Chapter 6 Children’s Court procedure
92 Proceedings to which this Chapter applies
This Chapter applies to proceedings before the Children’s Court under this Act.
93 General nature of proceedings
(1) Proceedings before the Children’s Court are not to be conducted in an adversarial manner.(2) Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.(3) The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.(4) In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.(5) Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.
94 Expedition and adjournments
(1) All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.(2) For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.(3) The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.(4) The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that:(a) it is in the best interests of the child or young person to do so, or(b) there is some other cogent or substantial reason to do so.
95 Court to explain proceedings to children and young persons
(1) The Children’s Court must take such measures as are reasonably practicable taking into account the age and developmental capacity of the child or young person to ensure that a child or young person in proceedings before it understands the proceedings and, in particular, that the child or young person understands:(a) the nature of any assertions made in the proceedings, and(b) the legal implications of any such assertion.(2) Without limiting the generality of subsection (1), the Children’s Court must, if requested by the child or young person or by some other person on behalf of the child or young person, explain to the child or young person:(a) any aspect of the Children’s Court’s procedure, and(b) any decision or ruling made by the Children’s Court,in or in relation to the proceedings.(3) Without limiting the generality of subsection (1), the Children’s Court must ensure that the child or young person has the fullest opportunity practicable to be heard, and to participate, in the proceedings.
96 Attendance of child or young person, parents and others
(1) In proceedings before it with respect to a child or young person, the Children’s Court may, on its own initiative or at the request of any party to the proceedings, require the attendance at the court house where the proceedings are conducted:(a) of the child or young person and of any parent of the child or young person, or(b) of any other person who has, or has had, care responsibility for the child or young person, or(c) if the whereabouts of the child or young person is unknown to the Children’s Court—of any other person the Children’s Court has reasonable cause to believe knows, or has information concerning, the whereabouts of the child or young person.(2) If a child or young person does not wish to be present before the Children’s Court during the hearing of any proceedings, the child’s or young person’s wishes are to be taken into account by the Children’s Court.(2A) The fact that a child or young person is presumed by section 99C (1) to have the capacity to instruct his or her legal representative does not of itself mean that the child or young person is required to attend the Children’s Court to give those instructions. Such a child or young person is required to attend only if required under this section.(3) A child or young person is not required (except as provided by subsection (4)) to give evidence in the Children’s Court.(4) Despite subsection (3), the Children’s Court may require a parent of the child or young person who is the subject of the proceedings who is himself or herself a child or young person to give evidence in the Children’s Court.(5) A person referred to in subsection (1) (c) may be required to give to the Children’s Court such information that the person has about where the child or young person is or may be located.(6) If the Children’s Court decides to require any person to attend a court house under subsection (1) it may issue to the person a notice in accordance with Part 2 requiring the person to attend as directed in the notice (a care proceedings attendance notice).Note. Section 109B enables the Children’s Court to issue a warrant for the arrest of a person who fails to attend as directed by a care proceedings attendance notice.(7) In this section:parent of a child or young person includes a birth parent, or an adoptive parent, of the child or young person who does not have parental responsibility for the child or young person.
97 Effect of failure of attendance
If a parent of a child or young person who has been given notice under section 64 does not attend the Children’s Court on the hearing of the application, the Children’s Court may proceed in the absence of the parent.
(1) In any proceedings with respect to a child or young person:(a) the child or young person and each person having parental responsibility for the child or young person, and(b) the Director-General, and(c) the Minister,may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.(2) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.(2A) If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.
99 Appointment of legal representative by Children’s Court
(1) The Children’s Court may appoint a legal representative to act for a child or young person if it appears to the Children’s Court that the child or young person needs to be represented in any proceedings before it.(2) A legal representative for a child or young person who has not been appointed by the Children’s Court may appear only with its leave.(3) The Children’s Court may withdraw its leave at any time and for any reason (including the child or young person informing the Children’s Court that he or she does not wish to be represented by the legal representative).
99A Legal representative to act as independent legal representative or direct legal representative
(1) A legal representative for a child or young person is to act as a direct legal representative if:(a) the child or young person is capable of giving proper instructions, and(b) a guardian ad litem has not been appointed for the child or young person.(2) A legal representative for a child or young person is to act as an independent legal representative if:(a) the child or young person is not capable of giving proper instructions, or(b) a guardian ad litem has been appointed for the child or young person.Note. Section 100 (4) provides that a legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.
99B Child under 12 presumed incapable of giving proper instructions
(1) There is a rebuttable presumption that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative.(2) However, the Children’s Court may, on the application of a legal representative for a child who is less than 12 years of age, make a declaration that the child is capable of giving proper instructions.
99C Child 12 or older and young person presumed capable of giving proper instructions
(1) There is a rebuttable presumption that a child who is not less than 12 years of age, or a young person, is capable of giving proper instructions to his or her legal representative. This presumption is not rebutted merely because the child or young person has a disability.(2) However, the Children’s Court may, on the application of a legal representative for a child who is not less than 12 years of age, or a young person, make a declaration that the child or young person is not capable of giving proper instructions.
99D Role of a legal representative
Without limiting the role of a legal representative for a child or young person in proceedings before the Children’s Court:(a) the role of a direct legal representative includes the following:(i) ensuring that the views of the child or young person are placed before the Children’s Court,(ii) ensuring that all relevant evidence is adduced and, where necessary, tested,(iii) acting on the instructions of the child or young person, and(b) the role of an independent legal representative includes the following:(i) if a guardian ad litem has been appointed for the child or young person—acting on the instructions of the guardian ad litem,(ii) interviewing the child or young person after becoming the independent legal representative,(iii) explaining to the child or young person the role of an independent legal representative,(iv) presenting direct evidence to the Children’s Court about the child or young person and matters relevant to his or her safety, welfare and well-being,(v) presenting evidence of the child’s or young person’s wishes (and in doing so the independent legal representative is not bound by the child’s or young person’s instructions),(vi) ensuring that all relevant evidence is adduced and, where necessary, tested,(vii) cross-examining the parties and their witnesses,(viii) making applications and submissions to the Children’s Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,(ix) lodging an appeal against an order of the Children’s Court if considered appropriate.
100 Guardian ad litem—child or young person
(1) The Children’s Court may appoint a guardian ad litem for a child or young person if it is of the opinion that:(a) there are special circumstances that warrant the appointment, and(b) the child or young person will benefit from the appointment.(2) Special circumstances that warrant the appointment of a guardian ad litem may include that the child or young person has special needs because of age, disability or illness or that the child or young person is, for any reason, not capable of giving proper instructions to a legal representative.(3) The functions of a guardian ad litem of a child or young person are:(a) to safeguard and represent the interests of the child or young person, and(b) to instruct the legal representative of the child or young person.(4) A legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.
101 Guardian ad litem and amicus curiae—parents of child or young person
(1) The Children’s Court may:(a) appoint a guardian ad litem for either or both of the parents of a child or young person, or(b) request the legal representative of a parent or the parents of a child or young person to act as amicus curiae,if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.(2) Circumstances that warrant the appointment of a guardian ad litem or a request for a legal representative to act as amicus curiae may include that the parent of a child or young person has an intellectual disability or is mentally ill.(3) The functions of a guardian ad litem of a parent of a child or young person are:(a) to safeguard and represent the interests of the parent, and(b) to instruct the legal representative of the parent.(4) A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.
(1) A participant in proceedings before the Children’s Court may, with the leave of the Children’s Court, be accompanied by a support person.(2) The leave of the Children’s Court must be granted unless:(a) the support person is a witness in the proceedings, or(b) the Children’s Court, having regard to the wishes of the child or young person with respect to whom the proceedings are brought, is of the opinion that leave should not be granted, or(c) there is some other substantial reason to deny the application.(3) The Children’s Court may withdraw its leave at any time if a support person does not comply with any directions given to the support person by the Children’s Court.(4) A support person cannot give instructions on behalf of the participant.(5) A support person may, with the leave of the Children’s Court, act as an interpreter for a participant if the participant does not sufficiently speak or understand English.(6) Without limiting section 254, that section applies to a support person who acts as an interpreter for a participant.
The Children’s Court, at its discretion, may obtain and consider the views of any siblings of a child or young person with respect to whom proceedings are brought and must take account of the interests of any siblings in determining what orders (if any) to make in the proceedings.
104 Exclusion of child or young person from proceedings
(1) At any time while the Children’s Court is hearing proceedings with respect to a child or young person, the Children’s Court may direct the child or young person to leave the place where the proceedings are being heard.(2) If any non-court proceedings are to be held with respect to a child or young person, the Children’s Court may direct that the child or young person is not to be present at the place where the non-court proceedings are to be held at any particular time during the proceedings.(3) The Children’s Court may give a direction under this section only if it is of the opinion that the prejudicial effect of excluding the child or young person is outweighed by the psychological harm that is likely to be caused to the child or young person if the child or young person were to remain or be present.(4) If the Children’s Court gives a direction under subsection (1) with respect to a child or young person, and if it is of the opinion that it is in the interests of the child or young person to do so, it must also give a direction with respect to all persons who are engaged in preparing reports of the proceedings for dissemination through a public news medium to leave the place where the proceedings are being heard.
104A Exclusion of particular persons from proceedings
(1) At any time while the Children’s Court is hearing proceedings with respect to a child or young person, the Children’s Court may direct any person (other than the child or young person) to leave the place where the proceedings are being heard.(2) If any non-court proceedings are to be held with respect to a child or young person, the Children’s Court may direct any person (other than the child or young person) not to be present at the place where the proceedings are to be held at any time during the proceedings concerned.(3) The Children’s Court may give a direction under this section only if it is of the opinion that it is in the interests of the child or young person that such a direction should be given.(4) The powers exercisable by the Children’s Court under this section may be exercised even if the person to whom a direction is given is directly interested in the proceedings concerned.
104B Exclusion of general public from proceedings
At any time while the Children’s Court is hearing proceedings with respect to a child or young person, any person who is not directly interested in the proceedings must, unless the Children’s Court otherwise directs, be excluded from the place where the proceedings are being heard.
104C Entitlement of media to hear proceedings
At any time while the Children’s Court is hearing proceedings with respect to a child or young person, any person who is engaged in preparing a report of the proceedings for dissemination through a public news medium is, unless the Children’s Court otherwise directs, entitled to enter and remain in the place where the proceedings are being heard.
105 Publication of names and identifying information
(1) The name of a child or young person:(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or(d) who is the subject of a report under section 24, 25, 27, 120, 121 or 122,must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of the child or young person concerned until:(a) the child or young person attains the age of 25 years, or(b) the child or young person dies,whichever occurs first.(2) A person who publishes or broadcasts the name of a child or young person in contravention of subsection (1) is guilty of an offence.Maximum penalty: 200 penalty units or imprisonment for a period not exceeding 2 years, or both, in the case of an individual or 2,000 penalty units in the case of a corporation.
(3) Subsection (1) does not prohibit:(a) the publication or broadcasting of an official report of the proceedings of the Children’s Court that includes the name of a child or young person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or(b) the publication or broadcasting of the name of a child or young person:(i) in the case of a child—with the consent of the Children’s Court, or(ii) in the case of a young person—with the consent of the young person, or(iii) in the case of a child or young person who is under the parental responsibility of the Minister—with the consent of the Children’s Guardian if the Children’s Guardian is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person, or(iv) in any case—if the child or young person has died.(4) For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material:(a) that identifies the child or young person, or(b) that is likely to lead to the identification of the child or young person.(5) The offence created by this section is an offence of strict liability.(6) This section does not apply in relation to criminal proceedings.Note. See section 11 of the Children (Criminal Proceedings) Act 1987.
106 Admissibility of certain statements
A statement or information made or given to a police officer by a child who is under the age of 14 years and who has exhibited sexually abusive behaviours must not be admitted in evidence in proceedings before the Children’s Court unless:(a) there was present at the place where, and throughout the period of time during which, it was made or given an adult (other than a police officer):(i) nominated by the child, or(ii) belonging to a class of persons selected by the child,(b) and the child was given (before the statement or information was made or given) an opportunity to consult with the adult in private, or(c) the Children’s Court:(i) is satisfied that there was proper and sufficient reason for no such adult to have been present at the place where, or throughout the period of time during which, the statement or information was made or given, and(ii) considers that, in the particular circumstances of the case, the statement or information should be admitted in evidence in those proceedings.
106A Admissibility of certain other evidence
(1) The Children’s Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application:(a) is a person:(i) from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987, or by a court of another jurisdiction under an Act of that jurisdiction, and(ii) to whose care and protection the child or young person has not been restored, or(b) is a person who has been named or otherwise identified by the coroner or a police officer (whether by use of the term “person of interest” or otherwise) as a person who may have been involved in causing a reviewable death of a child or young person.(2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.(3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children’s Court that, on the balance of probabilities:(a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or(b) the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person,as the case may require.(4) This section has effect despite section 93 and despite anything to the contrary in the Evidence Act 1995.(5) In this section, reviewable death of a child or young person means a death of a child or young person that is reviewable by the Ombudsman under Part 6 of the Community Services (Complaints, Reviews and Monitoring) Act 1993.
107 Examination and cross-examination of witnesses
(1) Extent of examination and cross-examination
A Children’s Magistrate may examine and cross-examine a witness in any proceedings to such extent as the Children’s Magistrate thinks proper for the purpose of eliciting information relevant to the exercise of the Children’s Court’s powers.(2) Offensive or scandalous questions
The Children’s Court must forbid the asking of, or excuse a witness from answering, a question that it regards as offensive, scandalous, insulting, abusive or humiliating, unless the Children’s Court is satisfied that it is essential in the interests of justice that the question be asked or answered.(3) Oppressive or repetitive examination
The Children’s Court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, or excuse a witness from answering questions asked during such an examination, unless the Children’s Court is satisfied that it is essential in the interests of justice for the examination to continue or for the question to be answered.(3A) Certain questions
For the purposes of this section, questions to a witness who is a parent or a primary care-giver of a child or young person the subject of a care application concerning the witness’s previous history of dealings with any child or young person are taken not to be intrinsically offensive, scandalous or oppressive.(4) Definition
In subsection (1), a reference to a Children’s Magistrate includes a reference to an authorised Magistrate within the meaning of the Children’s Court Act 1987.
108 Proceedings unaffected by pending criminal proceedings
The jurisdiction of the Children’s Court to hear and determine any proceedings with respect to a child or young person is not affected merely because criminal proceedings are pending against:(a) the child or young person, or(b) any other party to the proceedings, or(c) any other person,whether or not the criminal proceedings have arisen out of the same or similar facts as those out of which the proceedings under this Act have arisen.
Part 2 Attendance of witnesses and others and production of documents
In this Part:arrest warrant means a warrant to arrest a person issued in accordance with this Part.
care proceedings attendance notice means a care proceedings attendance notice issued under section 96.
correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.
detention centre has the same meaning as it has in the Children (Detention Centres) Act 1987.
party means the Director-General, a child or young person or parent or any other party in proceedings to which this Chapter applies.
subpoena includes any of the following:
(a) a subpoena to give evidence,(b) a subpoena for production,(c) a subpoena both to give evidence and for production.subpoena both to give evidence and for production means a written order requiring the person to whom the subpoena is addressed to attend as directed by the order as a witness to give evidence and to produce a document or thing.
subpoena for production means a written order requiring the person to whom the subpoena is addressed to attend as directed by the order and produce a document or thing.
subpoena to give evidence means a written order requiring the person to whom the subpoena is addressed to attend as directed by the order as a witness to give evidence.
warrant of commitment means a warrant to commit a person to a correctional centre, detention centre or other place of security issued under Division 5.
Division 2 Compelling attendance at proceedings
109A Form and service of care proceedings attendance notice
(1) A care proceedings attendance notice must be in writing and in the form prescribed by the rules.(2) A care proceedings attendance notice must:(a) require the person to whom it is addressed to attend at the court house where the proceedings before the Children’s Court are conducted at a specified date, time and place, and(b) state that failure to attend may result in the arrest of the person and, in the case of the child, young person or parent to which the proceedings relate, the matter being dealt with in his or her absence.(3) Notice of the date, time and place set is to be given to each other party in the proceedings in accordance with the rules.(4) The rules may prescribe additional matters to be included in care proceedings attendance notices.(5) A care proceedings attendance notice is to be served in accordance with the rules.
109B Issue of arrest warrant to compel attendance at proceedings
(1) The Children’s Court may, in accordance with Division 4, issue a warrant to arrest a person if it is satisfied that there are substantial reasons to do so and that it is in the interests of the safety, welfare or well-being of a child or young person with respect to whom proceedings before it are conducted to do so.(2) Without limiting the circumstances in which a warrant may be issued, it may be issued if:(a) the person fails to attend as required by a care proceedings attendance notice, or(b) the person is a child, young person or parent who absconds from any care proceedings with respect to the child or young person.(3) The police officer or other person executing the warrant is to bring the person before the Children’s Court, or if this is not practicable before a Registrar, as soon as possible after the arrest.(4) The Children’s Court or Registrar may:(a) in the case of an adult—if bail is not dispensed with or granted, issue a warrant of commitment in accordance with Division 5 committing the person to a correctional centre or other place of security, or(b) in the case of a young person—if bail is not dispensed with or granted, issue a warrant of commitment in accordance with Division 5 committing the young person to a detention centre or other place of security, or(c) in the case of a child—place the child in the care responsibility of the Director-General at a place approved by the Minister for the purposes of this section,and order the adult, young person or child to be brought before the Children’s Court at the date, time and place specified in the order.(5) Notice of the date, time and place set is to be given to each other party in the proceedings in accordance with the rules.(6) In this section:parent of a child or young person includes a birth parent, or an adoptive parent, of the child or young person who does not have parental responsibility for the child or young person.
Division 3 Subpoenas for attendance of witnesses to give evidence and produce documents
(1) The Children’s Court, a Children’s Magistrate or a Registrar, if requested to do so by a party to proceedings before it, may, subject to and in accordance with the rules, issue to a person named in the subpoena any of the following subpoenas:(a) a subpoena to give evidence,(b) a subpoena for production,(c) a subpoena both to give evidence and for production.(2) A subpoena to give evidence and a subpoena for production may be issued to the same person in the same proceedings.(3) A party may require a subpoena for production to be returnable:(a) on any day on which the proceedings are listed before the Children’s Court, or any day not more than 21 days before any such day, or(b) with the leave of the Children’s Court, on any other day.
109D Time for service of subpoenas
(1) A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with.(2) The Children’s Court, a Children’s Magistrate or a Registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the Children’s Court, Children’s Magistrate or Registrar.(3) A subpoena may be served by delivering it personally to the person to whom it is addressed or in any other manner prescribed by the rules.
A person to whom a subpoena issued at the request of a party is addressed is not required to attend the Children’s Court, or to produce any document or thing on any day on which attendance is required, unless an amount sufficient to meet the reasonable expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.
109F Limits on obligations under subpoenas
The person to whom a subpoena is addressed is not required to produce any document or thing if:(a) it is not specified or sufficiently described in the subpoena, or(b) the person would not be required to produce the document or thing on a subpoena for production in the Supreme Court.
(1) If the person to whom a subpoena for production is addressed is not a party to the proceedings, the subpoena is, unless the Children’s Court otherwise orders, to permit the person to produce the document or thing to the Court not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.(2) The rules may make provision for or with respect to the production of documents or things produced to the Children’s Court under subsection (1), and the return of the document or thing, and any related matters.(3) Nothing in this Part affects the operation of Division 1 (Requests to produce documents or call witnesses) of Part 4.6 of Chapter 4 of the Evidence Act 1995 to the extent (if any) that Division 1 is, under section 93, applicable in proceedings in the Children’s Court.
109H Subpoena may be set aside
(1) The Children’s Court may, on application by the person to whom a subpoena is addressed, set aside the subpoena wholly or in part.(2) Notice of an application under this section is to be filed and served as prescribed by the rules on the party on whose request the subpoena was issued.
109I Inspection of subpoenaed documents and things
(1) A party may, if the Children’s Court so orders:(a) inspect documents or things produced in compliance with a subpoena, and(b) take copies of any documents so inspected.(2) Any such order may be made on such terms and conditions as the Children’s Court thinks fit.(3) A Registrar may exercise the function of the Children’s Court to make an order under this section with the consent of the parties to the proceeding.(4) Subsection (3) does not apply if any party, the person to whom the subpoena is addressed or a person claiming privilege in respect of the document has objected to a party inspecting the documents or things produced in compliance with the subpoena.
109J Action that may be taken if person does not comply with subpoena
(1) A party who requested a subpoena may apply to the Children’s Court for the issue of a warrant in accordance with Division 4 for the arrest of the person to whom the subpoena is addressed if the person has not complied with the subpoena.(2) The Children’s Court may issue the warrant if satisfied that:(a) the subpoena was issued in accordance with this Division, and(b) the person to whom the subpoena is addressed has failed, without reasonable excuse, to comply with the subpoena.(3) The police officer or other person executing the warrant is to bring the person before the Children’s Court, a Children’s Magistrate or a Registrar, as soon as possible after the arrest.(4) The Children’s Court, Children’s Magistrate or Registrar before whom a person who is a child or young person is brought on arrest on a warrant issued under this section may:(a) place the child or young person in the care responsibility of the Director-General at a place approved by the Minister for the purposes of this section, and(b) order the child or young person to be brought before the Children’s Court at the date, time and place specified in the order.(5) The Children’s Court, Children’s Magistrate or Registrar before whom a person who is an adult is brought on arrest on a warrant issued under this section may:(a) if bail is not dispensed with or granted, issue a warrant under Division 5 committing the person to a correctional centre or other place of security, and(b) order the person to be brought before the Children’s Court at the date, time and place specified in the order.(6) Notice of the date, time and place set is to be given to the party who requested the subpoena in accordance with the rules.
109K Action that may be taken if person refuses to give evidence
(1) This section applies to a person who:(a) appears before the Children’s Court on a subpoena to give evidence, or produce any document or thing, or both, or(b) appears before the Children’s Court on bail after being arrested under a warrant after failing to comply:(i) with a subpoena to give evidence, or produce any document or thing, or both, or(ii) with a care proceedings attendance notice, or(c) is brought before the Children’s Court under a warrant of commitment after being so arrested.(2) The Children’s Court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre, detention centre or other place of security for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse:(a) to be examined on oath, or(b) to take an oath, or(c) to answer, after having taken an oath, any questions that are put to the person concerning the subject-matter of the proceedings, or(d) to produce the document or thing.Note. Division 5 sets out procedures for warrants of commitment generally.(3) However, the person is to be released before the expiration of those 7 days if the person:(a) consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or(b) produces the document or thing.(4) This Part applies in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.(5) In this section, a reference to a person who appears before the Children’s Court on bail after being arrested under a warrant after failing to comply with a subpoena includes a reference to a person in respect of whom the requirement for bail has been dispensed with after being so arrested.
109L When arrest warrants may be issued
A warrant to arrest a person may be issued on any day of the week.
(1) A warrant to arrest a person must be in the form prescribed by the rules.(2) Without limiting subsection (1), the warrant must be directed to a person permitted by section 109O to execute the warrant and must do the following things:(a) name or describe the person to be arrested,(b) briefly state the reason for the arrest,(c) order that the person be arrested and brought before the Children’s Court to be dealt with according to law or to give evidence or produce documents or things, as appropriate.(3) A warrant to arrest a person must be signed by the person issuing it and sealed with the seal of the Children’s Court.
109N Duration of arrest warrants
(1) A warrant to arrest a person must be returnable at a stated date, time and place.(2) The warrant to arrest a person may be returned and cancelled, and a further warrant may be obtained, if the person is not arrested before the warrant must be returned.
109O Persons who may execute arrest warrant
(1) A warrant to arrest a person must be directed to:(a) a named police officer, or(b) a person authorised by law to execute a warrant to arrest, or(c) the senior police officer of the area where the court is located, or(d) the senior police officer and all other police officers, or(e) generally all police officers.(2) A warrant to arrest a person may be executed by arresting the person at any place in New South Wales.
A person who is arrested under a warrant must be brought before the Children’s Court, a Children’s Magistrate or a Registrar as soon as practicable.
(1) Any party to proceedings before the Children’s Court may apply to the Court to revoke a warrant for the arrest of a person issued by the Court in relation to the proceedings.(2) The Children’s Court may, on the application of a person under subsection (1) or on its own motion, revoke any warrant to arrest a person issued by it if the Children’s Court considers it to be appropriate to do so.
Division 5 Warrants of commitment
109R Form of warrants of commitment
(1) A warrant to commit a person must be in the form prescribed by the rules.(2) Without limiting subsection (1), the warrant must be directed to a police officer and must do the following things:(a) name or describe the person to be committed,(b) direct and authorise the police officer to take and safely convey the named person to a correctional centre, detention centre or other place of security,(c) direct the police officer to deliver the named person to the officer in charge of the place,(d) direct and authorise the officer in charge of the place to receive the named person in custody and to keep the named person in custody for the period specified, or in the circumstances specified, or until the named person is otherwise lawfully released from custody.Note. A warrant of commitment must not require a person to be kept in custody for more than 7 days—see section 109K (2).
109S Procedure for taking person to correctional centre, detention centre or other place of security
(1) The police officer to whom a warrant of commitment is issued must take the named person to the correctional centre, detention centre or other place of security specified in the warrant and deliver the named person to the person in charge of the place.(2) The police officer must obtain a receipt for the delivery of the named person setting out the condition of the named person when delivered into the custody of the person in charge.
109T Defects in warrants of commitment
A warrant of commitment may not be held void because of any defect in the warrant if the warrant states that:(a) the person has been ordered to do any act or thing required to be done, and(b) there is a good and valid order to sustain the warrant.
109U Application of Bail Act 1978
(1) The Bail Act 1978 (other than Part 6) applies to a person who is brought before the Children’s Court, a Children’s Magistrate or a Registrar after being arrested on a warrant issued under this Part in relation to proceedings before the Children’s Court in the same way as it applies to an accused person, and for that purpose, bail may be granted to the person with respect to the period between the person’s being brought before the Children’s Court, a Children’s Magistrate or a Registrar and his or her attendance at those proceedings.(2) For the purposes of subsection (1):(a) the Children’s Court, a Children’s Magistrate and a Registrar may grant bail in accordance with the Bail Act 1978 to a person who is brought before the Court, Children’s Magistrate or Registrar, and(b) a reference in Part 4 (other than section 22A and Divisions 3–7), 5 or 7 of the Bail Act 1978 to a court is to be read as a reference to the Children’s Court, and(c) a reference to an authorised justice includes a reference to a Registrar.(3) A power to issue a warrant of commitment under this Part is subject to the provisions of the Bail Act 1978, as applied by this section.(4) Without limiting section 9, in taking any action or making any decision under the Bail Act 1978 as applied by this section concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration.
(1) The District Court may review any decision made by the Children’s Court or a Children’s Magistrate in relation to bail under this Division.(2) The Children’s Court may review any decision made by a Registrar in relation to bail under this Division.(3) The power to review a decision under this section:(a) may be exercised only at the request of the child, young person, parent or other person held in custody or the Director-General, and(b) includes the power to affirm or vary the decision or to substitute another decision.(4) A decision as varied or substituted must be in conformity with the Bail Act 1978 as applied by section 109U.(5) The review of a decision is to be by way of rehearing, and evidence or information in addition to, or in substitution for, the evidence or information obtained on the making of the decision may be given or obtained on the review.(6) If, on review of a decision under this Division, the Children’s Court or District Court varies the decision or substitutes another decision, section 38 of the Bail Act 1978 applies to and in relation to the decision as varied or substituted as if originally made by the court.(7) If, on review of a decision under this Division, bail for a parent or other person in custody is revoked, the Children’s Court or other reviewing body may:(a) if the person is an adult—issue a warrant in accordance with Division 5 committing the person to a correctional centre or other place of security, or(b) if the person is a child or young person—issue a warrant in accordance with Division 5 committing the person to a detention centre,and order the person to be brought before the Children’s Court at the date, time and place specified in the warrant.(8) The Children’s Court or other reviewing body may refuse a request to review a decision under this Division if it is satisfied that the request is frivolous or vexatious.(9) The regulations may make provision for or with requests for reviews, and reviews, under this Division.(10) Nothing in this section limits the rights of a person held in custody under this Part to apply for bail, and the person may so apply for bail even if the power to review a decision already made in relation to bail to the person has not been, or has not been sought to be, exercised under this section.
(1) A printed representation of a seal or signature on a warrant issued under this Part is sufficient to comply with a requirement under this Act that a warrant be sealed or signed.(2) A copy of a warrant issued under this Act (being a copy produced by means of a photographic or electronic process or facsimile transmission):(a) is as valid and effectual as the original warrant, and(b) confers the same functions as the original warrant.
109X Rules relating to subpoenas
Without limiting section 23 of the Children’s Court Act 1987, rules may be made for or with respect to the following matters:(a) the form of subpoenas,(b) the production and inspection of documents or things in accordance with subpoenas and the return or destruction of such documents or things,(c) the return of subpoenas to parties,(d) conduct money,(e) hearing of objections to subpoenas,(f) allowances for witnesses.