Children's Court (Evidence - Audio Visual and Audio Linking) Rules 2018

The Children’s Court (Evidence - Audio Visual and Audio Linking) Rules 2018 (the Rules) are a subordinate legislative instrument that prescribes the procedural machinery for making applications in the Children’s Court under Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 (the Act). Part IIA of that Act deals with the use of audio visual links and audio links to allow persons to appear before, give evidence to, or make submissions to a court without being physically present. The Rules replace the 2008 version of the same name, revoking the earlier instrument (rule 1.04). They were made by the President of the Children’s Court together with two magistrates on 19 February 2018, pursuant to the rule-making power in section 589 of the Children, Youth and Families Act 2005, and came into operation on 26 February 2018 (rule 1.03). The Rules will sunset 10 years after the date of making, on 19 February 2028, as required by section 5 of the Subordinate Legislation Act 1994 (see endnote 1).

Mechanically, the Rules set out the forms that must be used for applications under various sections of Part IIA of the Act, the timing for filing notices, service obligations, a duty to notify the registrar if a link is no longer required, and default arrangements for the payment of prescribed costs. There are three prescribed forms: Form 1 for an application under section 42E(1) (for a direction to use an audio visual or audio link generally), Form 2 for an application under section 42L (for a direction that an accused person appear physically before the court), and Form 3 for applications under sections 42M, 42N or 42P (each dealing with specific circumstances where an accused person may appear by audio visual link). The Rules do not alter the substantive criteria for granting or refusing a direction under Part IIA; those remain in the parent Act. Instead, the Rules impose procedural discipline on how such applications are brought in the Children’s Court, including default timeframes and the requirement to use the correct notice. The object stated in rule 1.01 is “to facilitate applications to the Court under Part IIA”, which frames the instrument as a procedural enabler rather than a source of new rights or duties.

The Rules operate around several linked concepts drawn primarily from Part IIA of the Evidence (Miscellaneous Provisions) Act 1958. Audio visual link means technology that enables simultaneous transmission of sound and vision, allowing participants in different locations to see and hear each other in real time. Audio link means sound-only transmission. A direction is an order made by the Children’s Court under Part IIA that a person may, or must, appear before or give evidence or make a submission to the court by audio visual link or audio link. The applicant is the party who seeks the direction - typically the prosecution, the accused, or a legal representative, depending on the section under which the application is made.

The Rules create distinctions between different types of applications based on the provision of Part IIA being invoked. Section 42E(1) is the general provision allowing a court to direct that a person (including a witness or a party) appear or give evidence by audio visual link or audio link. Applications under this section must use Form 1 (rule 2.02), must be filed at least 7 days before the person is due to appear or give evidence (rule 2.03), and must be served on every other party as soon as practicable after filing (rule 2.04). The applicant also has a continuing duty to notify the registrar if the link is no longer required (rule 2.05). Section 42L allows the court to direct that an accused person be brought physically before the court, effectively overriding the default use of audio visual links in certain remand or appearance contexts. Form 2 is prescribed for this, unless the application is made in accordance with section 42L(5) (which allows oral application in certain circumstances) (rule 2.07). Sections 42M, 42N and 42P deal with directions for an accused person to appear by audio visual link - 42M for preliminary hearings or bail applications, 42N for sentencing or appeals, and 42P for transfer of proceedings. All three use Form 3 (rules 2.08-2.10), unless made in accordance with the respective subsections that permit oral or ex parte applications. Service under rules 2.07-2.10 may be by pre-paid post. The concept of default cost payment appears in rule 2.06: unless the court otherwise orders, the applicant must pay the prescribed amount (if any) under section 42H(1) of the Act in the first instance. This means the applicant bears the immediate financial burden of the link’s cost, subject to any later cost order.

The Rules directly affect any person who is a party to, or a participant in, proceedings in the Children’s Court where an audio visual link or audio link may be used. This includes accused persons in criminal proceedings, prosecutors (whether police or other authorised officers), legal practitioners acting for any party, and witnesses who are required to give evidence. Because the Children’s Court also hears protection applications under the Children, Youth and Families Act 2005 - and Form 1 includes “Protection application” as a type of hearing - the Rules also affect parties in child protection proceedings, such as the Department of Health and Human Services, parents, and children’s representatives.

Court staff, particularly registrars, are affected because they must receive notices of application, process filing, complete Part 2 of Forms 1 and 3 (setting hearing dates), and receive notifications under rule 2.05 that a link is no longer required. The Rules impose a duty on the applicant to notify the registrar if the link is no longer needed, which affects the registrar’s scheduling and resource allocation. Applicants - the party initiating the application - bear the default cost burden under rule 2.06, which creates a financial incentive to consider whether the application is genuinely necessary. The Rules also impose a time burden: applicants must file at least 7 days before the relevant appearance unless the court directs otherwise (rule 2.03), which will affect lawyers’ scheduling and case management.

Other parties to the proceeding are affected because they must be served with the notice of application (rule 2.04) and thus have an opportunity to be heard in opposition. The Rules do not require the consent of other parties, but Form 1 and Form 3 ask whether the application is made with consent, indicating that the court may consider lack of consent when deciding the application. The Rules do not directly affect witnesses who are not parties, except that the duty to notify the registrar if a link is no longer required (rule 2.05) may reduce inconvenience caused by cancelled arrangements. Persons paying costs indirectly affected: if the appropriate amount is prescribed under section 42H(1) of the Act, the applicant must pay it in the first instance, subject to any later court order shifting the cost (rule 2.06). This may affect the budgets of prosecuting agencies or legal aid bodies that frequently act as applicants.

The Rules impose several specific duties on applicants and confer certain rights on other parties. The most prominent duty is the obligation to file notice at least 7 days before the date the person is due to appear or give evidence (rule 2.03). This duty is not absolute - the court may otherwise direct - but it sets a default timeline that applicants must meet or seek a variation. The duty to serve a copy of the notice on every other party “as soon as practicable” after filing (rule 2.04) is a continuing obligation that applies to all applications under section 42E(1). For applications under sections 42L, 42M, 42N and 42P, service may be by pre-paid post (rules 2.07(c), 2.08(c), 2.09(c), 2.10(c)), but the duty to serve still applies unless the application is made in accordance with the relevant subsection that dispenses with notice.

The duty to notify the registrar if the applicant no longer requires the person to appear or give evidence by audio visual link or audio link (rule 2.05) is noteworthy because it applies both before and after a direction has been given. This means an applicant cannot simply abandon the matter; they must actively notify the court so that resources can be reallocated. The duty is triggered when the applicant “no longer requires” the link - a subjective condition that could give rise to disputes if the applicant delays notification. The duty to pay costs in the first instance (rule 2.06) is another financial obligation, though the court may order otherwise. The appropriate amount is whatever is “prescribed by the regulations (if any)” under section 42H(1) of the Act - if no amount is prescribed, the duty may be nominal or inoperative.

The right to be heard is implicit: other parties must be served, and they can attend the hearing of the application (Part 2 of Forms 1 and 3 sets out the hearing date). The right to oppose is not expressly stated but follows from the adversarial process. The right to apply without notice exists only where the application is made in accordance with the relevant subsection of the Act (e.g., section 42L(5) for oral applications). Where that is the case, the procedural requirements of the Rules (including use of the prescribed form and post-service) do not apply. The court’s right to dispense with the 7-day filing requirement (rule 2.03) and to order a different cost allocation (rule 2.06) is a power, not a duty, and applicants must be prepared to justify any departure. The is limited: they must notify the registrar if the link is no longer required, but this does not automatically revoke a direction already given - the court may need to formally vacate it.

The Rules themselves contain no penalty provisions. There are no fines, imprisonment terms, or other sanctions set out within the text. Enforcement of the Rules is achieved through the court’s inherent or statutory powers to manage its own proceedings, and through the substantive provisions of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, which may include offences for failing to comply with a direction. However, that is outside the scope of these Rules.

Where an applicant fails to comply with a procedural requirement, such as filing the notice at least 7 days before the relevant date (rule 2.03) or serving other parties as soon as practicable (rule 2.04), the likely consequence is that the court may refuse to hear the application, adjourn it, or make a direction on terms that are unfavourable to the non-compliant party. The court may also exercise its dispensing power to “otherwise direct” and waive the non-compliance, but that is a matter of judicial discretion, not a prescribed penalty. Failure to notify the registrar under rule 2.05 if a link is no longer required could result in wasted court resources and wasted costs, but the Rules do not specify any consequence; the court could potentially order costs against the applicant if the failure causes unnecessary expense to another party or to the court system.

The default cost rule (rule 2.06) is effectively a financial obligation that is enforceable by the court: if the applicant does not pay the prescribed amount, the link may not be established, or the applicant may be in breach of an undertaking (note that Form 1 includes an undertaking to pay). The court could treat non-payment as a contempt or as a basis for striking out the application, though again the Rules do not say so explicitly. Because the Rules are procedural and subordinate, serious non-compliance could be referred to the parent Act for enforcement, but there is no penalty clause in the Rules themselves. This means the primary enforcement mechanism is the court’s control over its own process: refusal of orders, cost orders, and potential adverse inference.

The Rules sit within a legislative hierarchy. Their authorising provision is section 589 of the Children, Youth and Families Act 2005, which confers on the President of the Children’s Court and magistrates the power to make rules for the court. The Rules are therefore subordinate to that Act, as well as to the Evidence (Miscellaneous Provisions) Act 1958 whose Part IIA they facilitate. The object (rule 1.01) explicitly states that the Rules are made to facilitate applications under Part IIA, so they are essentially a procedural adjunct to that Part. Any inconsistency between the Rules and the parent Act would likely be resolved in favour of the Act, unless the Act itself authorises the rules to modify procedural matters.

The Rules also interact with the Subordinate Legislation Act 1994, as noted in the endnotes: the Rules sunset 10 years after making (on 19 February 2028) unless sooner revoked or remade. This imposes a built-in expiry and prompts periodic review. The Rules revoke the previous Children’s Court (Evidence - Audio Visual and Audio Linking) Rules 2008 (rule 1.04), so any proceedings under the old rules after 26 February 2018 would be governed by the new Rules.

The Rules interact with any cost regulations made under section 42H(1) of the Act, because rule 2.06 refers to “the appropriate amount prescribed by the regulations (if any)”. If no such regulations exist, the cost provision may be inoperative. The Rules also interact with the general law of service; for applications under sections 42L-42P, service may be by pre-paid post (rules 2.07-2.10), which is a departure from the possibly more stringent service requirements in other court rules. The Rules do not specify what constitutes service for a section 42E(1) application beyond “as soon as practicable” - that would be governed by the court’s general practice.

The Rules do not amend the substantive law on the use of audio visual links. They do not, for example, specify when a direction must be given or what factors the court must consider - those are in the Act. They also do not override the Criminal Procedure Act 2009 or Children, Youth and Families Act 2005 provisions on bail, remand, or trial management, except insofar as they provide procedural steps for applications under Part IIA. Practitioners must therefore read the Rules together with the relevant sections of those Acts, particularly the provisions in Part IIA of the Evidence (Miscellaneous Provisions) Act that deal with the grounds for granting a direction, such as whether it is in the interests of justice, and the requirements for giving evidence by audio visual link in sexual offence or family violence proceedings.

According to the endnotes in the source, the Children’s Court (Evidence - Audio Visual and Audio Linking) Rules 2018 have no amendments. The Table of Amendments (endnote 2) is empty, and there are no amendments not in operation (endnote 3). The instrument was made on 19 February 2018 and came into operation on 26 February 2018, and as of the version published (Version No. 001, which is the only version) it has not been amended by any statutory rule, subordinate instrument, or Act. This is unsurprising for a relatively recent and narrow procedural instrument. The only change from the previous regime is the revocation of the 2008 Rules. Interested parties should monitor the Victorian Legislation website for any future amendments, which could be prompted by reforms to Part IIA of the Evidence (Miscellaneous Provisions) Act or by practical experience with the current forms and timelines.

The source document does not record any litigation history. There are no references to court cases, judicial decisions, or reported challenges to the validity or interpretation of these Rules. Because the Rules are procedural and have not been amended, it appears they have not been the subject of contested appeals or interpretive rulings. However, this does not mean that applications under Part IIA in the Children’s Court have never been litigated - only that the Rules themselves are not mentioned in any reported case within the source. Practitioners should be aware that decisions on the Act’s provisions (such as whether to grant a direction) may be appealed, and that procedural non-compliance with the Rules could be raised as a ground of appeal. The Rules are also a young instrument (made in 2018), so the absence of litigation history is not remarkable. If future litigation arises, it would likely centre on the interpretation of the filing deadline (rule 2.03), the sufficiency of service by post (rules 2.07-2.10), or the scope of the dispensing power.

Several provisions contain traps for the unwary. The 7-day filing requirement (rule 2.03) is a default that the court may displace, but an applicant who treats it as optional risks having the application dismissed or postponed. The requirement applies to applications under section 42E(1) only, not to the other sections (42L-42P have no stated filing deadline), but the Act itself may imply a need for timely application. Conversely, the absence of a stated deadline for applications under sections 42L-42P does not mean they can be made at the last minute; the court may still expect reasonable notice.

The duty to notify under rule 2.05 applies “whether before or after a direction has been given”. This means an applicant who obtains a direction but later finds it unnecessary must still proactively notify the registrar. Failure to do so could result in wasted resources and a potential cost order, even though the Rules do not expressly impose a penalty. The duty uses the phrase “no longer requires”, which is subjective; an applicant could be deemed to have known earlier than they acted, leading to dispute.

Service by pre-paid post is permitted for applications under sections 42L-42P (rules 2.07-2.10), but only where the application is not made in accordance with the relevant oral or ex parte subsection. Practitioners who follow the oral application route do not need to serve a notice at all, but if they do, they must use the prescribed form. The interplay between the subsections and the Rules is subtle and could easily be missed. Similarly, the undertaking to pay costs is embedded in Form 1 as a signature line; an applicant who signs the form without authority or without understanding that the undertaking is enforceable may be personally liable for costs.

The definition of “the Act” in rule 2.01 is limited to Order 2 only. This means outside Order 2, references to “the Act” in the Rules do not automatically refer to the Evidence (Miscellaneous Provisions) Act 1958. This is unlikely to cause confusion in practice because Order 2 contains all the substantive rules, but it is a drafting quirk to note.

Another trap: Form 2 (application under section 42L) is for a direction that the accused appear physically - i.e., the opposite of a link. Lawyers accustomed to thinking of audio visual link applications may instinctively reach for Form 1. Using the wrong form could lead to rejection or delay. Similarly, is for applications under sections 42M, 42N or 42P - all for directions that the accused appear . Practitioners must carefully identify which section of the Act applies based on the type of hearing (preliminary, bail, sentencing, appeal, transfer).

Compliance with the Rules involves a straightforward series of steps, but attention to detail is essential. Identify the correct provision under Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 that applies to the proceeding. If the application is for a direction that any person (including a witness or party) appear or give evidence by audio visual link or audio link, use section 42E(1) and Form 1. If the application is for a direction that the accused person appear physically before the court (overriding the default link), use section 42L and Form 2. If the application is for a direction that the accused person appear by audio visual link in a preliminary hearing, bail application (s 42M), sentencing or appeal (s 42N), or transfer of proceeding (s 42P), use Form 3.

Preparation: Complete the relevant form in full. For Form 1, fill in Part 1 with the type of link (audio visual or audio), originating and receiving cities, type of hearing, number of persons, suggested time, estimate of duration, consent status, and hearing date if fixed. Note that the applicant must sign the undertaking to pay costs. For Forms 2 and 3, state the grounds for the application and, on Form 3, confirm whether facilities exist for an audio visual link if the accused is in custody.

Timing: For a section 42E(1) application, file the notice at least 7 days before the person is due to appear or give evidence (rule 2.03). If 7 days is not possible, seek a prior direction from the court allowing a shorter period - the rule says “unless the Court otherwise directs”, so an urgent application should be accompanied by an explanation of why the timeline could not be met. For applications under sections 42L-42P, there is no specified deadline in the Rules, but the court may expect reasonable notice; if the application is made orally under the relevant subsection (e.g., s 42L(5)), the Rules do not require a written notice at all.

Filing: File the notice at the Children’s Court registry. The registrar will complete Part 2 of Forms 1 and 3, setting the hearing date and time for the application.

Service: After filing a section 42E(1) application, serve a copy on every other party “as soon as practicable” (rule 2.04). For applications under sections 42L-42P, serve a copy as soon as practicable after filing; service may be by pre-paid post (rules 2.07-2.10). If the application is made with the consent of all parties, note that on the form; while not required, it may expedite the hearing. If the application is made under the oral or ex parte route (in accordance with the subsection), the written notice requirements and service obligations do not apply.