The Law Handbook 2024

39 1.4 The Children’s Court NOTE The law in this chapter is current as at 1 September 2023. Terms defined In the Children, Youth and Families Act 2005 (Vic) (‘ CYF Act ’) (s 3), ‘ proceeding ’ means: any matter in the court, including a committal proceeding, but does not include the exercise by a registrar of any jurisdiction, power or authority vested in the registrar under schedule 3. For criminal cases, ‘ child ’ is defined as (s 3 CYF Act): a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the court. For Child Protection cases, a child is defined as a person under 17 years old (unless they are the subject of an ongoing Child Protection Order). For the purposes of this chapter, the terms ‘child’ and ‘young person’ are used interchangeably and accord with the above definition unless specified to the contrary. The ‘ president ’ of the Children’s Court is the head of the court and is a judge of the County Court. The president hears cases in the same way as magistrates at the court. What matters can the Children’s Court hear? The Children’s Court of Victoria has jurisdiction under the CYF Act to hear cases involving children and young people up to the age of 18 years, and some cases, up to 19 years. The Children’s Court has two main divisions: 1 the Family Division; 2 the Criminal Division. Child protection and family matters The Family Division of the Children’s Court has jurisdiction to hear a range of applications and to make a variety of orders upon finding that a child needs protection, or that there are irreconcilable differences between a child and their parents (where the differences seriously disrupt the care and control of the child). In the Family Division, the court also has the power to hear applications relating to intervention orders under the Family Violence Protection Act 2008 (Vic) and the Personal Safety Intervention Orders Act 2010 (Vic) where the ‘affected family member’ (family violence matters) or ‘affected person’ (personal safety matters) or the respondent, is a child. Criminal matters The Criminal Division of the Children’s Court has jurisdiction to hear and determine summarily all offences (other than offences resulting in death) where the alleged offender was under the age of 18, but of or above the age of 10 years, at the time the offence was committed, and under the age of 19 when proceedings commenced in the court. When charges arise from death – murder, attempted murder, manslaughter, child homicide, defensive homicide, culpable driving causing death, and arson causing death – committal proceedings are conducted in the Children’s Court, then the matter is heard in the County or Supreme Court, depending on the charge. However, legislative changes introduced in 2018 mean that many serious offences that would have been heard in the Children’s Court are likely to now be heard in the County Court instead. These serious offences include intentionally causing serious injury in circumstances of gross violence, aggravated home invasion, aggravated carjacking, and acts of terrorism. Contributor: James Gorman, Partner, Gorman & Hannan