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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:

Process Principles for conducting child related proceedings Section 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 child-related proceedings; and b) in making other decisions about the conduct of child-related 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 from being subjected to, or exposed to, abuse, neglect or family violence; and 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 child-focused 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. Section 69ZP Powers under this Division may be exercised on court's own initiative The court may exercise a power under this Division: a) on the court's own initiative; or b) at the request of one or more of the parties to the proceedings. Section 69ZQ General duties 1) In giving effect to the principles in section 69ZN, the court must: aa) ask each party to the proceedings: i. whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and ii. whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and b) decide the order in which the issues are to be decided; and c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and e) make appropriate use of technology; and

f)

if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and g) deal with as many aspects of the matter as it can on a single occasion; and h) deal with the matter, where appropriate, without requiring the parties' physical attendance at court. 2) Subsection (1) does not limit subsection 69ZN(1). 3) A failure to comply with subsection (1) does not invalidate an order.

Section 69ZR Power to make determinations, findings and orders at any stage of proceedings 1) If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following: a) make a finding of fact in relation to the proceedings; b) determine a matter arising out of the proceedings; c) make an order in relation to an issue arising out of the proceedings. Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings. 2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders. 3) To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

Section 69ZS Use of family consultants At any time during child-related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings. Note 1: Family consultants have the functions described in section 11A. These include assisting and advising people involved in proceedings, and this assistance and advice may involve helping people to better understand the effect of things on the child concerned. Family consultants can also inform people about other services available to help them. Note 2: The court may also order parties to proceedings to attend, or arrange for a child to attend, appointments with a family consultant. See section 11F.

Section 69ZT Rules of evidence not to apply unless court decides 1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings: a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41; Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions. b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections); c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character). 2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1). 3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if: a) the court is satisfied that the circumstances are exceptional; and b) the court has taken into account (in addition to any other matters the court thinks relevant): i. the importance of the evidence in the proceedings; and ii. the nature of the subject matter of the proceedings; and

iii. the probative value of the evidence; and iv. the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. 4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying. 5) Subsection (1) does not revive the operation of: a) a rule of common law; or b) a law of a State or a Territory; that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection. Section 69ZV Evidence of children 1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings. 2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay. 3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2). 4) This section applies despite any other Act or rule of law. 5) In this section: "child" means a person under 18. "representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.

Less adversarial trial

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The Less Adversarial Trial is used in parenting matters to limit the harm of the legal process for children. It is closely directed by the judge and aimed at encouraging parents to focus on arrangements in the best interests of children. It is also meant to cost less, spend less time in court and provide more flexible solutions. A family consultant acts as an expert advisor to the judge and parties. A final evaluation report of the program by Professor Rosemary Hunter found that the process assisted parents to parent more cooperatively. Many parties were found to have benefited from speaking directly to the judge, irrespective of whether they were legally represented. It is an active and engaging process which allows judges and family consultants to confront and challenge parents about the impact their conflict is having on their children. Note: s 62G (copied above) is the section about reports by family consultants - in that a report may be made for children under 18 if the court directs one to be made because it is desirable (they may adjourn proceedings to have one made). This report must include the wishes of the child - but they ascertain the wishes because a child is not cannot be required to express their views. Also s 69ZN sets out the guiding principles for the LAT (above in process).

Children's evidence under the Family Law Rules 2004 Part 15.1 Children

15.02 Restriction on child's evidence 1) A party applying to adduce the evidence of a child under section 100B of the Act must file an affidavit that: a) sets out the facts relied on in support of the application;

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