Local Court Bench Book — Children’s Court

Section 28 states that the Children’s Court has jurisdiction to hear and determine proceedings if the offence is alleged to have been committed by a person:

A “child” is defined in s 3(1) as a person who is under the age of 18 years.

Generally, the Local Court and the Drug Court may not hear and determine criminal proceedings over which the Children’s Court has jurisdiction: s 7(1), (2).

Children under 10 years are conclusively presumed to be incapable of committing a criminal offence: s 5.

Where a child is over 10 years old but under 14, there is a common law presumption of doli incapax. In such cases, the prosecution must prove beyond reasonable doubt that the child did the act charged and, when doing the act, knew it was wrong, as distinct from merely naughty or mischievous: RP v The Queen (2016) 259 CLR 641 at [9]. The child must know the act is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358; M v The Queen (1994) 181 CLR 487. Evidence to prove the child’s guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be: C v DPP [1996] AC 1 at 38.

Doli incapax is an element of the prosecution case that must be rebutted beyond reasonable doubt: RP v Ellis [2011] NSWSC 442.

What suffices to rebut the presumption will vary according to the nature of the allegation and the child. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew it was morally wrong to engage in the conduct. Attention should be directed to the particular child’s intellectual and moral development. The strength of evidence required is not necessarily correlated to the child’s age. Children do not mature at a uniform rate. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not: RP v The Queen, above, at [8], [12].

The Children’s Court has jurisdiction for driving matters where:

Even though a person under 16 years cannot be convicted, a court may disqualify them from holding a licence for a specified period. Any finding of guilt in the Children’s Court for a traffic matter, even where a conviction is not recorded, is taken to be a conviction under the road transport legislation, except where the court makes an order under s 33(1)(a): s 33(6).

Criminal Procedure Act 1986 (CPA) s 210 enables a Local Court to impose penalties provided for by the CCPA when dealing with a child found guilty of a traffic offence. For example, imposing a s 33(1)(b) good behaviour bond pursuant to the CCPA would allow Youth Justice supervision, which cannot be achieved by a CRO or CCO.

A Local Court cannot impose a sentence of imprisonment on a child found guilty of a traffic offence: s 210(3) CPA.

A child or young person charged with or convicted of a Commonwealth offence may be tried, punished or otherwise dealt with as if the offence were against a law of the State or Territory: Crimes Act 1914 (Cth) s 20C.

The court must ensure it takes such measures as are reasonably practicable to ensure the young person understands the proceedings: s 12(1). If requested by the child or a person on their behalf, the court must explain any aspect of the procedure, or any decision or ruling made: s 12(3). See further the Equality before the Law Bench Book 2006 “Explain court proceedings and processes adequately” at [6.3.4.1].

The court must also ensure the young person is given the fullest opportunity practicable to be heard, and to participate, in proceedings: s 12(4).

Section 10 provides that the court is closed and that persons other than the following should be excluded:

The court may also direct that any person (other than the child, any other person directly interested in the proceedings or a family victim) be excluded from the proceedings during the examination of any witness if of the opinion such a direction is in the interests of the child: s 10(2).

A Local Court hearing a traffic offence committed by a child defendant is not a closed court: see s 10(3). As to the publication or broadcasting of names: see Div 3A, ss 15A–15G. In particular, s 15A prohibits the publication or broadcasting of the names of children involved as offenders, witnesses, or brothers and sisters of victims in criminal proceedings, subject to exceptions set out in ss 15B–15F. See also Criminal Trial Courts Bench Book at [1-358].

Special provisions apply restricting the admissibility of statements and admissions to a police officer by a child to a police officer: s 13. The provision applies to admissions or statement which pre-date the enactment of s 13, or any legislative equivalent: R v Mercury [2019] NSWSC 81 at [70]. Admissions are not to be admitted unless a parent, chosen support person or lawyer was present, unless the court is satisfied there was a proper and sufficient reason for the absence of such an adult, and considers that, in the particular circumstances of the case, the statement or admissions should be admitted: s 13(1)(b).

See R v Phung [2001] NSWSC 115; R v T [2001] NSWCCA 210; R v G [2005] NSWCCA 291 (regarding photographs); R v Mercury, above.

The detention for questioning provisions of Pt 9 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) apply to persons under the age of 18 years but have been modified by the Law Enforcement (Powers and Responsibilities) Regulation 2016, in particular Pt 3 Div 3 which contains provisions concerning the rights of children to support persons and access to legal advice. Police have a responsibility to assist a child to contact the Legal Aid Youth Hotline or the Aboriginal Legal Service Custody Notification Line: R v Cortez (unrep, 3/10/02, NSWSC) per Dowd J.

In R v FE [2013] NSWSC 1692, evidence of police interviews was excluded because the custody manager failed to comply with their obligation to assist the juvenile in exercising their rights under Pt 9 of LEPRA, by disregarding clearly communicated advice, from the Legal Aid Youth Hotline solicitor on behalf of the child, that the child wished to exercise her right to silence.

Regarding access to a lawyer: see R v Cortez, above.

The law permitting orders to be made to undertake forensic procedures on suspects applies to a child (defined as a person at least 10 years old but under 18 years): Crimes (Forensic Procedures) Act 2000 (CFPA) s 3(1). A child cannot consent to a procedure and a court order must be obtained: ss 7, 23 CFPA. A child may have representation at a hearing and an independent person must be present before a final forensic procedure order can be made: s 30 CFPA. However, a hearing or representation is not required for an interim order: s 33 CFPA; Kindermann v JQ [2020] NSWSC 1268 at [37]–[40].

Where a child over 14 years old is in lawful custody for any offence, a police officer may take or cause identity particulars to be taken, including the child’s photograph, fingerprints or palmprints: s 133(1)–(2) LEPRA.

However, where the child in lawful custody is under 14 years, a police officer must apply to the Children’s Court for an order authorising the taking of a photograph, fingerprints or palmprints: s 136 LEPRA.

The power under s 63 of the CFPA for police officers, correctional officers or any other person specified by court order to take identifying particulars as soon as practicable after an offender is sentenced to imprisonment, applies equally when a juvenile is sentenced to a control order: s 33C(1)(a).

Further, the court may order a juvenile offender to present himself or herself for the taking of identification particulars upon finding certain offences proven: s 134 LEPRA. See also Court orders for identification at [16-440].

If the Children’s Court finds a child not guilty, or finds the offence proven but dismisses the charge under s 33(1)(a)(i), it must make an order requiring destruction of any photographs, finger-prints and palmprints relating to the offence: s 38(1). Where a child is dealt with by any other order under s 33, the court may order destruction if of the opinion that the circumstances of the case justify doing so: s 38(2).

See also s 137 LEPRA, which deals with circumstances in which another court finds an offence alleged against a child not proved.

As in the case of adult offenders other offences may be taken into account: ss 31–35A CSPA.

Where a magistrate finds a young person has committed an offence whilst on parole, the parole clerk at Parramatta Children’s Court should be notified by the Registrar so that action can be taken to revoke that parole.

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 introduced defences and exceptions to certain Crimes Act offences for persons under 18 years of age.

It is a defence to prosecutions for offences against ss 66C(3), 66DB, 66DD, 73 or 73A Crimes Act 1900 if the alleged victim is of or above 14 years old and the age difference between the alleged victim and accused is no more than two years: s 80AG(1) Crimes Act. Where raised, the prosecution bears the onus of disproving the defence beyond reasonable doubt: s 80AG(2) Crimes Act.

An exception to the offence of possessing child abuse material under s 91H Crimes Act applies where the accused possessed the material when they were under 18 years and a reasonable person would consider the possession acceptable having regard to certain matters: s 91HB Crimes Act.

Further, it is a defence to a possession charge under s 91H Crimes Act if the person depicted in the material is the accused: s 91HA(9) Crimes Act. In offences of production or dissemination of child abuse material under s 91H Crimes Act, it is a defence if the only person depicted in the material is the accused and the production or dissemination occurred when they were under 18: s 91HA(10) Crimes Act.

The court has no jurisdiction to deal with a “serious children’s indictable offence” to finality: ss 3, 17, 28(1) CCPA. Other indictable offences may be dealt with according to law or under the CCPA: s 18.

Part 3, Div 3A to the CCPA creates separate committal procedures for children charged with certain indictable offences.

This process closely mirrors the process in the adult jurisdiction, except for the mandatory discount scheme for sentencing which does not apply to a person who is both under 18 at the time of the offence and under 21 at the time of charge: s 25A(1)(b) CSPA. Refer to Children’s Court Practice Note 12 for the procedures to be followed.

For “serious children’s indictable offences” (defined in s 3), Ch 3, Pt 2 of the Criminal Procedure Act 1986 applies: s 27(2B) CCPA.

See also, Committal proceedings at [28-000]ff.

Generally, if a child is charged with an offence (other than a serious children’s indictable offence) the proceedings are dealt with summarily: s 31(1).

Pursuant to s 31A, the procedures for committal proceedings under Div 3A apply where:

Note:

where the child is charged before the Children’s Court with a child sexual assault offence, Div 3AA applies. Section 31AA(3) defines a “child sexual assault offence”.

In conducting the committal proceeding, the court:

Before giving the accused an opportunity to answer the charge, a warning must be given both orally and in writing: s 31B(2), cl 7 Children (Criminal Proceedings) Regulation 2021. The form of the oral and written explanations are set out in Sch 1, cll 1 and 2 respectively.

If of the opinion:

Sections 31C–31E deal with the admissibility of statements in Div 3A proceedings. The provisions under Ch 6 Pt 3A CPA apply: s 31D(2).

Under s 31(6), when a child charged with an indictable offence or a serious children’s indictable offence (the “principal indictable offence”) is committed to another court for trial or sentence:

Where a back up or related offence is transferred under s 31(6), those proceedings must be dealt with in accordance with ss 167–169 of the CPA: s 31(7).

The Children’s Court may hear and determine committal proceedings relating to an indictable offence made jointly against an adult and juvenile together if:

Note:

There is no provision which otherwise enables adult and juvenile offences or offenders to be dealt with together either as a committal or a summary hearing.

The relevant principles regarding the sentencing of children are outlined in detail in Campbell v R [2018] NSWCCA 87 at [20]–[32].

A conviction cannot be recorded if the young person is under 16 years at the time of the offence: s 14(1). A court can choose not to record a conviction for young people above 16 years. Whether or not a conviction is recorded, all sentencing options under s 33 apply.

The Youth Koori Court operates at Parramatta and Surry Hills Children’s Courts. Referral to the court can only occur for matters where there is an indication of a guilty plea, or a finding of guilt. There is a geographic restriction in that only matters within the catchment area of Parramatta and Surry Hills Children’s Courts are eligible. There is, however, the capacity to refer matters to the Koori Court for sentence for a child who has been accepted into the program by virtue of other eligibility, and where the child requests to do so. Refer to Children’s Court Practice Note 11 for further information regarding the Youth Koori Court.

See Subjective matters at common law [10-405] “Prior record” and Children (Criminal Proceedings) Act 1987 [15-020] “Hearings” in the Sentencing Bench Book where the way in which a child’s prior record may be taken into account. Some criminal records of conviction and sentence of young people are “expunged” after prescribed periods (subject to certain employment exceptions): ss 8 and 12 Criminal Records Act 1991.

Part 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 provides for the statutory scheme regulating the preparation and receipt of victim impact statements on sentence proceedings. The scheme applies to the Children’s Court, under s 27(4A) of that Act, to the following offences:

See Sentencing Bench Book, The statutory scheme for victim impact statements at [12-820] for further information.

The following table sets out a practical hierarchy of court-ordered penalties available in the Children’s Court. The table does not include the separate powers of police or investigating officers to give a caution for certain offences. [See after this table for further discussion on individual penalty options.]

This is the equivalent of a s 10(1)(a) dismissal under the CSPA.

The court may dismiss a charge but place an offender on a good behaviour bond under s 33(1)(a)(ii). Alternatively, s 33(1)(b) allows the court to make an order directing the person to enter into a bond.

In either case, the period of the good behaviour bond must not exceed 2 years.

Bonds imposed under s 33 must contain the following two conditions, namely that the person will:

A bond may also contain other conditions, except for those requiring the person to perform community service work, or make any payment (whether in the nature of a fine, compensation or otherwise). The kinds of conditions that may be imposed are listed in cl 8 Children (Criminal Proceedings) Regulation 2021.

The fine imposed must not exceed whichever is the lesser of either 10 penalty units or the maximum fine provided for the offence: s 33(1)(c). A fine may be imposed even though the offence does not provide a maximum fine.

Before making an order imposing a fine on a child, the court must consider the child’s age and, where information is available, their ability to pay the fine and the potential impact of the fine on the rehabilitation of the child: s 33(1AA).

The court may make an order releasing the person on condition that the person complies with an outcome plan determined at a youth justice conference. See further Young Offenders Act 1997 at [38-320]. Referral to a youth justice conference is an order that would normally be made under the Young Offenders Act.

Note:

Bail is usually dispensed with if the young person is directed to attend a youth justice conference.

The court may make an order adjourning proceedings against the person to a specified date (being an adjournment for a maximum period of 12 months from the date of the finding of guilt), and granting bail to the person in accordance with the Bail Act 2013:

The court may make an order releasing the offender on probation. The period of probation must not exceed two years. Clause 8 Children (Criminal Proceedings) Regulation 2021 lists conditions that can be included in a probation order:

Where the court orders probation under s 33(1)(e) and community service work under s 33(1)(f), the order may include a condition requiring the child to comply with the community service work order: cl 8(2) Children (Criminal Proceedings) Regulation 2021.

Supervision by Youth Justice can be imposed with a good behaviour bond or a probation order: cll 8(1)(h) and (i) Children (Criminal Proceedings) Regulation 2021. If the length of an order surpasses the child turning 18, then supervision is normally passed on to Community Corrections, although in some circumstances, where the order continues for less than 6 months after the child turns 18, Youth Justice may retain supervision.

A community service order may only be imposed where:

The court may also impose conditions “not inconsistent with the Act or regulations”: s 11 CCSOA.

An order may recommend that the community service work to be performed by the person should include participation in a personal development, educational or other program: s 5(1B) CCSOA.

The court may recommend, in relation to an order for offence other than a graffiti offence, that the community service work include the removal of graffiti and consequential restoration of the building, vessel, etc: s 5(1A) CCSOA.

In relation to an order for a graffiti offence, the court must impose a graffiti clean up condition, unless it considers that it would not be reasonably practicable in the circumstances, in which case it must make a record of its reasons: ss 11(3)–(5).

Community service orders may be concurrent (s 10 CCSOA) or the court may make an order that they be cumulative: s 13(3) CCSOA subject to keeping within the maximum hours permitted to be imposed.

The maximum duration for a community service order is 12 months: s 3(1) CCSOA. Applications may be made to the Secretary to extend the relevant maximum period by either the person in respect of whom the order was made or the assigned officer, on the grounds that an extension would (having regard to circumstances that have arisen since the order was made) be in the interests of justice: s 20A CCSOA.

When making an order the court must:

Suspended sentences are no longer a sentencing option for adult offenders, but remain a sentencing option for children under the CCPA. A court dealing with a person under s 33(1)(g) may make an order suspending the execution of its order a specified period (not exceeding the term of that order), and releasing the person on condition that the person enters into a good behaviour bond under s 33(1)(b) for such a specified period: s 33(1B).

A control order may be made only for an offence that provides for a sentence of imprisonment: s 34(1).

A control order should not be made unless the court is satisfied it would be wholly inappropriate to deal with the child under any other type of sentence: s 33(2). Reasons must be recorded why it would have been wholly inappropriate to so deal with the matter and the reasons why the child has been so dealt with: s 35.

A control order is a sentence subject to the provisions of Pts 3 and 4 Crimes (Sentencing Procedure) Act 1999. A control order must not exceed the maximum period of imprisonment provided for the offence, or 2 years, whichever is the shorter.

The court has power to make a control order cumulative to a maximum of 3 years provided such order would not have the effect of the detainee being detained for more than two periods specified in different control orders, being periods that are not to any extent concurrent: s 33A.

A court, when imposing a control order that exceeds six months in duration, may set a non-parole period. The court may decline to set a non-parole period s 45(1) CSPA and state reasons for so doing: s 45(2) CSPA. Where a non-parole period has been set for a detention order for a period of 3 years or less, being an order for which a non-parole period has been set, is taken to be subject to a parole order (a “statutory parole order”) directing the release of the offender on parole at the end of the non-parole period. See further “Juvenile offender parole legislative framework” at [42-000]ff.

Pursuant to s 33(5), nothing in s 33 limits or affects any powers that the Children’s Court may have apart from this section to:

Section 33(6) provides that for the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence, a finding of guilt by the Children’s Court for an offence is taken to be a conviction for the offence, unless the court makes an order under s 33(1)(a).

The court may order compensation for loss against a child under ss 94 or 97 Victims Rights and Support Act 2013, but the maximum amount that may be ordered is 10 penalty units if under 16 years or 20 penalty units if older: s 36(3) CCPA.

The court must have regard to the child’s means and income, if any, in deciding whether or not to make such an order: s 36(2). Compensation may not be ordered as a condition of a bond: see s 33(1A)(c)(ii) CCPA.

Where an offender is 18 years or older when sentenced, a victims support levy (currently $86 for financial year 2021/22 cf cl 2 Victims Rights and Support (Victims Support Levy) Notice 2020) is payable, as is the case for an offender dealt with in a Local Court.

Where a child is so dealt with, such levy is not payable if the court directs at the time or later that the child is exempt from such payment: s 106(3) Victims Rights and Support Act 2013.

The court costs levy under s 211A of the CPA does not apply to Children’s Court proceedings or to proceedings in which a person who was under 18 years at the time an offence is dealt with under Pt 3 Div 4 CCPA: s 211A(3), (7)(b).

However, the Children’s Court may, at the end of summary proceedings in which a person is found guilty of an offence, order that the person pay court costs: s 42A(1) CCPA. Court costs ordered to be paid under s 42A are in addition to, and do not form part of, any pecuniary penalty imposed in respect of the offence: s 42A(2).

The amount of court costs ordered to be paid under s 42A cannot exceed the amount that would be payable under s 211A CPA if that section applied to the offence: s 42A(4) (for the 2018/19 financial year, $85).

Section 41 CCPA deals with breaches of good behaviour bonds, probation, and release on condition of compliance with a youth justice conference outcome plan.

An offender may be issued with a court attendance notice by an authorised officer or member of the police force who believes with reasonable cause that the offender has failed to comply: s 41(1).

Alternatively, a court may call on a person to appear before it if it suspects that the child has failed to comply: s 41(1A).

Offenders under the age of 21 years will be brought before the Children’s Court and, if it is proved that they have failed to comply, they may be dealt with in any manner in which they could have been dealt with by the Children’s Court in relation to the offence: ss 41(3)(a), 41(4).

Offenders of or above the age of 21 years will be brought before the Local Court and, if it is proved that they have failed to comply, they may be dealt with in any manner in which they could have been dealt with by the Local Court, had the person been of or above the age of 21 years when the person was originally dealt with in relation to that offence: ss 41(3)(b), 41(5).

Where the Children’s Court has, under s 33(1B), suspended the execution of an order under s 33(1)(g) and the person concerned has entered into a good behaviour bond, action with respect to a failure to comply with any such bond may be taken under s 41.

The bond is to be terminated unless the court is satisfied that:

Once the bond is terminated, suspension of the execution of the order under s 33(1)(g) ceases to have effect, and Pt 4 CSPA applies as if the order were a sentence of imprisonment: s 41A(3).

Where a court chooses to caution an offender under s 31 in relation to an offence, an order must be made dismissing the proceedings: s 31(1A).

The court may allow any victim of the offence to prepare a written statement describing the harm occasioned to them by the offence and, if it considers it appropriate, may permit all or part of the statement to be read to the child when giving the caution: s 31(1B).

A court that gives a caution must notify in writing the Area Commander of the local police area in which the offence occurred of the decision and reasons (s 31(4)) and must make a record of any caution in accordance with cl 15 Young Offenders Regulation 2016: s 33.

A child may not be cautioned if they have been dealt with by caution on 3 or more occasions (regardless of whether the caution was a police caution or a court caution): s 31(5).

Where the child is cautioned, no further proceedings may be taken for the offence in respect of which the caution is given or for any other offence in respect of which proceedings could not be commenced if the child had been convicted of the offence for which the caution was given: s 32.

Section 40(1A) deals with referrals for conferences by courts. A matter may be referred at any stage in proceedings, including after a finding that a child is guilty of an offence: s 40(3). In determining whether or not to refer a matter for conferencing the court must take into account the following (s 40(5)):

The child must consent to the holding of the conference: s 36(c). After a referral is made, the Commissioner of Police must be notified in writing of any particulars of the referral: s 40(4).

A court may, at any time after referral and before a conference is held, determine that the matter should not be dealt with by way of a conference: s 44(3).

A child may also decide not to proceed with a conference before it is held: s 44(1).

The aim of the conference is to reach agreement on an outcome plan that the young person can complete, which may include an apology and/or reparation to the victim(s), participation in a counselling, alcohol/drug or educational program, or actions which are directed towards the child’s reintegration into the community: s 52(5)–(5A).

An outcome plan must be referred to the court for approval: s 54(1).

Note:

The court can only approve or not approve the plan, it cannot alter the plan.

If an outcome plan is not approved by the court or if the child fails to satisfactorily complete an outcome plan the proceedings may be continued.

If a court is notified that the child satisfactorily completed the outcome plan, no further criminal proceedings may be taken: s 58. If the matter was referred for a conference before a finding of guilt was made, the offence must be dismissed: s 57(2).

A criminal history referring to warnings, cautions and conferencing is admissible in proceedings before a Children’s Court (s 68(2)) but will only be located on the Computerised Operational Policing (COPS) computer system.

If a child doesn’t proceed with a caution or conference, fails to attend a conference, fails to reach an agreement at conference to an outcome plan, or fails to satisfactorily complete an outcome plan, the proceedings may be continued or re-commenced against the child (even if an applicable limitation period has expired): s 64(1).

The proceedings must be commenced not later than the expiry date of the applicable limitation period, or 3 months after the matter is referred back to the person or body under s 64, whichever is the later: s 64(2).

If the Children’s Court has released a child on condition of compliance with an outcome plan under s 33(1)(c1) CCPA, and the child fails to comply with the outcome plan, an authorised justice may issue a summons or warrant for the arrest of the child, and proceedings may be continued or commenced under s 64: s 57.

The Children’s Court is authorised to deal with such cases where the defendant is less than 18 years of age at the time the complaint is made: s 91(1) Crimes (Domestic and Personal Violence) Act 2007.

Application proceedings involving defendants under the age of 18 are to be heard in closed court, although the court may permit the presence of some persons if it is considered appropriate: s 86(1)–(2) Crimes (Domestic and Personal Violence) Act.

Children’s Court Practice Note 8 sets out Children’s Court procedures in cases where apprehended domestic or personal violence order proceedings have been commenced against a young person.

The Practice Note requires consideration to be given to the availability of suitable counselling or other intervention services for the young person, and where appropriate, the young person’s family. In matters involving the police, if the police prosecutor and young person consent, the court may make an interim domestic or personal violence order and adjourn the proceedings:

The Practice Note does not apply to applications against a young person involving allegations of sexual assault or indecent assault, applications which are related to criminal charges of a serious nature and cases where such applications have been repeatedly sought in the past. However, in such a case the procedures set out in the Practice Note may be applied with the consent of the prosecutor and the young person.

The Children’s Court may vary or revoke an order made by the Children’s Court irrespective of the age of the defendant at the time the application for variation or revocation is made: s 91(3) Crimes (Domestic and Personal Violence) Act.

Children in out-of-home care are not considered to be in a domestic relationship with their carers. The “Joint Protocol to reduce the contact of young people in residential out-of-home care (OOHC) with the criminal justice system” (the Protocol) applies to any child under the age of 18 and living in residential OOHC.

Police and DCJ are signatories to the Protocol and guiding principles are outlined in the Protocol (at 1.1). They include that young people living in OOHC may have a range of complex needs arising from experiences of trauma, abuse and neglect; that police should only be called as a last resort in response to incidents arising from challenging behaviours, and this action should reflect and be similar to a response in a family situation where a young person is living at home with their birth parents; and that the practice of being culturally responsive and facilitating connection to family, community and culture improves the child’s wellbeing. The parties to the Protocol are to be consciously focused on the rights and interests of young people from Aboriginal backgrounds and to be culturally sensitive and relevant in their responses in providing care.

The protocol aims to promote the principle that criminal charges will not be pursued against a young person if there is an alternative and appropriate means of dealing with the matter, and to enhance police efforts to divert young people from the criminal justice system.

See also AVO proceedings involving children at [24-000]ff.

An application made by or on behalf of a child against an adult is heard in the Local Court.

Note:

ss 41(2)–(5) and 41AA Crimes (Domestic and Personal Violence) Act respectively deal with the exclusion of the public in cases where an order (or variation or revocation of the order) is sought for the protection of a child under the age of 16 years, or between the ages of 16 and 18 years.

Any final order made for the protection of a child results in that order being notified to the Office of the Children’s Guardian. If the person against whom the order is made at any subsequent time seeks to work in child-related employment, the fact that an order has been made must be taken into account as part of a Working with Children check.