Magistrates Court (Children's Division) Rules 2012 (TAS)

Magistrates Court (Children's Division) Rules 2012

The Magistrates Rule Committee, in exercise of its powers under section 15AE of the Magistrates Court Act 1987, makes the following rules of court for the Magistrates Court (Children’s Division) established under the Magistrates Court (Children’s Division) Act 1998 .

PART 1Preliminary1Short titleThese rules of court may be cited as the Magistrates Court (Children’s Division) Rules 2012. 2CommencementThese rules of court take effect on 1 January 2013. 3Interpretation (1)  In these rules of court – Act means the Children, Young Persons and Their Families Act 1997; application means a protection application and any other originating process; approved form means a form approved by the Chief Magistrate under rule 8(1); case management direction means a direction, or order, given under Part 3; Children’s Division Act means the Magistrates Court (Children’s Division) Act 1998; child’s representative means an Australian legal practitioner representing a child in a proceeding – (a) under section 59(1) or (3) of the Act; or (b) under section 15(1) or (3) of the Children’s Division Act; directions hearing – see rule 22(2); interested person means a person permitted by the Court to be heard under section 51 of the Act; [Rule 3 Subrule (1) amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] originating process means any document by which a proceeding is initiated; proceeding means any matter, including an application, which is initiated by an originating process; protection application means an application under the Act for – (a) an assessment order; or (b) a variation, discharge or extension of an assessment order; or (c) a care and protection order; or (d) an extension of a care and protection order or a variation or suspension of a care and protection order; registrar means the Administrator, a district registrar or a deputy district registrar; registry means a registry of the Magistrates Court; [Rule 3 Subrule (1) amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] separate representative, of a child, means an Australian legal practitioner appointed to represent the child, pursuant to an order under section 59(4) of the Act or section 15(4) of the Children’s Division Act; [Rule 3 Subrule (1) amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] Tasmania Legal Aid means the commission constituted under section 4 of the Legal Aid Commission Act 1990. (2)  In these rules of court – (a) in a case where a proceeding has been instituted, a reference to the registry is to be read as a reference to the registry of the Court at the place in which the proceeding has been instituted; and (b) in a case where a proceeding has been instituted, a reference to the district registrar is to be read as a reference to the district registrar of the registry in which the proceeding has been instituted. (3)  Unless the contrary intention appears, an expression used in these rules of court has the same meaning as it has in the Act. (4)  If an expression is used in these rules of court and is not defined in these rules of court or the Act but is defined in the Children’s Division Act, that expression has the same meaning in these rules of court as in the Children’s Division Act. 4Application of rulesUnless the Court otherwise directs, these rules of court apply in respect of the practice and procedure of the Court, on and after the day on which these rules of court take effect, regardless of whether the proceeding before the Court was commenced before or after the commencement of these rules of court. 5Exercise of Court's powerUnless the contrary intention appears, the Court may exercise a power under these rules of court – (a) on its own initiative; or (b) on the application of a party to the proceedings or of another interested person in respect of the proceedings. 6Orders on termsUnless the contrary intention appears, if the Court has the power to make an order, or do any other act or thing, under these rules of court, the Court may make that order or do that other act or thing on any terms it thinks fit. 7Filing and lodging documentsA document that is required or permitted by these rules of court to be filed or lodged may be – (a) presented to a registry when the registry is open for business; or (b) sent by post to a registry with a written request for the processing required for the document; or (c) left, addressed to the Court, at a document exchange which the Court has notified that it has facilities to receive such documents for filing or lodging. 8Forms (1)  The Chief Magistrate may approve forms for use in proceedings under these rules of court and any form so approved is to be used, if applicable, despite the absence of any specific provision in these rules of court relating to the use of the form. (2)  Copies of the forms approved under subrule (1) are to be made available at each registry of the Court and on the Court’s website. (3)  A form is taken to have complied with these rules of court if the form is substantially in accordance with the requirements of these rules of court or has only such variations as the nature of the proceeding requires. 9Power to amend (1)  At any stage of a proceeding, the Court may – (a) amend, or direct a party to amend; or (b) with the leave of the Court, allow a party to amend – an application or document, or anything written on an application or a document, in a proceeding. (2)  The Court may specify the manner, and any conditions, the Court considers appropriate in respect of an amendment under this rule. 10Relief from rulesThe Court may dispense with compliance with any of the requirements of these rules of court, either before, on or after the occasion for compliance arises. 11Proceedings wanting or in doubt (1)  If a person is in doubt as to the manner or form of a procedure, the Court may give directions to the person. (2)  A step taken in accordance with directions given under this rule is taken to be sufficient to meet the requirements of these rules of court in respect of the procedure that the direction requires. 12Matters not otherwise coveredUnless the contrary intention appears, Part 10 of the Magistrates Court (Civil Division) Rules 1998 applies to a proceeding with such modification as the circumstances of the proceeding requires. PART 2Commencement of Proceedings13Commencement by applicationExcept as otherwise provided in these rules of court, a proceeding is to be commenced by the filing of an application. 14Parties (1)  A party claiming relief is called an applicant. (2)  A party to a proceeding, other than the applicant, is called a respondent. 15Applications to include order or relief claimedAn application must specify – (a) the order or relief claimed by the applicant; and (b) the provision of the legislation, if any, under which the order or relief is sought; and (c) the names of the parties to the application at the time the application is made. 16Name, address, &c., of applicantsAn application must be signed by an applicant, or by an Australian legal practitioner on behalf of the applicant, and is to contain – (a) the name and address of the applicant; and (b) if the applicant applies for or on behalf of another person, a statement to that effect; and (c) if the applicant is represented by an Australian legal practitioner, the name, address, telephone number, facsimile number and email address of the practitioner; and (d) an address for service in Tasmania for the applicant. 17Affidavits to accompany applications (1)  The applicant is to file an affidavit with an application. (2)  The affidavit is to show – (a) the nature of the applicant’s claim; and (b) the material facts on which it is based. 18Filing and copies (1)  Upon filing an application and affidavit under these rules of court, the registrar is to sign and affix the seal of the Court to a sufficient number of copies of the application for service and proof of service. (2)  The number of the proceeding to which the application relates is to be endorsed on each document. 19Date for hearingThe registrar is to endorse an application with a date for hearing at which the Court may hear the proceeding, in whole or in part, or give directions for the further conduct of the proceeding. 20Time for service (1)  Unless the Court otherwise orders, an application and affidavit is to be served at least 2 clear days before the time appointed under rule 19 for the hearing of the application. (2)  Subrule (1) does not apply to an application which is made ex-parte. 21Alteration of hearing dateIf a date for hearing has been appointed or made, the Court may – (a) alter the date for hearing to a later date; and (b) authorise the applicant to make corresponding alterations to the date in any copy for service of any application. PART 3Case Management22Case management directions (1)  The Court may give such directions, or orders, as it considers necessary or appropriate – (a) to prepare a case for hearing or resolution by agreement; and (b) to ensure, as far as is fair and just, the efficient and timely determination of the proceeding. (2)  For the purposes of these rules of court, a hearing at which a case management direction is made is referred to as a directions hearing. 23Conduct of directions hearing (1)  The Court may give a case management direction in relation to a proceeding on any occasion that the proceeding is before the Court. (2)  A case management direction may be given on the Court’s own motion or initiative or on the application of a party or an interested person. (3)  A party, or an interested person, to a proceeding may apply in writing to the registrar for a case management direction. (4)  An application under subrule (3) is to set out, in a clear and concise manner, the terms of each direction, or order, sought in the application. (5)  A person who has applied to the registrar under subrule (3) is to give a copy of the application to the other parties to the proceeding. (6)  The registrar is to give notice, to the parties to a proceeding, of a directions hearing that has been convened at the initiative of the Court. (7)  The Court may permit, if it is just and fair to do so, a party to apply for a direction, or order, under this rule in one or more of the following ways: (a) orally; (b) in the absence of any other party; (c) with or without notice to any other party. (8)  If the Court thinks fit and the parties to a proceeding agree, the Court may hear and determine the proceeding at a directions hearing. 24Case management generally (1)  The Court may – (a) conduct a directions hearing by telephone, video link or other means; and (b) give directions as to the manner in which a directions hearing is to be conducted and the persons who are to attend. (2)  On any occasion where a proceeding is before the Court, the Court may – (a) fix a date for a directions hearing; or (b) fix a date for the hearing of the proceeding; or (c) direct the parties to arrange with the registrar a date for hearing of the proceeding; or (d) fix a date after which either party may request a date for the hearing of the proceeding. 25Matters the Court must consider (1)  If the Court thinks fit, the Court must, as soon as practicable, consider and give directions, or orders, about any one or more of the following matters: (a) the identification and service of parties to an application; (b) whether any other person should be given notice of the proceeding; (c) whether an order has been, or should be made, under section 59 of the Act for separate representation of a child; (d) whether the parties should be referred to alternative dispute resolution including by a conference convened under the Alternative Dispute Resolution Act 2001; (e) whether a conference of the parties under section 52 of the Act, or a family group conference under section 62 of the Act, should be convened; (f) whether the appointment of a guardian, or the approval of an advocate, for a party is necessary or appropriate. (2)  Directions, or orders, about the matters referred to in this rule may be made at any stage of a proceeding. 26Other matters for case management directionsWithout limiting the generality of rule 22, the Court may give directions, or orders, about any one or more of the following matters: (a) the simplification, or more adequate definition, of issues; (b) admissions of fact or documents; (c) any matter which may reduce the cost of a witness attending; (d) in relation to expert witnesses – (i) limiting the number of expert witnesses that may attend; and (ii) determining the matters in relation to which an expert witness is to provide evidence; and (iii) the appointment of an expert witness by the Court or jointly by the parties; (e) a timetable for a proceeding, including a timetable for the delivery of affidavits and expert reports; (f) amendments; (g) the standing and filing of affidavits; (h) modes of proof; (i) the preparation and settlement of issues; (j) the place, time and mode of hearing; (k) the giving of evidence at a hearing, including whether evidence of witnesses is to be given orally or by affidavit, or both; (l) the taking of evidence and receipt of submissions by video link, audio link, or electronic communications, or such other means as the Court considers appropriate; (m) whether a party, or an Australian legal practitioner representing a party, should be permitted to inspect or copy a document in the possession, custody or power of the Secretary and, if so, on what terms and conditions; (n) the giving of notice, and the determination, of objections to evidence before a hearing; (o) the exemption of witnesses from attendance; (p) the variation of, or dispensation from, compliance with any provision of these rules of court on their application to a proceeding. 27Case management directions by officer of CourtAn officer of the Court nominated by a magistrate to preside over a conference convened under section 52 of the Act may, if the officer considers it appropriate to do so, do either or both of the following: (a) give a direction about the matters referred to in rule 26(e); (b) refer a proceeding to a directions hearing. 28Revocation of case management directionsThe Court may revoke or vary any direction, or order, made under rule 22, 25, 26 or 27. PART 4Affidavits29Form of affidavits (1)  Subject to rule 10, an affidavit under these rules of court is to comply with this Part. (2)  An affidavit is to comply with the following: (a) it is to bear the title of the proceeding in which it is sworn; (b) it is to be drawn up in the first person; (c) it is to state the residential, or business, address and the occupation of the person making it or, if none, a description of the person making it; (d) it is to be divided into consecutively numbered paragraphs each of which is to be confined to a distinct part of the subject; (e) any sum of money or number is to be in figures only; (f) a statement (the jurat) must be placed at the end of the body of the affidavit and must – (i) state the full name of the person making the affidavit; and (ii) state whether the affidavit was sworn or affirmed; and (iii) state the day on which, and the place where, the person made the affidavit; and (iv) be signed by the person making the affidavit in the presence of the person authorised to take the affidavit; and (v) be then signed by the person before whom the affidavit is taken; and (vi) contain, below the signature of the person specified in subparagraph (v), a statement of the capacity of that person to take the affidavit; (g) each separate sheet is to be signed by the person before whom the affidavit is taken; (h) each annexure is to be identified by a certificate annexed to it, or endorsed in it, bearing the short title of the proceeding and signed by the person before whom it is sworn or affirmed. 30Affidavits made by 2 or more persons (1)  A jurat to an affidavit made by 2 or more persons is to contain the full names of each person making the affidavit. (2)  If the affidavit is sworn or affirmed by 2 or more persons at the same time before the same person, it is sufficient for the person before whom the affidavit is taken to state that it was sworn or affirmed by "both of the abovenamed persons" or "all of the abovenamed persons". 31Affidavits including opinionUnless the Court otherwise orders or directs, evidence of an opinion, about the existence of a fact, that is contained in an affidavit is not to be used to prove the existence of that fact unless – (a) the person making the affidavit has specialised knowledge based on his or her training, study or experience; and (b) the opinion is wholly or substantially based on that knowledge; and (c) the affidavit contains – (i) the qualifications of the person making the affidavit to give evidence as an expert; and (ii) the facts, matters and assumptions on which the opinion is based; and (iii) the reasons for the opinion; and (iv) references to any literature, or other materials, specifically relied on in support of the opinion; and (v) any examination, test or other investigation relied on in support of the opinion; and (vi) any qualification of the opinion without which the statement in the affidavit is or may be incomplete or inaccurate; and (vii) if, because of insufficient research, insufficient data or any other reason, the opinion is not a concluded fact, a statement to that effect. 32Affidavits by illiterate or blind persons (1)  If a person making an affidavit appears to the person before whom an affidavit is taken to be illiterate, blind or physically incapable of signing it, the person before whom the affidavit is taken is to certify in or below the jurat that – (a) the affidavit was read, or otherwise communicated, to the person making the affidavit in the presence of the person before whom the affidavit was taken; and (b) the person making the affidavit seemed to understand the affidavit fully; and (c) the person making the affidavit made his or her mark, or signature, on the affidavit in the presence of the person before whom the affidavit was taken. (2)  An affidavit of a person who is illiterate, blind or physically incapable of signing it is not to be used in evidence unless – (a) there is a certificate in accordance with subrule (1); or (b) the Court is otherwise satisfied of the matters referred to in that subrule. 33Alterations in affidavitsAn affidavit which has any addition, alteration or erasure is not to be used without leave of the Court unless – (a) in the case of an addition or alteration, it is authenticated by the initials of the person before whom the affidavit is taken; or (b) in the case of an erasure, the words or figures appearing at the time of taking the affidavit that are to be erased are rewritten and signed, or initialled, in the margin by the person before whom the affidavit is taken. 34Use of defective affidavitsThe Court may receive an affidavit despite – (a) any defect in it; or (b) any irregularity in its form. 35Affidavits to be filedAn affidavit is to be filed in the registry in which the proceeding to which the affidavit relates is pending or is to be instituted. 36Service of affidavits (1)  An affidavit, other than an affidavit in reply, is not to be used on the hearing of an application unless – (a) it has been filed; and (b) a copy of it has been served at least 2 clear days before the time appointed for the hearing of the application. (2)  Subrule (1)(b) does not apply – (a) to an application which is made ex parte; or (b) if, in the opinion of the Court, the application is so urgent that subrule (1)(b) is not to be enforced. (3)  An affidavit in reply is not to be used on the hearing of an application unless – (a) it has been filed; and (b) a copy of it has been served on each party to the proceeding as soon as practicable. (4)  If subrule (1) or (3) is not complied with, the Court may – (a) permit the affidavit to be used, despite the non-compliance, on any terms the Court thinks proper; or (b) adjourn the application on any terms the Court thinks proper and allow the affidavit to be used on the adjourned hearing of the application. 37Cross-examination of person making affidavits (1)  A person who makes an affidavit must attend the Court for cross-examination at the hearing of the proceeding. (2)  An affidavit is not to be used as evidence unless – (a) the person who made the affidavit attends for cross-examination; or (b) the Court makes an order under subrule (4) exempting the deponent from attending for cross-examination; or (c) the parties agree to the affidavit being used as evidence; or (d) the Court grants leave for its use. (3)  A party may apply to the Court for an order exempting a person who makes an affidavit from attending for cross-examination. (4)  On an application under subrule (3), the Court may make an order exempting a deponent from attending for cross-examination if the deponent’s attendance is not necessary in the interests of justice having regard to – (a) the circumstances of the case; and (b) the issues in the proceeding; and (c) the cost of procuring the attendance of the deponent. (5)  Unless the Court makes an order under subrule (4), a party is entitled to compel the attendance of the person who has made an affidavit for cross-examination in the same way as that party may compel the attendance of a witness to be examined. 38Scandalous materialIn relation to any material in an affidavit that the Court considers is scandalous, the Court may – (a) order that the scandalous material in an affidavit be struck out; or (b) order that any affidavit containing the scandalous material be removed from the file; or (c) order that any affidavit containing the scandalous material be removed from the file and destroyed. 39Swearing of affidavits (1)  An affidavit sworn, or affirmed, and taken in the State is to be sworn or affirmed before any of the following: (a) a judge; (b) the Associate Judge; (c) a district registrar; (d) a person empowered by statute to administer oaths; (e) a magistrate; (f) a justice; (g) an Australian legal practitioner. (2)  An affidavit sworn, or affirmed, and taken in any place out of the State but within Australia may be sworn or affirmed before any person having authority to administer an oath or affirmation in that place and the Court is to take judicial notice of the signature of the person that is appended to the affidavit. (3)  The signature of a person authorised to take affidavits when appearing in any jurat or attestation to an affidavit sworn, or affirmed, and taken in Australia is evidence that the affidavit was duly sworn, or affirmed, and taken before that person on the day and place attested to. 40Affidavits sworn or affirmed before practitioner or agentAn affidavit is not sufficient if it is sworn or affirmed before – (a) an Australian legal practitioner, or an Australian legal practitioner of any description in the place at which the affidavit is sworn, and who is acting for the party on whose behalf the affidavit is to be used; or (b) the agent of such a practitioner; or (c) a member of the law practice of such a practitioner or agent; or (d) a practitioner or clerk employed by such a practitioner, agent or law practice; or (e) a party to the proceeding. PART 5Court Order for Separate Legal Representation of Child41Orders to be sent to Legal Aid Commission [Rule 41 Amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] If the Court makes an order under section 59 of the Act to secure legal representation for a child, or that a child be separately represented by an Australian legal practitioner, the district registrar must, as soon as practicable, send to the Director of Tasmania Legal Aid a copy of the order. 42Legal Aid Commission to advise district registrar [Rule 42 Amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] The Director of Tasmania Legal Aid, as soon as practicable after receiving a copy of an order under rule 41, must advise the district registrar in writing – (a) [Rule 42 Amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] if Tasmania Legal Aid allocates an Australian legal practitioner to represent the child specified in the order, the Australian legal practitioner’s name and contact details; or (b) [Rule 42 Amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] if Tasmania Legal Aid does not allocate an Australian legal practitioner to represent the child specified in the order, the decision not to allocate an Australian legal practitioner to the child and the reasons for the decision. 43Separate legal representation to have access to materialsIf an Australian legal practitioner is allocated to represent a child specified in an order under section 59 of the Act, the district registrar is to make all material, filed in the proceeding that relates to the order, available for inspection by the Australian legal practitioner. PART 6Service44Service of documents generallyIf a party is represented by an Australian legal practitioner, service of a document other than an application on that party may also be effected by – (a) handing it to the legal practitioner; or (b) sending it by post or facsimile to the legal practitioner’s business address; or (c) depositing it at an approved document exchange, within the meaning of the Magistrates Court (Civil Division) Rules 1998, addressed to the DX number of the party or the practitioner acting on behalf of the party; or (d) sending it by electronic mail to the legal practitioner’s email address. 45Service of brochuresA person who files an application under the Act must also serve any information brochure, specified by the Court to be served with the application, when serving a copy of that application on any person required to be served with the application under section 65 of the Act. 46Substituted and informal service (1)  If a document that is required or permitted to be served on a person in connection with any proceedings under these rules of court – (a) cannot practicably be served on the person; or (b) cannot practicably be served on the person in the manner provided by law – the Court, by order, may direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2)  An order under this rule may direct that the document is taken to have been served on the person concerned – (a) on the occurrence of a specified event; or (b) on the expiry of a specified time. (3)  If steps have been taken, otherwise than under an order under subrule (1), for the purpose of bringing the document to the notice of the person concerned, the Court, by order, may direct that the document be taken to have been served on that person on a date specified in the order under this subrule. (4)  Service in accordance with this rule is taken to constitute personal service. 47Evidence of serviceEvidence of service of an application, affidavit, document or any other court process may be provided by – (a) a memorandum of service signed by the person who performed service; or (b) the sworn evidence, affidavit or statutory declaration of that person. 48Affidavit of service (1)  Service of a document under these rules of court may be proved by an affidavit of service of the document. (2)  The affidavit of service is to be in an approved form. (3)  The affidavit – (a) for an affidavit of personal service, must be made by the person who served the document and is to include the following information: (i) the full name and signature of the person who served the document; (ii) the time, date and day the document was served; (iii) the place of service; (iv) the name of the person served and how the person was identified; or (b) in any other case – (i) must state the relevant dates and the facts showing service; and (ii) may be made on information given to, or the belief of, the person performing service; and (iii) if made on information given to the person performing service, must state the source of the information. (4)  The affidavit of service – (a) must have the document that was served filed with it as an exhibit; or (b) must be written on the document that was served; or (c) must, if the document that was served has already been filed, mention the document in a way that is sufficient to enable the document to be identified. (5)  Nothing in this rule prevents service from being proved in another way. PART 7Summons49Production of document from another court (1)  A party who seeks to produce to the Court a document in the possession of another court must give the district registrar a written notice setting out – (a) the name and address of the court having possession of the document; and (b) a description of the document to be produced; and (c) the date when the document is needed to be produced; and (d) the reason for seeking production of the document. (2)  On receiving a notice under subrule (1), a district registrar may ask the other court, in writing, to produce the document to the district registrar by a specified date. (3)  A party to the proceeding may apply to the Court to inspect and copy a document produced to the Court under this rule. 50Requiring attendance of witnesses and production of documentsWithout limiting the matters which may be considered by the Court before it issues a summons under section 16(1) of the Children’s Division Act, the Court may consider any or all of the following: (a) whether the intended witness is able to give material evidence; (b) whether the intended witness is able to produce material documents, articles or things; (c) whether the intended witness will incur unreasonable hardship by attending Court; (d) whether the evidence of the intended witness is otherwise available to the Court; (e) the nature of the evidence of the intended witness and its importance to the decision that the Court is required to make in respect of the proceeding. 51Form of witness summonsAn application for a summons under section 16(1) of the Children’s Division Act is to be in an approved form. 52Setting aside or other relief (1)  The Court may, on the application of a party or any interested person, set aside all or part of a summons issued under section 16(1) of the Children’s Division Act. (2)  Before an application is made under subrule (1), the person intending to make the application must give reasonable notice, of his or her intention to make the application, to the person on whose behalf the summons that is the subject of the application was issued. (3)  Despite subrule (2), the Court may order that the applicant give notice of the application to any other party or to any other interested person. 53Compliance with a summons to produce a document or thing (1)  A person is to comply with a summons to produce a document or thing – (a) by attending at the date, time and place specified in the summons for production and producing the summons, or a copy of it, and the document or thing to the Court or to the officer of the Court nominated in the summons; or (b) by delivering or sending the summons, or a copy of it, and the document or thing to the district registrar so that they are received not less than 2 clear days before the date specified in the summons for attendance and production. (2)  In the case of a summons that requires a person to both give evidence and produce a document or thing, production of a summons, or a copy of it, and the document or thing in either of the ways specified in subrule (1) does not discharge the person from the requirement to appear and give evidence before the Court in accordance with the summons. (3)  If a person produces a document or thing in accordance with subrule (1), the district registrar must, if requested by the person, give a receipt for the document or thing to the person. (4)  If a person produces more than one document or thing in accordance with subrule (1), the person must, if requested to do so by the district registrar, provide a list of the documents or things produced. (5)  Subject to a direction to the contrary by the Court, a person may produce a copy, instead of the original, of any document required to be produced by a summons unless the summons requires the production of the original. (6)  A person may, at the time of production, inform the district registrar in writing that any document or copy of a document produced under a summons need not be returned and may be destroyed. PART 8Miscellaneous54Changes in representation to be notifiedIf an Australian legal practitioner is appointed, or ceases, to represent a party to a proceeding, the practitioner must give written notice to the Court and to each party to the proceeding of that fact as soon as practicable after being appointed or ceasing to represent the party. 55Children and young persons as witnesses (1) Subject to section 63 of the Act, a child or young person to whom protection application proceedings relate must not be called as a witness in those proceedings otherwise than by, or by leave of, the Court. (2)  The Court must not call, or give leave for the calling of, such a child or young person unless the Court has taken into consideration – (a) the age, maturity and level of understanding of the child or young person; and (b) the nature of the evidence that the child or young person is likely to give; and (c) the importance of that evidence to the decision that the Court is required to make in respect of the proceeding; and (d) the likely reliability of that evidence; and (e) the effect that the giving of evidence generally, or the giving of evidence of the nature that the child or young person is likely to give, is likely to have – (i) on the emotional wellbeing of the child or young person; and (ii) on the relationship the child or young person has with other persons; and (f) whether the child agrees to give evidence or is likely to agree to give evidence; and (g) if a separate representative has been appointed in respect of the child, the recommendation of that representative; and (h) any other matter that the Court considers appropriate. 56Expression of the child's own views (1) The expression of a child’s own views to the Court under section 56 of the Act may be in such a manner and on such conditions as the Court considers – (a) just; and (b) most likely to result in the expression of the child’s view that is honestly and freely held by the child. (2)  Unless the Court directs to the contrary, the opportunity offered to the child to express his or her own views is to be in the following manner: (a) the magistrate – (i) is to see the child in private in the presence of only the child’s representative and separate representative, if any; but (ii) must keep a record of any meeting with the child under subparagraph (i); (b) the magistrate must explain to the child, in terms the child is likely to understand, that the views expressed by the child may later be conveyed to other parties to the proceeding; (c) the magistrate – (i) to the extent that the magistrate considers just, is to inform the other party or parties to the proceeding of any view expressed by the child that the magistrate considers may affect the outcome of the proceeding; and (ii) is to allow such party or parties to respond at such time and on such terms as the magistrate considers just.

These rules of court were made by the Magistrates Rule Committee at a meeting held on 19 October 2012.

MICHAEL HILL

Chief Magistrate

MICHAEL DALY

Deputy Chief Magistrate

PETER DIXON

Member

TIM HILL

Member

CHRIS WEBSTER

Member

ROBERT PEARCE

Member

REG MARRON

Member

GLEN HAY

Member

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 12 December 2012

These rules are administered in the Department of Justice.