A contested hearing arises where the parties to a dispute are unable to resolve their differences and agree on the outcome. A contested hearing can arise at any time and can also exist in relation to disputes over facts or law, and is often referred to as a 'contest'.
In the Children’s Court, a contest proceeds either by submissions or by way of evidence and all parties may call witnesses. At the end of the contest, the Court rules on the evidence and submissions made and makes a decision. Sometimes the case is adjourned to a later date to allow the Court sufficient time to consider the evidence in full and prepare a decision or judgment.
In discussing the practitioner’s assessment and recommendation, the child or parents may decide to contest the application or disposition at court. The child and parents can contest:
- placement of the child via an IAO
- proposed conditions to the IAO
- the grounds of the application (protection application (PA), breach, vary, revoke, extension or permanent care)
- the disposition that is recommended (which includes the recommended order, length of the order and proposed conditions).
Contested court hearings are ordinarily not heard on the first court date but are booked in for a later hearing at a later date. The exceptions are IAO hearings resulting from a protection application or breach by emergency care and recommending a placement away from home, which must be heard immediately.
Prior to the final contested hearing, most matters will have been referred to a conciliation conference.
Contest by submission is when the legal representatives make submissions to the Court regarding their client’s case and highlight key points for the Court to consider.
This type of contest will generally occur when there is a need to urgently determine an issue on an interim basis, usually where a decision needs to be made about the placement of a child on the day of the hearing. This will usually be as a result of a PA or breach by emergency care.
After a submission contest, any party who is dissatisfied with the outcome may seek to book the matter in for a contest by oral evidence at a later date, or where grounds exist, lodge an appeal.
Contest by evidence is when the practitioner and other witnesses give evidence under oath or affirmation to the Court from the witness box or, in some cases, from a remote location via the video conferencing facilities.
This is the preferred model of contested hearing as all parties have the opportunity to test the evidence being given either directly or via their legal representative during cross examination.
Where grounds exist an appeal may be lodged following a decision being handed down.
Practitioners should consult with their divisional solicitor at the earliest possible time in all cases proceeding to contest. The divisional solicitor will:
- ensure there is sufficient evidence for the application
- identify if additional evidence is required, such as medical reports, school reports
- ensure the appropriate court process and procedures are adhered to according to legislative requirements and practice standards
- ensure child protection practitioners are clear about the issues and rationale for the initial application and recommendations
- ensure practitioners are prepared for giving evidence
- initiate contact with the legal representatives of other parties to obtain information on the matters that are being contested and to negotiate contested matters prior to the hearing, where appropriate.
See Early legal advice.
The child protection practitioner plays a pivotal role in the contest proceedings. The key aspects for the practitioner include:
- presenting the departmental case - assessment and recommendation to the Court both in writing and via oral evidence
- articulating and demonstrating how the principle of ‘best interests of the child’ has been considered and how other relevant principles have been applied to this particular matter
- issuing and serving witness summonses and coordinating attendance
- instructing Department of Health and Human Services’ counsel (barrister) or the divisional solicitor if in attendance throughout the hearing about factual matters and the rationale for the child protection assessment
- consulting with a supervisor regarding any alterations to the recommendations in the reports.
Preparation for a contested hearing requires careful consideration of the issues in dispute. The disputed issues should have been clarified via a dispute resolution conference and the directions hearing. It is vital that practitioners keep in mind what the contested issues are, for example, is the disposition in dispute or is it the application as well, as this will determine the evidence to be given by the practitioner and the witnesses to be called.
The Secretary, community services and the Court must make all decisions and take action with the best interests of the child as the paramount consideration; this includes the Aboriginal child placement principle.
The practitioner must be able to clearly articulate the risk issues for the child, present the evidence on which these concerns are based and make a clear, logical recommendation to address or minimise the risks to the child. The practitioner should also be able to clearly demonstrate how they have attempted to work with the family to address the protective concerns to date. For example, what services have the family been referred to and how has the practitioner encouraged or facilitated the family to utilise the service. If services have not been referred to, provide a rationale why not.
For additional information, see Court preparation checklist.
Child protection practitioners should ask all professional witnesses to provide a written report for the contested hearing. Such requests should be made as early as possible to allow witnesses sufficient time to complete the report. The summons issued to all professional witnesses should include production of the report and all file notes. See procedure Witness summons for tasks that must be undertaken.
Evidence will be given in the following way:
Evidence in chief – the Department of Health and Human Services’ barrister will ask questions of the child protection practitioner (or other departmental witnesses). The court report should provide the basis for this evidence. This is an opportunity for the practitioner to clearly state the department’s case.
Cross-examination – is the opportunity for the other parties lead representative (or an unrepresented party) to ask questions in court of a witness who has given evidence in chief.
Re-examination – the department’s barrister has the opportunity to ask questions of the child protection practitioner (or other departmental witness) to clarify any matter that may have arisen in cross-examination.
Preparation for a contested hearing should commence as soon as the contested hearing is booked. This preparation should be undertaken in close consultation with the supervisor and divisional solicitor.
Some tips to prepare yourself for a contested hearing:
- remember to address the magistrate, not the barrister asking the questions
- be familiar with all your relevant qualifications and the date you obtained these
- when giving your address, give your professional address
- remember to take your time and answer only when you are ready.