Introduction
The centralised Child Protection Subpoena Unit (the Unit) sits within the Freedom of Information Unit and is responsible for complying with subpoenas for child protection documentation, served on the department. This procedure applies to all closed and open child protection cases.
A subpoena may also be called a 'witness summons' or 'summons'. All three documents have the same legal effect.
Procedure
Case practitioner tasks
- If served a subpoena calling for child protection documentation, immediately forward the subpoena to the Child Protection Subpoena Unit at childprotectionsubpoenaunit@dffh.vic.gov.au
- Send the hard copy of the subpoena document and the accompanying conduct money to the Unit at Level 23, 50 Lonsdale Street, MELBOURNE VIC 3000.
- Ensure CRIS is up to date. If there are documents that are too large to be uploaded to CRIS, please contact the Unit to discuss.
- In instances where there are serious safety concerns for the children/family members, ensure you have marked sensitive addresses as withheld and phone numbers as silent in CRIS.
- Ensure that the Unit is notified throughout the court proceedings of:
- A contest being adjourned,
- A contest being vacated (so that the Unit doesn’t unnecessarily work on preparing a file),
- Matters involving lengthy adjournments – liaise with the Unit to ensure that a top-up of material can occur in a timely and planned way.
Please remember that the Unit staff members are not present to hear court outcomes, so there is a reliance on the child protection practitioner to keep the Unit informed of all future subpoena requirements.
- A subpoena that requires a specific child protection practitioner to give evidence must be served personally on the practitioner who is required to give evidence, unless the practitioner agrees someone else can accept service on their behalf. See Court preparation checklist for more information.
- If the subpoena requests the personal appearance of an individual and the production of documents, it may be sufficient for the production of the records only (that is, direct evidence from a staff member may not be necessary). Child protection practitioners can make enquiries of the person or law firm that initiated the subpoena to clarify this and, if necessary, contact the department's Legal Services for further advice.
Supervisor tasks
- Provide ongoing supervision and consultation.
Team manager tasks
- Provide ongoing supervision and consultation.
Child Protection Subpoena Unit Officer/Adviser tasks
Service of a subpoena cannot be refused by the department unless:
- the subpoena was not issued by a court, and/or
- the subpoena was issued without 'conduct money' (the amount of conduct money required to be paid differs in each court or tribunal. For County Court, Children's Court, Magistrate and Supreme Courts, the amount required is $10. For Federal Circuit Court and Family Court, the amount is $25. For any interstate court, the amount is $55).
Subpoenas can be served via email (however, conduct money and the sealed subpoena would need to follow in the post).
Subpoenas must have a court stamp and must indicate which party requested that it be issued.
If you are unsure of the validity of a subpoena you should seek legal advice immediately.
- Read the subpoena carefully to determine exactly what is required. If material from other business units is required, forward the subpoena to them immediately.
- Reconcile conduct monies received and forward cheques and cash to accounts receivable
- Register the subpoena in TRIM. Record the amount of conduct money provided.
- If the child protection file is open, contact the allocated child protection practitioner (CPP) and their line manager to advise a subpoena has been served. Ask that CRIS be fully updated before the CRIS bulk print is conducted and that any serious safety concerns be communicated to the Unit.
- Determine whether there are grounds for objection to the subpoena. Objections are complex and rare. See 2221 Responding to subpoenas – advice for further information. Seek legal advice if an objection is to be lodged.
- If the department cannot meet the subpoena deadline (even if it is made first priority), contact the court that issued the subpoena to seek an extension. Propose an alternative and realistic date to the court.
In some cases, the court will direct the department to contact the party who initiated the subpoena, requiring the department to explain personally why it cannot meet the deadline.
- In instances where the schedule of the subpoena calls for all documentation, a Unit team leader, should contact the issuing party to negotiate limiting the scope of the schedule.
- Bulk print the CRIS case notes, from the categories of documents subpoenaed, that relate to each child named on the subpoena.
- Combine the PDFs into one working document.
- Read the file thoroughly.
- Apply redactions to the following:
- Details that could identify a reporter where the reporter has not consented to such disclosure (ss. 41 and 191 Children, Youth and Families Act 2005 [CYFA])
- Documents prepared for the purpose of obtaining or providing legal advice (s. 199 CYFA), including any emails between child protection practitioners and Legal Services (as they attract legal professional privilege).
- Confidential Court Reports prepared for the Children’s Court (s. 552 CYFA). These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents.
- Conciliation Conference (CC) evidence (s. 226 CYFA)
- Children’s Court Clinic Reports (ss. 552 and 562(4)(5) CYFA). These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents.
- Judicial Resolution Conference material (s. 527(A) CYFA). These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents.
- A third party (i.e. psychiatrist) has prepared an assessment report and has included a clear disclaimer that their report should not be disseminated without the author’s consent. These reports are removed as a departmental policy decision only.
- These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents.
- Information that needs to be protected for serious safety reasons (for example, the new address of a victim of family violence). This information is removed as a departmental policy decision.
- In criminal proceedings only, any communications between a victim of sexual abuse and any doctor or counsellor must be removed under s.32C Evidence (Miscellaneous Provisions) Act 1958 (unless the court has granted leave for this information to be released).
See 2221 Responding to subpoenas – advice for additional information.
- Include a detailed covering letter addressed to the court registrar. This letter needs to:
- Explain the handling of the documentation and list any exemptions which have been applied.
- State "When the Court no longer requires the documents, please ensure that they are disposed of in a secure manner by shredding or placing in a confidential documents bin. We no longer require the documents to be returned to the department."
- Ensure a copy of the subpoena included at the top of redacted file, along with the letter.
- Record the response to the subpoena in TRIM, ensuring both working documents and final redacted versions are stored for future reference.
- Confidential Court, third party, Judicial Resolution Conference and Children’s Court Clinic Reports are submitted to the court in separate pdfs from the redacted file. This allows for the court to determine who is entitled to view the material. Ensure appropriate cover sheets are included.
- Electronically submit the documentation to the registrar or appropriate court / tribunal official. If the court has an ePortal for submission, ensure you lodge the documents accordingly. Read the subpoena document carefully for instructions on how the documents are to be provided.
- Where possible, do not print the file. Strict electronic submission procedures have been in place since March 2020.
- Never give the file to the person who initiated the subpoena even if they request it.
- Advise the allocated CPP and their line manager when subpoenaed material has been provided to the court and ask that updates are provided to the Unit if updated material will be required by a certain date.
- If a file has been sent to court and information about the reporter or legally privileged information has not been removed from the file, contact the Child Protection Litigation Office (CPLO) or Legal Services immediately to arrange an application to the appropriate court. Once a file is delivered to court, pursuant to a subpoena, it should not be interfered with, except by order of a Judge or Magistrate.
- If the subpoena is requesting the personal appearance of a senior member of staff other than the child protection practitioner (such as the Secretary) contact the department's Legal Services.
Child Protection Subpoena Unit Supervisor tasks
- Negotiate the subpoena schedules if the request is deemed voluminous
- Provide ongoing supervision and consultation.
Child Protection Subpoena Unit Team manager tasks
- Provide ongoing supervision and consultation.