Advice Leaflet 8: A guide to the Court System and Children's Law

The state system

 

In NSW the court system consists of:

  • The Supreme Court

  • The District Court

  • Local Magistrates Court

 

The Children's Court and the Children's Criminal Court are specialised Local Magistrates Courts.

 

The legislation that covers the Children's Care Court is the Children and Young Persons (Care and Protection) Act 1998. This Act sets out the power of the Court and the way in which the court proceedings will be conducted. See www.austlii.edu.au

 

In NSW the Children's Court is a closed court. This means that the public are not admitted as observers to Children's Court proceedings.

 

In country areas the Local Magistrates Court deals with routine Children's Court matters. There is a Children's Court specialist magistrates circuit that hears substantive cases, establishment applications and final hearings.

 

Adoptions Act 2000 is the legislation that sets out the legal process for adoptions. All adoptions have to be approved by the Supreme Court. The Supreme Court has the power to dispense with parental consent to adoption.

  

Appeals

Once a matter has been finalised in the Children's Court the decision can be appealed to the District Court if any party is dissatisfied with the decision. There is a filing fee that has to be paid by the party initiating the appeal.

 

Cases do not go directly on appeal from the Children's Court to the Supreme Court. Only cases involving a matter of law go to the Supreme Court in specific circumstances.

 

The exception to this is where the President of the Children's Court who is a District Court judge has adjudicated a matter in the Children's Court. This appeal  is then heard in the Supreme Court.

 

An appeal against a decision of the NSW Supreme Court  is heard by the Supreme Court Court of Appeal in civil matters.

 

Any further appeal is to the High Court and special leave is needed to take a matter to the High Court of Australia.

 

There is a filing fee for all Supreme Court matters.

  

Review of administrative decisions

The NSW Administrative Decisions Tribunal under the Administrative Tribunal Act 1997 can review cases and make a stay order involving children in the care of the Minister for Family and Community Services, as well as those made by non-government agencies that are accredited as out-of-home care providers by the NSW Commission for Children and Young People. See www.adt.lawlink.nsw.gov.au and www.kids.nsw.gov.au

The Administrative Decision Tribunal does not have a filing fee.

  

The federal system

  

At the federal level the family law court system consists of:

  • Family Law Court

  • Family Circuit Court

 

Both the Family Court and the Family Circuit Court deal with family law matter under the Family Law Act 1975. Matters in the Family Court or in cases heard in the Family Circuit Court in which there is information about a suspected case of child abuse or neglect will be referred by the court to the NSW Department of Family and Community Services for investigation.

 

In some instances Family and Community Services become a party to the Family Court of Family Circuit Court case. For example, in Magellan list cases dealing with allegations of sexual abuse.  See www.familycourt.gov.au In other matters Family and Community Services may undertake action in the NSW Children's Court. Children's Court decisions over-ride Family Court of Family Circuit Court decisions in relation to parenting orders.

  

Filing fees apply in all Family Court and Family Circuit Court matters.

  

Appeals

  

Appeals against a Family Circuit Court decision are heard by one judge of the Family Court. Appeals against a decision of the Family Court are heard by three judges of the Family Court.

  

Rules of evidence

  

These rules are set out in the NSW Evidence Act 1995There are two distinct standards of evidential proof:

  • Beyond reasonable doubt

  • On the balance of probability

  

The 'beyond reasonable doubt' standard of proof is required in the criminal jurisdiction. In the NSW Children's Court care jurisdiction the rules of evidence do not apply (see NSW Children and Young Persons (Care and Protection) Act 1998 section 98 (3), (4) and (5) and the standard of proof is the lesser on a 'balance of probability'.

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