Childrens Court Rules 1997

1Short title

These rules may be cited as the Childrens Court Rules 1997 .

r 1 amd 2000 SL No. 47 s 3

2Commencement

These rules commence on 1 October 1997.

r 2 amd 2000 SL No. 47 s 4

3Definitions

In these rules—

Adoption Act application means an application to the court under the Adoption Act 2009 .

def Adoption Act application ins 2010 SL No. 5 s 4 (2)

approved form see section 30.

authorised officer ...

def authorised officer om 2000 SL No. 47 s 5 (2)

authorising law ...

def authorising law amd 2000 SL No. 47 s 5 (3)

om 2010 SL No. 5 s 4 (1)

child ...

def child om 2000 SL No. 47 s 5 (2)

department ...

def department om 2010 SL No. 5 s 4 (1)

director ...

def director om 2000 SL No. 47 s 5 (2)

jurat see rule 9(3).

def jurat ins 2010 SL No. 5 s 4 (2)

parent ...

def parent om 2000 SL No. 47 s 5 (2)

protection application means an application to the court under the Child Protection Act 1999 , chapter 2, part 3 or 4.

def protection application amd 2000 SL No. 47 s 5 (4); 2010 SL No. 5 s 4 (3)

Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 (Cwlth).

def Trans-Tasman Proceedings Act ins 2013 SL No. 96 s 3

r 3 amd 2000 SL No. 47 s 5 (1)

4Application of rules

These rules apply to—

(a)protection applications; and

(b)Adoption Act applications; and

(c)applications made under the Trans-Tasman Proceedings Act in any civil or criminal proceeding before the court.

r 4 amd 2000 SL No. 47 s 6

sub 2010 SL No. 5 s 5; 2013 SL No. 96 s 4

5Starting proceedings

A proceeding is started by filing in the court a written application in the appropriate approved form for the proceeding.

r 5 amd 2000 SL No. 47 s 7; 2010 SL No. 5 s 6

6Filing documents

(1)A party filing a document in the court must give to the registrar of the court enough copies of the document to enable the party to serve a sealed copy on—

(a)for a document relating to an application under the Trans-Tasman Proceedings Act if the document also relates to an Adoption Act application—each person required, under the Adoption Act 2009 , to be served with a copy of the Adoption Act application; or

(b)for another document relating to an Adoption Act application not mentioned in paragraph (a)—each person required, under the Adoption Act 2009 , to be served with a copy of the document; or

(c)for a document relating to a protection application—each other party to the proceeding.

(2)The document must include the address for service of the party filing it.

(3)A document is filed when the registrar fixes the court’s seal on the document.

(4)If the document is an application, the registrar must write on the application the date, time and place for hearing the application.

r 6 amd 2010 SL No. 5 s7; 2013 SL No. 96 s 5

6AGuardian to be served—Adoption Act 2009

(1)This rule applies if—

(a)a person is required to serve a copy of an application for dispensation on the relevant parent under the Adoption Act 2009 , section 36 (1); and

(b)the Guardianship and Administration Tribunal has made an order under section 30 (2) of that Act appointing a guardian for the matter of the dispensation.

(2)The person must also serve a copy of the application on the guardian.

r 6A ins 2010 SL No. 5 s 8

amd 2013 SL No. 96 s 6

6BGuardian to be served—Child Protection Act 1999

(1)This rule applies if—

(a)a person is required to serve a document under the Child Protection Act 1999 on another person; and

(b)the person—

(i)knows that the person to be served is an impaired person; or

(ii)reasonably suspects that the person to be served is an impaired person.

(2)The person must—

(a)if the person does not know whether a guardian has been appointed for the person to be served under the Guardianship and Administration Act 2000— make a reasonable attempt to find out whether a guardian has been appointed for the person to be served under that Act; and

(b)if the person is aware because of that attempt, or otherwise, that a guardian has been appointed for the person to be served under that Act—also serve the document on the guardian.

(3)In this rule—

Child Protection Act matters means matters under the Child Protection Act 1999 that are capable of applying to the impaired person.

impaired person means a person who is not capable of the following in relation to Child Protection Act matters—

(a)understanding the nature and effect of decisions about the matters;

(b)freely and voluntarily making decisions about the matters;

(c)communicating decisions about the matters in some way.

r 6B ins 2010 SL No. 5 s 8

amd 2013 SL No. 96 s 7

pt hdg sub 2000 SL No. 47 s 10

7Contents of affidavit

(1)An affidavit must state only facts of which the person making it has knowledge.

(2)However, an affidavit may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief.

r 7 prev s 7 om 2000 SL No. 47 s 8

pres s 7 ins 2000 SL No. 47 s 10

8Form of affidavit

(1)An affidavit must be in the approved form.

(2)A note must be written on an affidavit stating the name of the person making it and the name of the party on whose behalf it is filed.

(3)An affidavit must be made in the first person.

(4)An affidavit must describe the person making it and state the person’s residential or business address or place of employment.

(5)The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.

(6)Each page of an affidavit must be numbered.

r 8 prev s 8 om 2000 SL No. 47 s 8

pres s 8 ins 2000 SL No. 47 s 10

9Swearing or affirming affidavit

(1)The person making an affidavit and the person taking the affidavit must sign each page of the affidavit.

(2)Subrule (3) applies if—

(a)the affidavit is made by 1 person; or

(b)although the affidavit is made by 2 or more persons, both or all of the persons are not swearing or affirming the affidavit at the same time before the same person.

(3)A statement (the jurat) must be placed at the end of the body of the affidavit and must—

(a)state the full name of the person making the affidavit before the person taking it; and

(b)state whether the affidavit was sworn or affirmed; and

(c)state the day and the place the person made the affidavit; and

(d)be signed by the person making it in the presence of the person authorised to take the affidavit; and

Editor’s note—

Oaths Act 1867 , section 41 (1)—

41 Who may take affidavits

(1)A person’s affidavit may be taken by any of the following persons without a commission being issued for the purpose—

(a)a justice, commissioner for declarations or notary public under the law of the State, the Commonwealth or another State;

(b)a lawyer;

(c)a conveyancer, or another person authorised to administer an oath, under the law of the State, the Commonwealth or another State;

(d)if the affidavit is taken outside Australia—a person authorised to administer an oath under the law of the place in which the affidavit is taken.

(e)then be signed by the person before whom the affidavit was taken, above a statement of the capacity of the person to take the affidavit; and

Example of the capacity mentioned in paragraph (e)—

Solicitor.

(f)otherwise be as in the approved form.

(4)If the affidavit is made by 2 or more persons, 2 or more of whom are swearing or affirming the affidavit at the same time before the same person, then, in addition to any statement under subrule (3), a statement (the jurat) must be placed at the end of the body of the affidavit and must—

(a)state the full name of the persons making the affidavit before the person taking it; and

(b)state, for each of the persons making the affidavit, whether the affidavit was sworn or affirmed; and

(c)state the day and the place both or all the persons made the affidavit; and

(d)be signed by the persons making it in the presence of the person authorised to take the affidavit; and

(e)then be signed by the person before whom the affidavit was taken, above a statement of the capacity of the person to take the affidavit; and

(f)otherwise be as in the approved form.

r 9 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 9

10Certificate of reading or signature for person making affidavit

(1)If the person taking an affidavit considers that the person making it is incapable of reading the affidavit, the person taking the affidavit must certify in or below the jurat that—

(a)the affidavit was read or otherwise communicated in the person’s presence to the person making it; and

(b)the person seemed to understand the affidavit; and

(c)the person signified that the person made the affidavit.

(2)If the person taking an affidavit considers that the person making it is physically incapable of signing it, the person taking the affidavit must certify in or below the jurat that—

(a)the affidavit was read or otherwise communicated in the person’s presence to the person making it; and

(b)the person seemed to understand the affidavit; and

(c)the person signified that the person made the affidavit.

(3)If an affidavit is made by a person who is incapable of reading the affidavit or physically incapable of signing the affidavit and a certificate under subrule (1) or (2) does not appear on the affidavit, the affidavit may be used in a proceeding only if the court is satisfied that—

(a)the affidavit was read or otherwise communicated to the person making it; and

(b)the person seemed to understand it; and

(c)the person signified that the person made the affidavit.

r 10 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 10

11Alterations

(1)This rule applies if there is an alteration in any part of an affidavit.

(2)The affidavit may be filed but, unless the court orders otherwise, may only be used if the person who makes the affidavit and the person who takes the affidavit initials the alteration.

(3)In this rule—

alteration includes an interlineation, erasure or other alteration of the affidavit.

r 11 sub 2000 SL No. 47 s 10

12Exhibits

(1)An original document used with and mentioned in an affidavit is an exhibit.

(2)An original thing used with and mentioned in an affidavit may be an exhibit, if practicable.

(3)A group of different documents may form 1 exhibit.

(4)If it is impracticable to exhibit the original of a document used with and mentioned in an affidavit, a copy of the document may be an exhibit to the affidavit.

(5)An exhibit to an affidavit must—

(a)have a letter, number or other identifying mark on it; and

(b)be bound with the affidavit, if practicable.

(6)An exhibit must have a certificate in the approved form on it or attached to it.

(7)The certificate must be signed by the person who made the affidavit and the person who took the affidavit.

(8)However, if an affidavit is taken under rule 10, only the person who took the affidavit must sign the certificate.

r 12 sub 2000 SL No. 47 s 10

13Irregularity

(1)An affidavit may, unless the court orders otherwise, be filed despite an irregularity in form, including a failure to use the approved form.

(2)An affidavit may, with the leave of the court, be used despite an irregularity in form and the affidavit must have on it a memorandum by the court or the registrar of the court that it was used by leave.

(3)An affidavit used under subrule (2) is afterwards taken as a regular affidavit.

r 13 sub 2000 SL No. 47 s 10

14Filing

Unless the court gives leave, an affidavit may be used in a proceeding only if it has been filed.

r 14 sub 2000 SL No. 47 s 10

15Service

(1)As soon as practicable after an affidavit has been filed, the party on whose behalf the affidavit is filed must serve a copy of the affidavit on—

(a)for an affidavit relating to an application under the Trans-Tasman Proceedings Act if the affidavit also relates to an Adoption Act application—each person required, under the Adoption Act 2009 , to be served with a copy of the Adoption Act application; or

(b)for another affidavit relating to an Adoption Act application not mentioned in paragraph (a)—each person required, under the Adoption Act 2009 , to be served with a copy of the affidavit; or

(c)for an affidavit relating to a protection application—each other party to the proceeding.

(2)The court may, at any time, give leave to a party to use an affidavit that has not been served or that was served later than the time specified in subrule (1).

r 15 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 11; 2013 SL No. 96 s 8

16Examination of person making affidavit

(1)This rule applies only to an adult.

Notes—

1See the Adoption Act 2009 , section 238 (Child can not be compelled to give evidence).

2See the Child Protection Act 1999 , section 112 (Child can not be compelled to give evidence).

(2)If an affidavit is to be relied on at a hearing, the court may order the person making it to be examined and cross-examined before the court and may order the person to attend the court for the purpose.

(3)If an affidavit to be relied on at a hearing is served on a party more than 1 business day before the hearing and the party wishes the person who made the affidavit to attend the court for cross-examination, the party must serve a notice to that effect on the party on whose behalf the affidavit is filed at least 1 business day before the date the person is required for examination.

(4)If an affidavit to be relied on at a hearing is served on a party less than 2 business days before the hearing, the person who made the affidavit must attend the court to be available for cross-examination unless the party otherwise agrees.

(5)If the person who made the affidavit does not attend the court in compliance with the notice or subrule (3), the court may refuse to receive the affidavit into evidence.

(6)However, the court may—

(a)dispense with the attendance for cross-examination of a person making an affidavit; and

(b)direct that an affidavit be used without the person making the affidavit being cross-examined in relation to the affidavit.

(7)Unless the court orders otherwise, a party who serves a notice under subrule (2) for the person who made an affidavit to attend the court is not liable to pay the expenses of the attendance.

r 16 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 12

17Scandal and oppression

If there is scandalous or oppressive matter in an affidavit, the court may order that—

(a)the affidavit be removed from the file; or

(b)the affidavit be removed from the file and destroyed; or

(c)the scandalous or oppressive matter in the affidavit be struck out.

r 17 sub 2000 SL No. 47 s 10

18Affidavit taken before party

The court may not receive, and a party may not file, an affidavit taken by a party personally.

r 18 sub 2000 SL No. 47 s 10

pt hdg sub 2000 SL No. 47 s 10

19Qualifications or experience of chairperson

For the Child Protection Act 1999 section 69 (2), the chairperson must have the following qualifications—

(a)an ability to facilitate voluntary dispute resolution processes;

(b)a knowledge and understanding of the issues and processes for the protection of children under the Child Protection Act 1999 ;

(c)an ability to communicate effectively with a broad range of people.

r 19 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 13

pt hdg sub 2000 SL No. 47 s 10

20Order to be sent to Legal Aid Queensland

(1)This rule applies if the court makes an order under the Adoption Act 2009 , section 235 or the Child Protection Act 1999 , section 110 that a child be separately represented by a lawyer.

(2)The registrar of the court must, as soon as practicable after the order is made, send to Legal Aid Queensland a copy of—

(a)the order; and

(b)all material filed in the proceeding.

r 20 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 14; 2013 SL No. 96 s 9

21Legal Aid Queensland to advise registrar

Legal Aid Queensland must, as soon as practicable after receiving a copy of an order under rule 20, advise the registrar of the court in writing of the following—

(a)if Legal Aid Queensland allocates a lawyer to represent the child—the lawyer’s name and contact details;

(b)if Legal Aid Queensland does not allocate a lawyer to represent the child—the decision not to make an allocation and the reasons for the decision.

r 21 sub 2000 SL No. 47 s 10

pt hdg prev pt 6 hdg renum as pt 7 hdg 2000 SL No. 47 s 9

pres pt 6 hdg ins 2000 SL No. 47 s 10

22Affidavit of service

(1)Service of a document may be proved by an affidavit of service of the document filed in the court.

(2)The affidavit—

(a)for an affidavit of personal service—must be made by the person who served the document and include the following—

(i)the person’s full name;

(ii)the time, day and date the document was served;

(iii)the place of service;

(iv)the name of the person served and how the person was identified; or

(b)otherwise—

(i)must state the relevant dates and the facts showing service; and

(ii)may be made on information given to, or the belief of, the person causing the service; and

(iii)if made on information given to the person—must state the source of the information.

(3)The affidavit of service must—

(a)have the document filed with it as an exhibit or be written on the document; or

(b)if the document has been filed—mention the document in a way sufficient to enable the document to be identified.

(4)Nothing in this rule prevents the proving of service in another way.

r 22 sub 2000 SL No. 47 s 10

amd 2010 SL No. 5 s 15; 2013 SL No. 96 s 10

pt hdg pt 7 hdg (prev pt 6 hdg) renum 2000 SL No. 47 s 9

amd 2013 SL No. 96 s 11

27Subpoenas

(1)This rule applies only to an adult.

Notes—

1See the Adoption Act 2009 , section 238 (Child can not be compelled to give evidence).

2See the Child Protection Act 1999 , section 112 (Child can not be compelled to give evidence).

(2)On application by a party to a proceeding, the registrar may issue a subpoena requiring the attendance of a person before the court to give evidence in the proceeding or produce stated documents or things.

r 27 sub 2010 SL No. 5 s 16

pt hdg ins 2013 SL No. 96 s 12

div hdg ins 2013 SL No. 96 s 12

27AInterpretation

Words and expressions used in this part and the Trans-Tasman Proceedings Act have the same meaning in this part as they have in that Act except so far as the context or subject matter otherwise indicates or requires.

Note—

The following words and expressions are defined in the Trans-Tasman Proceedings Act, section 4—

•audio link

•audiovisual link

•document

•given

•party

•proceeding.

r 27A ins 2013 SL No. 96 s 12

27BApplication of pt 7A

This part applies to civil and criminal proceedings that may be heard by the court and to which the Trans-Tasman Proceedings Act applies.

r 27B ins 2013 SL No. 96 s 12

div hdg ins 2013 SL No. 96 s 12

27CApplications in proceeding under Trans-Tasman Proceedings Act

(1)This rule applies to a proceeding that has already started.

(2)A party to the proceeding who wants to apply for an order under the Trans-Tasman Proceedings Act must make an application in the proceeding.

(3)The application must be supported by an affidavit that states the material facts on which the applicant relies that are necessary to give the other party fair notice of the case to be made against the other party at the hearing of the application.

r 27C ins 2013 SL No. 96 s 12

div hdg ins 2013 SL No. 96 s 12

27DApplication for leave to serve subpoena in New Zealand

(1)A party to a proceeding who requires the leave of the court to serve a subpoena in New Zealand under the Trans-Tasman Proceedings Act, section 31 must make an application for leave in the proceeding in which the subpoena was issued.

(2)The application must be accompanied by—

(a)a copy of the subpoena in relation to which leave is sought; and

(b)an affidavit stating, briefly but specifically, the following—

(i)the name, occupation and address of the person named in the subpoena;

(ii)whether the person is over 18 years;

(iii)the nature and significance of the evidence to be given, or the document or thing to be produced, by the person;

(iv)details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the person;

(v)the date by which it is intended to serve the subpoena in New Zealand;

(vi)details of the amounts to be tendered to the person to meet the person’s reasonable expenses of complying with the subpoena;

(vii)details of the way in which the amounts mentioned in subparagraph (vi) are to be given to the person;

(viii)if the subpoena requires the person to give evidence—an estimate of the time that the person will be required to attend to give evidence;

(ix)any facts or matters known to the party making the application that may be grounds for an application by the person to have the subpoena set aside under the Trans-Tasman Proceedings Act, section 36 (2) or (3).

Notes—

1See the Trans-Tasman Proceedings Act, section 31 which allows the court to impose conditions when giving leave to serve a subpoena in New Zealand.

2See also the Trans-Tasman Proceedings Act, sections 33 and 37 which make provision in relation to the payment of expenses in complying with a subpoena.

(3)A person must not, without the leave of the court, search for, inspect or copy a document in an application under this rule filed in the court.

r 27D ins 2013 SL No. 96 s 12

27EApplication to set aside subpoena

(1)A person applying under the Trans-Tasman Proceedings Act, section 35 to set aside a subpoena served in New Zealand must make the application in the proceeding in which the subpoena was issued.

(2)The application must be accompanied by—

(a)a copy of the subpoena; and

(b)an affidavit stating the following—

(i)the material facts on which the application is based;

(ii)whether the person making the application requests that any hearing be held by audio link or audiovisual link.

r 27E ins 2013 SL No. 96 s 12

27FApplication for issue of certificate of noncompliance with subpoena

(1)A party to a proceeding may apply to the court that issued a subpoena for a certificate mentioned in the Trans-Tasman Proceedings Act, section 38 (a certificate of noncompliance).

(2)The application may be made—

(a)if the proceeding in which the subpoena is issued is before the court—orally to the court; or

(b)by filing the application.

(3)The application must be accompanied by—

(a)a copy of the subpoena; and

(b)a copy of the order giving leave to serve the subpoena; and

(c)an affidavit of service of the subpoena; and

(d)a further affidavit stating the following—

(i)whether any application was made to set aside the subpoena;

(ii)the material in support of an application mentioned in subparagraph (i);

(iii)any order that disposed of an application mentioned in subparagraph (i);

(iv)the material facts relied on for the issue of the certificate of noncompliance.

Note—

A certificate of noncompliance is to be stamped by the registrar with the seal of the court.

r 27F ins 2013 SL No. 96 s 12

div hdg ins 2013 SL No. 96 s 12

27GApplication for order for use of audio link or audiovisual link

(1)A party to a proceeding applying for leave for an order that an appearance be made, evidence be taken, or submissions be made, by audio link or audiovisual link from New Zealand under the Trans-Tasman Proceedings Act, section 50, must make the application in the proceeding to which the appearance, evidence or submissions relate.

(2)Subrule (1) does not apply to a request mentioned in rule 27E(2)(b)(ii).

r 27G ins 2013 SL No. 96 s 12

pt hdg ins 2013 SL No. 96 s 12

28Power to amend

At any stage of a proceeding, the court may allow or direct a party to amend an application, anything written on an application or a document in a proceeding in a way and on the conditions the court considers appropriate.

r 28 sub 2000 SL No. 47 s 11

29Effect of noncompliance with rules

A proceeding before the court is not a nullity merely because of the failure of a party to the proceeding to comply with these rules.

r 29 amd 2000 SL No. 47 s 12

30Approval of forms

The president may approve forms for use under these rules.

r 30 amd 2000 SL No. 47 s 13

pt hdg ins 2000 SL No. 47 s 14

31Transitional—Applications pending at 1 October 1997

Unless the court otherwise directs, these rules apply to a protection application started in the court, but not completed, before 1 October 1997.

r 31 sub 2000 SL No. 47 s 14

32Transitional—Childrens Court Amendment Rule (No. 1) 2000

(1)Unless the court otherwise directs, these rules as amended by the Childrens Court Amendment Rule (No. 1) 2000 apply to the next step in a protection application started in the court, but not completed, before the commencement of the Childrens Court Amendment Rule (No. 1) 2000 .

(2)If a difficulty arises in the application of subrule (1) to a particular proceeding, the court may, on application by a party or its own initiative, make an order it considers appropriate to resolve the difficulty.

r 32 ins 2000 SL No. 47 s 14