Witness summons

Follow this procedure when a witness is required to give evidence in the Children’s Court.

Introduction

Should a witness be required to provide evidence to the Court in a hearing, an application to issue a witness summons (commonly known as subpoena) needs to be made to the Children’s Court.

For additional information see Children's Court witness summons - advice.

Procedure

Case practitioner tasks

  • Seek advice from the CPLO or divisional solicitor about which witnesses to call (if in doubt).
  • Contact witnesses and discuss with them their availability and the nature of their evidence. Inform witnesses of the subpoena and that they should be on stand-by and not attend court unless advised to do so by you, the CPLO or the divisional legal officer.  This is to prevent all witnesses attending court on the first day.
  • Discuss with your barrister or solicitor when each witness is likely to be required and keep each witness informed of this.
  • If you need police to give evidence, the Victoria Police Subpoena Management Unit (SMU) provides a central management point for all witness summonses directed towards the Chief Commissioner of Police and police members.
    • Do not forward witness summonses to the police member involved.
    • If police are required to give evidence within seven days, contact SMU immediately to make arrangements.
    • Any child protection witness summonses that involves the production of documents by police must be handled by SMU.
    • If you need help with the wording of witness summons schedules to identify specific documents, the SMU will assist.  
    • All witness summons involving police should be directed to: Subpoena Management Unit, Customer Service Centre, 637 Flinders Street, Melbourne 3000. Any queries or complaints should be directed to the Subpoena Management Unit on: (03) 9247 6954, (03) 9247 5254 or (03) 9247 5959 or email: subpoenamanagent.rsd@Police.vic.gov.au.
  • The Children’s Court will coordinate the issuing of the summons for the court clinician to give evidence.
    • The CPLO or divisional solicitor will place a s. 550 order on the court minutes to reflect this.
  • Complete Form 37 witness summons.
    • Consider if you need the witness to attend, or produce for examination any documents in their possession, or both.
    • Wherever possible, seek a written report from any professional subpoenaed to give evidence. 
    • As a ‘model litigant’ the department is obliged to call all relevant witnesses who have knowledge of the family. 
    • Advise the witness if you intend to serve a summons.
    • Departmental employees do not need to be subpoenaed. They can simply be advised to attend at a suitable time.
    • Serve copies of Form 37 on the witnesses and complete affidavits of service. See Affidavits and statutory declarations. A witness summons must be served on a witness in a reasonable time before the return date.
    • Deliver a copy of the summons to the witness personally. Do not leave a copy at their last or most usual place of residence or business nor with a person who apparently resides or works there.
    • You must give the witness conduct money, usually the cost associated with travel to and from court on public transport.
    • If you are unable to serve a witness, seek approval from your supervisor to employ a 'process server' to serve the document.
    • File the affidavit of service in the Children’s Court.
  • If a self-employed professional is attending to give evidence, negotiate their fee to appear prior to the hearing date.
  • If Form 37 is issued but the application is adjourned, the original witness summons is still valid.
    • Advise the witnesses of the adjournment in writing.
    • If a witness refuses to attend court on the original witness summons, issue a further witness summons with reasonable notice.

Supervisor tasks

  • Provide ongoing supervision and consultation.
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