’s manager in initial discussions regarding the decision to appeal.
  • Provide instructions to the Assistant Director Litigation (CPLO) regarding the appeal or judicial review, including instructions to brief counsel.

Director, Child Protection tasks

  • Provide consultation before an appeal application is initiated.
  • Consult with Director, Statutory and Forensic Services Design Branch prior to recommending an appeal or judicial review.
  • If recommending an appeal, brief the divisional Deputy Secretary and seek written endorsement.
  • Brief the Secretary, Minister and media unit about the appeal or judicial review as appropriate.

CPLO manager or divisional legal officer’s manager tasks

  • Provide consultation before an appeal application is initiated.

Director, Statutory and Forensic Services Branch tasks

  • Provide consultation before an appeal application is initiated.

Divisional Deputy Secretary tasks

  • Authorise and provide written approval for the appeal application.

Assistant Director Litigation tasks

  • Inform the Director Legal Services of the outcome of consultations and any instructions received in relation to the appeal or judicial review.

Additional information

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