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Process Notes

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This is an extract of our Process document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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FL e2 3 process Consider: (1) Process? Too adversarial? (2) ICL required? Re K; M v M (3) Role of ICL? (4) Family report?
Note that under s 100B(1) and (2) child who isn't a party to a case mustn't be called as a witness unless court ohteirwse orders. See R 15.02 and r 15.04 Table of Contents

A. FLA and Adversarial System (Watson; Wood (shouldn't dispense with oral evidence, can't prevail upon parties to discontinue proceedings in other court); can order persons to see counselors (Brown v Pederson); Re P (Proceedings are not strictly adversarial, must have regard to paramount consideration: M and M) 69ZN Principles for conducting childrelated proceedings Application of the principles (1) The court must give effect to the principles in this section: (a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to childrelated proceedings; and (b) in making other decisions about the conduct of childrelated proceedings. Failure to do so does not invalidate the proceedings or any order made in them. (2) Regard is to be had to the principles in interpreting this Division. Principle 1 (3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Principle 2 (4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Principle 3 (5) The third principle is that the proceedings are to be conducted in a way that will safeguard: (a) the child concerned against family violence, child abuse and child neglect; and 1 of 12

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(b) the parties to the proceedings against family violence. Principle 4 (6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and childfocused parenting by the parties. Principle 5 (7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. Also see: s 69ZQ - General Duties of Court S 69ZR - Power to make determinsations, findings, orders S 69ZS - use of family consultants (court may designate a family consultant) (court cannot without consent take into account opinion of family consultant unless sworn evidence: s 69ZU) S 69ZT - Rules of evidence not to apply unless court decides S 69ZV - Evidence by Children of representation that would be hearsay not inadmissible solely because of law against hearsay.

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FLA and Adversarial System: Case law

1. For property proceedings: adversarial so far as possible: Proceedings of wife seeking order maintenance or property may involve dispute... judge given a wide discretion but must exercise ti in accordance with legal principles: Watson Oral evidence in proceedings should be given unless good reason to dispense: Wood. (Here the judge: disposed with oral evidence. a. Ratio: Judge alone who must assess merits of proposals. Responsibility shouldn't' be abandoned to expert opinion. b. Exception: Court should be eager to avoid crossexamination on irrelevant issues of conduct. i. Eg judge may indicate to parties that he is not concerned with or affected by counter allegations relating to family squabbles and that he considered such evidence inimical to the future relationships between the parties and the children. ii. However judge cannot exclude completely oral testimony - loses opportunity of seeing and hearing and forming opinion about them. Process is just as important as any findings of fact based on their evidence. c. May be that court has to proceed on affidavits or reports where special reasons. But no reason why judge couldn't have had the benefit of seeing and hearing parties and other significant adults. Particularly important where the fitness of both parties is in issue. if fact that counsel agreed to course proposed by Honour does not absolve the court from responsibility of assessing parties demeanour. Court now has power to order persons to attend counseling medical treatment; Gilbert; Brown and Pederson (overruling Wood on this point) Improper to suggest pressure on parties to discontinue proceedings in other court: Wood d. Within power to draw to attention of wife and her legal advisers the possible benefits to the future relationship between the parties and the children of abandoning the charges. e. However improper to say "She had better make up her mind be either advised by the police or me" - remarks that carries implication that person could cannot proceed in Family Court while charges were pending elsewhere. Decision should not have been subjected to any suggestion of pressure. Proceedings in relation to welfare of children are not strictly adversarial having regard to the Court's obligation to treat the welfare of the child as the paramount consideration: M and M Re P: separate representative ? natural justice not an absolute right (eg can limit how many examinations of child conducted)

* "Proceedings in the Family Court in property and maintenance matters are adversarial in their nature rather than inquisitorial; Watson.

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