(a) to prescribe proceedings that may be dealt with by the Children's Court constituted by a judicial registrar; and
(b) to delegate to judicial registrars some of the powers of the Children's Court; and
(c) to establish a procedure for the review by the Children's Court of a determination of the Court constituted by a judicial registrar.
1.02 Authorising provisions
These Rules are made under sections 504(8) and 588(1AB) of the Children, Youth and Families Act 2005 and all other enabling powers.
1.03 Commencement
These Rules come into operation on 25 March 2021.
1.04 Definitions
In these Rules—
the Act means the Children, Youth and Families Act 2005.
Order 2—Powers of judicial registrars
2.01 Judicial registrar may refer matter to Court constituted by magistrate
Without limiting section 542J(1) of the Act, the Court constituted by a judicial registrar may refer any matter for hearing and determination by the Court constituted by a magistrate, whether or not—
(a) any party opposes the referral; or
(b) the judicial registrar has the power to hear and determine the matter.
Note
By virtue of section 508(8) of the Act, the Court may also be constituted by the President.
2.02 Reference by Court constituted by magistrate to judicial registrar
(1) If a proceeding or matter before the Court constituted by a magistrate, which would not otherwise be within the authority of a judicial registrar to hear and determine, appears to the Court constituted by a magistrate to be proper for determination by a judicial registrar, the Court constituted by a magistrate, by order, may refer the proceeding or matter to the Court constituted by a judicial registrar.
(2) If the Court constituted by a magistrate refers a proceeding or matter to the Court constituted by a judicial registrar, the judicial registrar may—
(a) hear and determine the proceeding or matter, subject to any directions in the order referring it; or
(b) refer it back to the Court constituted by a magistrate for determination.
2.03 Proceedings and matters that may be dealt with by a judicial registrar, whether or not contested
The Court constituted by a judicial registrar may deal with the following proceedings or matters, whether or not the proceeding or matter is contested—
(a) a proceeding under section 530 of the Act (adjourn a proceeding or abridge an adjournment period);
(b) the exercise of the powers of the court under section 194 of the Evidence Act 2008 as applied by section 57A of the Magistrates' Court Act 1989 (warrant to arrest);
Rule 2.03(c) amended by S.R. No. 70/2023 rule 4.
(c) in accordance with section 57(4) of the Magistrates' Court Act 1989 (and without limiting that subsection) the issue of a warrant under section 57(1)(a), (b) and (d) of that Act (warrant to arrest, remand warrant and warrant to seize property);
(d) a proceeding or matter under Division 3 of Part 4 of the Magistrates' Court Act 1989 in relation to a warrant issued under section 57(1)(a), (b) and (d) of that Act;
(e) a proceeding for an order to remove a prisoner from a prison and to have the prisoner brought before the Court under regulation 23(1) of the Corrections Regulations 2019[1] (a "gaol order");
(f) a proceeding for the release of—
(i) documents or other things provided to the Court pursuant to a witness summons; or
(ii) copies of reports or other documents contained in a Court file.
2.04 Proceedings and matters in the Criminal Division that may be dealt with by a judicial registrar, whether or not contested
(1) The Court constituted by a judicial registrar may deal with the following proceedings and matters in the Criminal Division, whether or not the proceeding or matter is contested—
(a) an application for the grant of an indemnity certificate under section 17 of the Appeal Costs Act 1998, if the proceeding relates to the adjournment of a criminal proceeding by the Court constituted by that judicial registrar;
(b) a proceeding under section 16 of the Bail Act 1977 (extension of bail);
(c) a proceeding under Part 3.4 of the Criminal Procedure Act 2009 except for the power to rehear the charge (leave to rehear charge on which a sentence was imposed in absence of person);
(d) a proceeding under sections 344B and 344C of the Act (application to extend time for commencing proceeding against a child for a summary offence and extension of period of time for commencing such a proceeding);
(e) a proceeding under section 344D of the Act (power to set aside proceedings), except for the power to re-hear the proceeding;
(f) a proceeding under section 368 of the Act (dismissal of charge where conditions of bond observed);
(g) a proceeding under the procedure in Part 7.9 of the Act and Schedule 3 to the Act (CAYPINS);
(h) an application for review of a registrar's decision under clause 10 of Schedule 3 to the Act (CAYPINS).
(2) In a criminal proceeding for a summary offence or an indictable offence triable summarily, the Court constituted by judicial registrar may exercise all or any powers of the Court, including the power to strike out a charge, under—
(a) section 53(a), (c), (d) or (e) of the Criminal Procedure Act 2009 (mention hearings); and
(b) section 54(1), (3), (4) or (6) of the Criminal Procedure Act 2009 (summary case conferences)—
but not otherwise the power to hear and determine the charge.
(3) The Court constituted by a judicial registrar may exercise all or any powers of the Court under sections 101 and 102 of the Criminal Procedure Act 2009 (filing hearings).
2.05 Proceedings and matters in the Criminal Division that may be dealt with by a judicial registrar if uncontested
(1) The Court constituted by a judicial registrar may deal with an application for variation of the amount of bail or the conditions of bail under section 18AC of the Bail Act 1977, if the application is uncontested.
(2) In a criminal proceeding for a summary offence or an indictable offence triable summarily, the Court constituted by a judicial registrar may exercise all or any powers of the Court under Division 3A of Part 5.2 of the Act, except for the power to sentence a child under section 356I(2) of the Act if the child does not complete a diversion program to the satisfaction of the Court (diversion).
(3) The Court constituted by a judicial registrar may exercise all or any powers of the Court under—
(a) Division 1 of Part 3 (court order for forfeiture of property) and Part 10 (disposal order) of the Confiscation Act 1997; and
(b) section 151 of the Firearms Act 1996 (order for forfeiture of firearms, cartridge ammunition, silencers and other prescribed items)—
if—
(c) the power is incidental to the exercise by the judicial registrar of the Court's powers under subrule (2); and
(d) the proceeding or application under the relevant Act is uncontested; and
(e) the child has not provided a notice of abandonment of the property.
2.06 Proceedings and matters in the Family Division that may be dealt with by a judicial registrar, whether or not contested
(1) The Court constituted by a judicial registrar may deal with the following proceedings and matters in the Family Division, whether or not the proceeding or matter is contested—
(a) a proceeding under section 217 of the Act (order that a Family Division application be referred for a conciliation conference);
Rule 2.06 (1)(ab) inserted by S.R. No. 70/2023 rule 5(1).
(ab) the issue of a search warrant under section 237 of the Act to enable the Secretary to exercise the Secretary's powers under a temporary assessment order;
Rule 2.06 (1)(ac) inserted by S.R. No. 70/2023 rule 5(1).
(ac) the issue of a search warrant under section 243(3), 247(1), 261(1), 268(5)(b), 269(3)(b), 270(5)(b) or 313(b) of the Act for the purpose of having a child placed in emergency care;
(b) a proceeding under section 267 of the Act (extend an interim accommodation order);
(c) an application under section 522(1)(c)(ii) of the Act for an order allowing a person who has a direct interest in a proceeding in the Family Division to participate fully in the proceeding;
Rule 2.06(1)(d) substituted by S.R. No. 90/2021 rule 5(1).
(d) a proceeding under the Personal Safety Intervention Orders Act 2010;
Rule 2.06(1)(e) inserted by S.R. No. 90/2021 rule 5(1).
(e) a proceeding under the Family Violence Protection Act 2008.
Rule 2.06(1A) inserted by S.R. No. 70/2023 rule 5(2).
(1A) A judicial registrar may exercise all or any powers of a magistrate referred to in section 241(1), 269(4), 270(6)(b), 314(2) or 598(1) of the Act with respect to the issue of a search warrant for the purpose of having a child placed in emergency care.
Rule 2.06(2) amended by S.R. No. 90/2021 rule 5(2), revoked by S.R. No. 70/2023 rule 5(3).
2.07 Applications in proceeding in the Family Division may be dealt with by a judicial registrar if uncontested
(1) This Rule does not apply to a proceeding or matter referred to in Rule 2.06(1).
Rule 2.07(2) amended by S.R. No. 90/2021 rule 6(1).
(2) The Court constituted by a judicial registrar may deal with an uncontested application in a proceeding in the Family Division other than an application in a proceeding referred to in Rule 2.06(1).
Rule 2.07(3)(4) revoked by S.R. No. 90/2021 rule 6(2).
Rule 2.07A inserted by S.R. No. 70/2023 rule 6.
2.07A Further powers of judicial registrars with respect to certain conferences and hearings in the Family Division
In any application or proceeding in the Family Division, the Court constituted by a judicial registrar may—
(a) preside at a judicial resolution conference for the purposes of negotiating a settlement of a dispute; and
Note
Judicial resolution conference is defined in section 3(1) of the Act to mean a resolution process in the Family Division of the Court presided over by the President or a magistrate or a judicial registrar for the purposes of negotiating a settlement of a dispute—
(a) including, but not limited to—
(i) mediation; or
(ii) early neutral evaluation; or
(iii) settlement conference; or
(iv) conciliation;
(b) other than a conciliation conference under section 217 of the Act.
(b) conduct a readiness hearing; and
(c) conduct a directions hearing; and
(d) conduct a mention hearing or a special mention hearing; and
(e) preside at a return from a conciliation conference.
2.08 Judicial registrar constitutes Court
In hearing and determining any application, proceeding or matter to which these Rules apply—
(a) the judicial registrar constitutes the Court for that purpose; and
(b) the same powers that the Court has in relation to the hearing and determination of such an application, proceeding or matter are delegated to the judicial registrar.
Rule 2.09 revoked by S.R. No. 70/2023 rule 7.
2.10 Judicial registrar may act for another
If circumstances so require, a judicial registrar may hear and determine a proceeding or matter under these Rules instead of the judicial registrar by whom it would otherwise be heard and determined.
Order 3—Review of determinations of judicial registrars
3.01 Definition for this Order
In this Order—
review Court means the Court constituted by a magistrate.
Note
By virtue of section 508(8) of the Act, the review Court could be constituted by the President.
3.02 Review and stay of determination of judicial registrar
(1) A party to a proceeding or matter heard and determined by the Court constituted by a judicial registrar may apply to the review Court for review of that determination by filing an application for review in Form 1.
(2) Subject to subrule (3), the filing of an application for review under subrule (1) does not operate as a stay of any order made by the Court constituted by the judicial registrar.
(3) The applicant under subrule (1) may also apply to the review Court in Form 1 for a stay of the determination by the Court constituted by a judicial registrar.
(4) The application for review must be filed within 14 days after the day on which the determination was made by the judicial registrar.
(5) The review Court may extend time under subrule (4) before or after the time expires, whether or not an application for review is made before the time expires.
(6) Unless the review Court otherwise orders, the applicant for review or stay must cause a copy of the application to be served on all other parties to the proceeding which is the subject of the application for review or stay.
3.03 Determination of application for review or stay
(1) An application for review must be determined by the review Court by way of hearing de novo.
(2) In hearing and determining an application for review or an application for a stay, the review Court must have regard to—
(a) the interests of justice; and
(b) if applicable, the principles set out in Part 1.2 of the Act.
3.04 Notification of outcome of review
Unless the review Court otherwise orders, the applicant for the review or the stay must cause a copy of any order made by the review Court to be provided to all parties who did not enter an appearance at the hearing for the review or stay.
Form 1—Application for review/stay of determination of judicial registrar
Rule 3.02
Application for *review/*stay of determination of judicial registrar under section 542K
Children, Youth and Families Act 2005
Court ref.
Name of Child:
Gender:
Details of the application
The applicant [name] applies for—
*review by the Court constituted by a magistrate (the "review Court") of the hearing and determination of this proceeding by the Court constituted by [name of judicial registrar], a judicial registrar, on [insert date].
*a stay of the determination made by the Court constituted by a judicial registrar which is the subject of the order detailed below until further order of the review Court reviewing the order.
**Details of the order the subject of the review/stay
*The order made by the Court constituted by the judicial registrar in the proceeding was [insert details of order made].
OR
*A copy of the order made by the Court constituted by the judicial registrar in the proceeding is attached [attach copy of order].
Applicant's name:
Phone:
Email:
Date:
[Signature]
Details of the hearing
A hearing of this application will be held at [insert time and date] at the Children's Court at [venue name and address].
Issued at:
Date:
Registrar
*Delete if not applicable.
Dated: 24 March 2021
JACK VANDERSTEEN President, Children's Court of Victoria
KIM M. W. PARKINSON, Magistrate, Children's Court of Victoria
GAIL HUBBLE, Magistrate, Children's Court of Victoria
═════════════
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Children, Youth and Families (Children's Court Judicial Registrars) Rules 2021, S.R. No. 22/2021 were made on 24 March 2021 by the President of the Children's Court together with 2 magistrates for that Court jointly under sections 504(8) and 588(1AB) of the Children, Youth and Families Act 2005, No. 96/2005 and came into operation on 25 March 2021: rule 1.03.
The Children, Youth and Families (Children's Court Judicial Registrars) Rules 2021 will sunset 10 years after the day of making on 24 March 2031 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Children, Youth and Families (Children's Court Judicial Registrars) Rules 2021 by statutory rules, subordinate instruments and Acts.