Chapters

Evidence

A child and its guardians are entitled to full particulars of the evidence, on the basis of which it will be alleged a child is ‘at risk’, for instance, failure to supply necessary food, supervision and medical treatment. As a matter of practice, the Department does supply to the child, their guardian or their legal representative, statements of witnesses outlining the evidence each witness will give. This is especially important in the case of an expert witness, for example a doctor or psychiatrist.

Failure to supply the statement (or ‘proof of evidence’ as it is usually called) of such an expert is a ground for seeking an adjournment of the hearing after such evidence is given, so as to allow an opportunity to prepare cross-examination of that witness and consult other experts on the evidence given. If a proof of evidence of an expert witness is supplied before the hearing date, then consideration should be given to consulting another expert on its contents. A request should also be made to the Department (if the child is in its care) for any expert proposed to be called on behalf of the guardian or child, to examine the child where this is appropriate (for example to test the opinion presented by the Department's psychiatric expert). The Department will usually co-operate with such a request.

When the court proceeds on the appointed day to hear the case in full, witnesses for the Department are called and the child or its guardians have the right to cross-examine this evidence. The Department has the right to re-examine those witnesses to clear up any matters raised in cross-examination.

After the Department's witnesses have given their evidence, the child or its guardians have the right to give evidence and call witnesses to support their opposition to the application. It is wise to have legal representation to assist in deciding what evidence to call and who should give it. As the guardian is a party to the proceeding, they can, at the close of the Department's case, submit to the court that there is no case to answer.

Rules of Evidence

While the rules of evidence do apply in proceedings under this Act, they are not applied inflexibly, i.e. the court has some discretion and will not be applied where to do so would prejudice the very purpose that they are meant to serve, namely the best interests of the child (s63CYPFA). Accordingly, it is possible to have hearsay evidence admitted into evidence (for example a witness relates what a parent said or admitted to) that ordinarily would be inadmissible as hearsay.

Parties

Parties to applications under this Act include the Secretary of DHHS, the child and each guardian of the child (s64). The court may hear and determine an application for an order in the absence of a party to the application (s66). It may also join a person who is not a party to the proceedings where it intends to make an order binding upon that person (s67). If the court dismisses an application under this Act by the Secretary, the court may make such order for costs against the Crown in favour of any other party to the proceedings as the court considers appropriate (s68).

Importantly, the Act expressly provides that the court must not proceed to hear an application unless the child is represented by a lawyer (s59(1)(a)) or the court is satisfied that the child has made an informed and independent decision not to be so represented (s59(1)(b)). Occasionally the hearing will proceed without a lawyer however in using its discretion the court must be of the opinion that it is in the best interests of the child (s59(2)). It may sometimes also be the case that whether or not the child is represented the court may order that the child be separately represented.  

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