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Application of the principles
The court must give effect to the principles in this section:
in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
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.
Regard is to be had to the principles in interpreting this Division.
Principle 1
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
The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
The third principle is that the proceedings are to be conducted in a way that will safeguard:
the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
the parties to the proceedings against family violence.
Principle 4
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
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.
The court may exercise a power under this Division:
on the court's own initiative; or
at the request of one or more of the parties to the proceedings.
In giving effect to the principles in section69ZN, the court must:
aa) ask each party to the proceedings:
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
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
decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
decide the order in which the issues are to be decided; and
give directions or make orders about the timing of steps that are to be taken in the proceedings; and
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
make appropriate use of technology; and
if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
deal with as many aspects of the matter as it can on a single occasion; and
deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
Subsection(1) does not limit subsection 69ZN(1).
A failure to comply with subsection(1) does not invalidate an order.
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:
make a finding of fact in relation to the proceedings;
determine a matter arising out of the proceedings;
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.
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.
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.
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 section11A. 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 section11F.
These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
Divisions3, 4 and 5 of Part2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections26, 30, 36 and 41;
Note: Section26 is about the court's control over questioning of witnesses. Section30 is about interpreters. Section36 relates to examination of a person without subpoena or other process. Section41 is about improper questions.
Parts2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
Parts3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
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).
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These notes are very comprehensive and come with a table of contents. It is important to have good notes for this subject as there are many exams. If you are doing the intensive course there is not much time to do the readings and these notes will save you stress and time!...
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