Children's Court (Personal Safety Intervention Orders) Rules 2011

Authorised by the Chief Parliamentary Counsel Authorised Version i Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 PART 1—GENERAL 1 1.01 Object 1 1.02 Authorising provisions 2 1.03 Commencement 2 PART 2—INTERPRETATION 2 1.05 Definitions 2 PART 3—APPLICATION OF RULES 3 1.06 Definitions 3 1.07 Application 3 PART 4—MISCELLANEOUS 4 1.09 Legal representation 4 1.10 Filing of documents 5 1.11 Seal of the Court 5 ORDER 2 6 NON-COMPLIANCE WITH THE RULES 6 2.01 Effect of non-compliance 6 2.02 Dispensing with compliance 6 ORDER 3 7 TIME AND DOCUMENTS 7 3.01 Court may fix time 7 3.02 Content and form of documents 7 3.03 Registrar refusing to accept documents 7 3.04 Scandalous matter 7 -- 1 of 40 -- Rule Page ii Authorised by the Chief Parliamentary Counsel ORDER 4 9 PROCESS IN THE COURT 9 PART 2—APPLICATIONS FOR PERSONAL SAFETY INTERVENTION ORDERS 9 4.02 Application for personal safety intervention order 9 4.04 Application for variation, revocation or extension of a personal safety intervention order 10 4.05 Form of consent 11 PART 3—MISCELLANEOUS 12 4.06 Request for further and better particulars of application 12 4.07 Withdrawal of applications 13 ORDER 5 14 SERVICE 14 5.01 Process if Court required to give documents to a person 14 5.02 Certificate of service 14 5.03 Inability to serve 15 5.04 Certificates may be filed by facsimile 15 5.05 Applications for substituted service 16 ORDER 6 17 STAY OF PROCEEDING 17 6.01 Stay of proceeding 17 6.02 Striking out proceeding 17 ORDER 7 18 AFFIDAVITS 18 7.01 Form of affidavit 18 7.02 Affidavit by illiterate, blind or incapacitated person 18 7.03 Content of affidavit 19 7.04 Affidavit by two or more deponents 19 7.05 Alterations 19 7.06 Annexures and exhibits 19 7.07 Irregularity 20 7.08 Filing and service of affidavits 20 7.09 Service of affidavits if party is unrepresented 20 7.10 Affidavit sworn before party 21 -- 2 of 40 -- Rule Page iii Authorised by the Chief Parliamentary Counsel ORDER 8 22 EXPERT EVIDENCE 22 8.01 Statement or report of expert to be filed 22 8.02 Service of statement or report 23 8.03 Service of statement or report on unrepresented party 23 8.04 Putting statement or report filed by other party in evidence 23 ORDER 9 24 HEARINGS 24 9.01 Order of hearing 24 9.02 No addresses 24 9.03 Absence of party 24 9.04 Alternative arrangements for giving evidence 24 ORDER 10 26 ORDERS 26 10.01 Certified extracts 26 ORDER 11 27 VENUE AND TRANSFER OF PROCEEDINGS 27 11.01 Venue of Court 27 11.02 Place of hearing of application 27 11.03 Venue of Court for applications under Part 10 of the Act 28 ORDER 12 29 REHEARINGS 29 12.01 Application for rehearing 29 12.02 Form of application 29 12.03 Rehearing date 29 ORDER 13 30 APPEALS 30 13.01 Form of notice of appeal 30 13.02 Stay of relevant decision 30 -- 3 of 40 -- Rule Page iv Authorised by the Chief Parliamentary Counsel ORDER 14 31 MISCELLANEOUS 31 14.03 General power of amendment 31 14.04 Directions 31 14.05 Access to court documents by mediation providers and mediators 31 FORMS 33 Form 1—Application for Rehearing 33 Form 2—Notice of appeal 35 ═══════════════ -- 4 of 40 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2011 S.R. No. 94/2011 Personal Safety Intervention Orders Act 2010 Children's Court (Personal Safety Intervention Orders) Rules 2011 The President of the Children's Court together with 2 magistrates jointly make the following Rules: ORDER 1 PRELIMINARY Introductory Note These Rules are Rules of the Children's Court as to proceedings under the Personal Safety Intervention Orders Act 2010. Related Rules These Rules are in many respects uniform with the Children's Court (Family Violence Protection) Rules 2008 (the Family Violence Protection Rules). Many of the Orders and Rules are drafted in the same terms as the Family Violence Protection Rules, except so far as minor variations are required to accord with the Personal Safety Intervention Orders Act 2010. If the Family Violence Protection Rules include an Order or a Rule that is not included in these Rules there is a gap in the numbering of these Rules in order to maintain consistent numbering for the other Orders and Rules. PART 1—GENERAL 1.01 Object The object of these Rules is to make rules of procedure for proceedings in the Children's Court of Victoria under the Personal Safety Intervention Orders Act 2010. -- 5 of 40 -- Order 1 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 2 1.02 Authorising provisions These Rules are made under section 183 of the Personal Safety Intervention Orders Act 2010 and all other enabling powers. 1.03 Commencement These Rules come into operation on 5 September 2011. 1.04 * * * PART 2—INTERPRETATION 1.05 Definitions In these Rules, unless the context or subject matter otherwise requires— Australian lawyer means an Australian lawyer as defined in the Legal Profession Act 2004, other than a barrister as defined in that Act, and includes an incorporated legal practice as defined in that Act; Court means— (a) the Family Division of the Children's Court; or (b) the Neighbourhood Justice Division of the Children's Court; proceeding, unless the contrary intention appears, means— (a) any matter in the Court commenced by application under the Personal Safety Intervention Orders Act 2010; or (b) any matter in the Court— (i) that was commenced by application under the Family Violence Protection Act 2008; and r. 1.02 -- 6 of 40 -- Order 1 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 3 (ii) in respect of which a Court has made a determination under section 136(2)(b) of the Personal Safety Intervention Orders Act 2010; the Act means the Personal Safety Intervention Orders Act 2010. PART 3—APPLICATION OF RULES 1.06 Definitions In this Part— commencement date means 5 September 2011; pending proceeding means— (a) an application referred to in section 189(2) of the Act; or (b) an application referred to in section 190(1) of the Act. 1.07 Application (1) These Rules apply to— (a) every proceeding commenced under the Act in the Court on or after the commencement date, other than a proceeding in respect of which a determination has been made under section 176E(2)(b) of the Family Violence Protection Act 2008; and (b) every proceeding commenced under the Family Violence Protection Act 2008 in respect of which a determination has been made under section 136(2)(b) of the Act. r. 1.06 -- 7 of 40 -- Order 1 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 4 (2) These Rules apply, so far as applicable and with any necessary modification, to every appeal commenced under Division 11 of Part 3 of the Act on or after the commencement date. (3) These Rules apply, with any necessary modification, to a pending proceeding and anything required or permitted to be done under these Rules with respect to a proceeding commenced on or after the commencement date may be done in a pending proceeding. 1.08 * * * PART 4—MISCELLANEOUS 1.09 Legal representation (1) Subject to the Act and the Children, Youth and Families Act 2005, a party may appear in person or with legal representation. (2) If a party obtains legal representation— (a) the representative must as soon as practicable notify the Court that he or she represents that party; and (b) the representative must inform the court as soon as practicable if he or she ceases to represent that party. (3) A notification to the Court under subrule (2)(a) must— (a) specify whether the legal representative is an Australian lawyer or a barrister; and (b) provide the legal representative's address, telephone number, fax number and email address. r. 1.09 -- 8 of 40 -- Order 1 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 5 1.10 Filing of documents Except where otherwise provided by these Rules or unless the Court otherwise orders, a document is filed by being lodged with the registrar in the office of the Court at the proper venue of the Court. Note Proper venue is defined in section 3(1) of the Children, Youth and Families Act 2005. 1.11 Seal of the Court (1) The principal registrar and every registrar must each have in his or her custody a stamp the design of which must as near as practicable be the same as the design of the seal of the Court with the addition of, in the case of— (a) the principal registrar, the words "Principal Registrar"; (b) a registrar, the word "Registrar". (2) Marking a document or a copy of a document with a stamp referred to in subrule (1) is sufficient compliance with any requirements of these Rules or an order of the Court that the document or copy be sealed with the seal of the Court. __________________ r. 1.10 -- 9 of 40 -- Order 2 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 6 ORDER 2 NON-COMPLIANCE WITH THE RULES 2.01 Effect of non-compliance (1) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein a nullity. (2) If there has been a failure to comply with these Rules, the Court may exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally. 2.02 Dispensing with compliance Subject to the Act, the Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. __________________ r. 2.01 -- 10 of 40 -- Order 3 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 7 ORDER 3 TIME AND DOCUMENTS 3.01 Court may fix time If no time is fixed by the Act or these Rules for doing any act in a proceeding, the Court may fix a time. 3.02 Content and form of documents (1) The Court may require any document in a proceeding to be prepared in any manner it thinks fit. (2) If a document for use in the Court is not prepared in accordance with these Rules or any order of the Court— (a) the registrar may refuse to accept it for filing without the direction of the Court; or (b) the Court may order that the party responsible is not entitled to rely on it in any manner in the proceeding until a document which is properly prepared is filed. 3.03 Registrar refusing to accept documents (1) A registrar may refuse to accept a document if the registrar considers that the form or contents of the document show that the document, if accepted, would be an abuse of the process of the Court. (2) The Court may direct the registrar to accept a document for filing. 3.04 Scandalous matter If a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order— (a) that the offending matter be deleted; or r. 3.01 -- 11 of 40 -- Order 3 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 8 (b) if the document has been filed, that it be taken off the file. __________________ r. 3.04 -- 12 of 40 -- Order 4 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 9 ORDER 4 PROCESS IN THE COURT PART 1—POLICE PROTECTION BEFORE COURT 4.01 * * * PART 2—APPLICATIONS FOR PERSONAL SAFETY INTERVENTION ORDERS 4.02 Application for personal safety intervention order (1) For the purposes of an application for a personal safety intervention order under section 13 or 14 of the Act, the following information is prescribed— (a) the name of the applicant; (b) the capacity in which the applicant applies; (c) the name and date of birth of each affected person; (d) if the applicant is not the affected person or a police officer— (i) whether the affected person consents to the making of the application; or (ii) if the affected person is a child, whether a parent of the child consents to the making of the application; or (iii) if the affected person has a guardian, whether the guardian consents to the making of the application; (e) whether the applicant requires leave of the Court to make the application; (f) the name, date of birth and address of the respondent; (g) the relationship between the respondent and the affected person; (h) the reasons for seeking the order; r. 4.02 -- 13 of 40 -- Order 4 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 10 (i) the nature of the prohibited behaviour or stalking alleged; (j) the conditions on the order sought; (k) whether a warrant is sought for the arrest of the respondent; (l) details of any previous application or order made under the Act or the Stalking Intervention Orders Act 2008 (as in force immediately before its repeal); (m) whether the respondent holds— (i) a firearms authority; or (ii) a weapons approval; or (iii) a weapons exemption; (n) whether an affected person or the respondent has a disability; (o) whether an affected person or the respondent is of Aboriginal or Torres Strait Islander descent. (2) If the applicant seeks a warrant for the respondent's arrest, the application must set out the reasons why a warrant is sought. 4.03 * * * 4.04 Application for variation, revocation or extension of a personal safety intervention order (1) For the purposes of sections 80 and 83 of the Act, an application for a variation, revocation or extension of a personal safety intervention order must include the following particulars— (a) the names of the parties to the proceeding in which the order was made; (b) the name of the applicant for the variation, revocation or extension; r. 4.04 -- 14 of 40 -- Order 4 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 11 (c) the capacity in which the applicant applies; (d) if the applicant is not the protected person or a police officer— (i) whether the protected person consents to the making of the application; or (ii) if the protected person is a child, whether a parent of the child consents to the making of the application; or (iii) if the protected person has a guardian, whether the guardian consents to the making of the application; (e) whether the applicant requires leave of the Court to make the application; (f) the date of making the personal safety intervention order; (g) the reasons for seeking a variation, revocation or extension; (h) if the application is for a variation, the conditions of the variation sought; (i) if the application is for an extension, the duration of the extension sought. (2) If the respondent applies for the variation or revocation of the personal safety intervention order, the application must also set out any change in circumstances since the personal safety intervention order was made. 4.05 Form of consent (1) This Rule applies if a person— (a) is required under section 15 of the Act to give written consent to the making of an application for a personal safety intervention order; or r. 4.05 -- 15 of 40 -- Order 4 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 12 (b) is required under section 85 of the Act to give written consent to the making of an application to vary, revoke or extend a personal safety intervention order. (2) The consent must include the following particulars— (a) the name, address, date of birth, occupation and gender of the person who will make the application; (b) the name, address, date of birth, occupation and gender of the person providing the consent; (c) if the person providing the consent is not the affected person or protected person, that person's relationship to the affected person or protected person; (d) a description of the application. (3) A consent under subrule (2) must be filed with the Court. PART 3—MISCELLANEOUS 4.06 Request for further and better particulars of application (1) A party may only seek further and better particulars of an application with leave of the Court. (2) If the Court decides to grant leave, the Court— (a) must fix a time for the further and better particulars to be provided; and (b) may give directions it considers appropriate for seeking and providing particulars, including— (i) limiting the particulars that may be sought; and r. 4.06 -- 16 of 40 -- Order 4 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 13 (ii) directing how particulars are to be provided. Example The Court may direct that a party provide particulars in the form of a letter, or by affidavit. 4.07 Withdrawal of applications A party seeking to withdraw an application must— (a) file a written notice of withdrawal, to be served on the respondent by the registrar; or (b) if the person attends court, make an oral application to the Court. __________________ r. 4.07 -- 17 of 40 -- Order 5 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 14 ORDER 5 SERVICE 5.01 Process if Court required to give documents to a person If under the Act or these Rules, the Court is required to give any notice or other document to any person, the Court may do so— (a) by leaving the document at the address of the person; or (b) by posting the document to the person at that person's address; or (c) if a person has a facility for the reception of documents by facsimile transmission, by transmitting the document to that facility; or (d) if the person is a respondent who has provided an email address under section 70(1) of the Act, by sending the document to that email address. Note Section 70 of the Act allows a respondent who has been excluded from a residence to give an email address as an address for service. This only applies to documents not requiring personal service. 5.02 Certificate of service (1) For the purposes of section 177 of the Act, a certificate of service must— (a) include a statement about the date, time and place the document was served; and (b) include a statement about the manner of service; and (c) specify each document served; and (d) indicate whether the certificate has been made on oath, by affidavit or is certified. r. 5.01 -- 18 of 40 -- Order 5 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 15 (2) A certificate of service must be filed as soon as practicable after service of the document to which it relates. 5.03 Inability to serve (1) For the purposes of section 178 of the Act, the certificate must— (a) be made on oath or by affidavit, or certified; and (b) include the following particulars— (i) if the person completing the certificate is a police officer, the police officer's name, rank and station; (ii) if the person completing the certificate is an appropriate registrar, the appropriate registrar's name and the location of the Court; (iii) the reasons it has not been possible to serve the document, including details of attempts to locate or serve the person; (iv) the means that the person completing the certificate believes could be used to bring the document to be served to the person's attention, and the reasons for that belief; and (c) specify each document that was to be served. (2) For the purposes of subrule (1)(a), the certificate may be certified only if it is completed by a police officer or appropriate registrar. 5.04 Certificates may be filed by facsimile A certificate completed under Rule 5.02 or 5.03 may be filed with the registrar by facsimile transmission. r. 5.03 -- 19 of 40 -- Order 5 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 16 5.05 Applications for substituted service Unless the Court otherwise orders, an application for substituted service does not need to be conducted in open court. __________________ r. 5.05 -- 20 of 40 -- Order 6 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 17 ORDER 6 STAY OF PROCEEDING 6.01 Stay of proceeding If a proceeding is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court, the Court may, on the application of a respondent, stay the proceeding. 6.02 Striking out proceeding If a proceeding— (a) is scandalous, frivolous or vexatious; or (b) may prejudice, embarrass or delay the fair hearing of the proceeding; or (c) is otherwise an abuse of the process of the Court— the Court may order that the whole or part of the application be struck out or amended. __________________ r. 6.01 -- 21 of 40 -- Order 7 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 18 ORDER 7 AFFIDAVITS 7.01 Form of affidavit (1) An affidavit must be made in the first person. (2) An affidavit must state the place of residence of the deponent and his or her occupation or, if he or she has none, his or her description. (3) Despite subrule (2), an affidavit does not have to state the deponent's place of residence if the deponent believes that it would jeopardise his or her safety to do so. (4) An affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (5) Every affidavit must be signed by the deponent, except as provided by Rule 7.02(1), and the jurat must be completed and signed by the person before whom it is sworn. (6) Each page of an affidavit must be signed by the person before whom it is sworn. (7) The first page of an affidavit must be headed immediately beneath the title of the proceeding with the name of the deponent and the date of swearing. (8) An affidavit must on the outside identify the party on whose behalf it is filed and state the name of the deponent and the date of swearing. 7.02 Affidavit by illiterate, blind or incapacitated person (1) If it appears to the person before whom an affidavit is sworn that the deponent is illiterate, blind or physically incapacitated he or she must certify in or below the jurat that— r. 7.01 -- 22 of 40 -- Order 7 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 19 (a) the affidavit was read in his or her presence to the deponent; and (b) the deponent seemed to him or her to understand it; and (c) the deponent made his or her signature or mark in the person's presence. (2) If an affidavit is made by an illiterate, blind or physically incapacitated deponent and a certificate in accordance with subrule (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent and that the deponent seemed perfectly to understand it. 7.03 Content of affidavit In an application in a proceeding an affidavit may contain a statement of fact based on information and belief if the grounds are set out in the affidavit. 7.04 Affidavit by two or more deponents If an affidavit is made by 2 or more deponents, the names of the persons making the affidavit must be inserted in the jurat, except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it is sufficient to state that it is sworn by "each of the abovenamed" deponents. 7.05 Alterations Any interlineation, erasure or other alteration in the jurat or body of an affidavit must be initialled by the person before whom it is sworn. 7.06 Annexures and exhibits (1) A document referred to in an affidavit must not be annexed to the affidavit but may be referred to as an exhibit. r. 7.03 -- 23 of 40 -- Order 7 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 20 (2) An exhibit to an affidavit must be identified by a separate certificate annexed to it bearing the same title as the affidavit and signed by the person before whom the affidavit is sworn. 7.07 Irregularity Despite any irregularity in form an affidavit may— (a) unless the Court otherwise orders, be filed; (b) with the leave of the Court, be used in evidence. 7.08 Filing and service of affidavits (1) An affidavit must be filed. (2) The affidavit must be served on the following persons— (a) the applicant or respondent (as the case requires); (b) an adult affected person or protected person; (c) if the application to which the proceeding relates was made with the consent of a parent or guardian, that parent or guardian; (d) if the affected person or protected person is a child and the Court has given leave for that child to be legally represented, that child's legal representative. (3) An affidavit must not be served on a child (other than a child who is an applicant or respondent) without leave of the Court. (4) An affidavit must be served in a manner set out in Rule 5.01(b), (c) or (d). 7.09 Service of affidavits if party is unrepresented The registrar must serve an affidavit on a party who does not have legal representation. r. 7.07 -- 24 of 40 -- Order 7 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 21 7.10 Affidavit sworn before party A party must not use in evidence on the party's behalf an affidavit sworn before— (a) a party; or (b) an employee of a party. __________________ r. 7.10 -- 25 of 40 -- Order 8 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 22 ORDER 8 EXPERT EVIDENCE 8.01 Statement or report of expert to be filed (1) A party who intends at the hearing to adduce the evidence of a person as an expert witness must, at least 5 working days before the date of the hearing at which the evidence is intended to be adduced, file— (a) a statement in accordance with subrule (2); or (b) a copy of a report in accordance with subrule (3). (2) The statement must— (a) give the name and professional address of the witness, unless the witness believes that disclosing his or her address would jeopardise his or her safety; and (b) describe the qualifications to give evidence as an expert; and (c) give the substance of the evidence it is proposed to adduce from the witness as an expert. (3) The report must— (a) give the name of the witness; and (b) describe the qualifications to give evidence as an expert. (4) A party who has not filed a statement or a copy of a report under subrule (1) must not adduce any evidence from a witness as an expert at the hearing of a proceeding unless— (a) the Court grants leave; or (b) the other parties consent; or r. 8.01 -- 26 of 40 -- Order 8 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 23 (c) the evidence is adduced in cross- examination. 8.02 Service of statement or report (1) A statement or copy of a report must be served on the following persons— (a) the applicant or respondent (as the case requires); (b) an adult affected person or protected person; (c) if the application to which the proceeding relates was made with the consent of a parent or guardian, that parent or guardian. (2) A statement or copy of a report must not be served on a child (other than a child who is an applicant or respondent) without leave of the Court. (3) A statement or copy of a report must be served in a manner set out in Rule 5.01(b), (c) or (d). 8.03 Service of statement or report on unrepresented party The registrar must serve a statement or copy of a report on a party who does not have legal representation. 8.04 Putting statement or report filed by other party in evidence A party to a proceeding may put in evidence a statement or copy of a report filed by another party in accordance with Rule 8.01. __________________ r. 8.02 -- 27 of 40 -- Order 9 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 24 ORDER 9 HEARINGS 9.01 Order of hearing The Court may give directions as to the order of evidence and generally as to the conduct of the hearing of a proceeding. 9.02 No addresses Unless the Court otherwise orders, no opening or closing addresses may be made at the hearing of any proceeding. 9.03 Absence of party (1) If, when the hearing of a proceeding is called on, any party is absent, the Court may— (a) proceed with the hearing; or (b) strike out or dismiss the application; or (c) adjourn the hearing; or (d) make any other order which the Court considers appropriate. (2) If the absent party is a respondent who has failed to appear on bail, the Court may also issue a warrant for the arrest of the respondent. 9.04 Alternative arrangements for giving evidence (1) This Rule applies if a party wishes to use alternative arrangements for giving evidence referred to in section 52(1)(a) or (b) of the Act. (2) A party may apply to use alternative arrangements for giving evidence by notifying the Court in writing before the hearing. r. 9.01 -- 28 of 40 -- Order 9 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 25 (3) A notification under subrule (2) must set out— (a) the reason the witness needs alternative arrangements for giving evidence; and (b) the alternative arrangements sought. (4) Despite subrule (2), if the party has not notified the Court, the Court may direct that alternative arrangements be made if they are available on the day of hearing at that venue of the court. __________________ r. 9.04 -- 29 of 40 -- Order 10 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 26 ORDER 10 ORDERS 10.01 Certified extracts (1) A certified extract from the Court record of any order is sufficient for any purpose for which an order is required. (2) The Court may order, on its own motion or on the application of a party, that a certified extract must not include information that would jeopardise the safety of a party or any other person. (3) In making an order under subrule (2), the Court may be constituted by a registrar. __________________ r. 10.01 -- 30 of 40 -- Order 11 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 27 ORDER 11 VENUE AND TRANSFER OF PROCEEDINGS 11.01 Venue of Court (1) An application under the Act must be made by filing the application at the proper venue of the Court. (2) Filing must be effected by— (a) filing in the office of the Court at that venue; or (b) facsimile transmission to the Children's Court of Victoria After Hours Service in the case of an application made under section 14 of the Act. Note Proper venue is defined in section 3(1) of the Children, Youth and Families Act 2005. 11.02 Place of hearing of application (1) A proceeding under the Act must be heard at the venue of the Court stated on the application, unless the Court orders otherwise. (2) The Court may adjourn the hearing of a proceeding to another venue of the Court if it is satisfied that the interests of justice so require. (3) In making a decision under subrule (2), the Court must have regard to the matters listed under paragraph (e) of the definition of proper venue in the Children, Youth and Families Act 2005. r. 11.01 -- 31 of 40 -- Order 11 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 28 11.03 Venue of Court for applications under Part 10 of the Act (1) An application to have a person declared a vexatious litigant must be filed— (a) if the person to be declared vexatious is a party in proceedings currently before the Court, at the venue for those proceedings; or (b) in any other case, at the venue of the Court that made the most recent order to which the person to be declared vexatious is a party. (2) An application by a vexatious litigant under section 166(1) of the Act must be filed at the venue of the Court that made the order declaring the person to be vexatious. __________________ r. 11.03 -- 32 of 40 -- Order 12 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 29 ORDER 12 REHEARINGS 12.01 Application for rehearing (1) A relevant person (within the meaning of section 99 of the Act) may make an application for rehearing under section 99 of the Act by filing the application at the venue of the Court where the order sought to be set aside was made. (2) The registrar must— (a) list the application for hearing; and (b) serve a copy of the application and affidavit in support on the other parties to the proceeding. (3) If the application for rehearing is struck out because the relevant person failed to appear at the time fixed for hearing of the application, any further application for rehearing is taken to be an application for leave to reapply under section 99(4) of the Act. 12.02 Form of application An application under Rule 12.01 must be in accordance with Form 1. 12.03 Rehearing date If the Court sets aside an order the proceeding must be reheard on a date fixed by the Court. __________________ r. 12.01 -- 33 of 40 -- Order 13 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 30 ORDER 13 APPEALS 13.01 Form of notice of appeal For the purposes of section 93 of the Act, a notice of appeal must be in accordance with Form 2. 13.02 Stay of relevant decision (1) An application under section 94 of the Act to stay the operation of a relevant decision must be filed. (2) The registrar may serve an application under section 94 of the Act to stay the operation of a relevant decision on the following persons— (a) the other parties to the proceeding in which the relevant decision was made; (b) if the appeal relates to a personal safety intervention order for a protected person who is a child— (i) if the application for the order was made with the consent of a parent, that parent; (ii) if a parent of the child did not consent to the application for the order, a parent of the child with whom the child normally or regularly resides; (c) if the appeal relates to a personal safety intervention order for a protected person who has a guardian, the guardian. (3) If there are exceptional circumstances, the Court may grant a stay without serving the application on any other person. __________________ r. 13.01 -- 34 of 40 -- Order 14 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 31 ORDER 14 MISCELLANEOUS 14.01—14.02* * * 14.03 General power of amendment For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including an application) in a proceeding be amended or that any party have leave to amend any document in the proceeding. 14.04 Directions At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. 14.05 Access to court documents by mediation providers and mediators (1) If the Court has made a mediation direction in a proceeding a registrar may provide the mediation provider or mediator with access to records or documents held by the court about the proceeding. (2) If— (a) a mediation direction has not been made in a proceeding; and r. 14.03 -- 35 of 40 -- Order 14 Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 32 (b) one or more parties to the proceeding have requested that the matter be assessed for mediation— a registrar may provide a mediation provider with access to records or documents held by the court about the proceeding for the purpose of assessing whether the matter is suitable for mediation. __________________ r. 14.05 -- 36 of 40 -- Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 33 FORMS FORM 1 Rule 12.02 APPLICATION FOR REHEARING In the Children's Court at: [specify venue] Case No: Applicant: [full name of applicant for rehearing] Applicant's address: Respondent: [full name of respondent to this application] Respondent's address: Protected person or person protected by the order: Address: Details of the application you would like reheard I (the applicant) am the Respondent to an application: … for a final personal safety intervention order … for an order declaring me to be a vexatious litigant The application was made at [specify court location] on [date]. Have you previously applied for a rehearing of this application? Yes/No* Note: If you were granted a rehearing, and that application was struck out by the Court, you will require leave of the Court to make another application. Reasons for applying for rehearing My reason for seeking a rehearing of the application is: … I was not personally served with the application … the application was not brought to my attention by an order for substituted service … there are exceptional circumstances and a rehearing is fair and just These circumstances are: [briefly state the reasons why you did not attend the hearing of the application] Form 1 -- 37 of 40 -- Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 34 Affidavit I [full name] make oath/ affirm and say that the contents of my application are true and correct to the best of my knowledge. Note: Under section 141 of the Evidence (Miscellaneous Provisions) Act 1958 a person who makes an affidavit knowing the contents of the affidavit to be false may be punished for the offence of perjury. SWORN/AFFIRMED at: [place] ........................................................ [signature of person making the affidavit] BEFORE ME:...................................... Name: Title: Address: A person authorised under section 123C(1) of the Evidence (Miscellaneous Provisions) Act 1958 to take an affidavit. __________________ Form 1 -- 38 of 40 -- Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 35 FORM 2 Rule 13.01 NOTICE OF APPEAL In the Children's Court at: [specify venue] Appeal No: Case No: Appellant's name: Appellant's address for service: Name and address of Appellant's solicitor: Respondent's name: Respondent's address: TO The Registrar of the Children's Court at: The Prothonotary of the Supreme Court*OR The Registrar of the County Court* at: The abovenamed respondent Details of the proceeding appealed Venue of the Children's Court from which proceeding is appealed: Date order made: Nature of proceeding: [Please attach copy of order to this Form] Grounds of appeal [Briefly state the grounds for the appeal] Form 2 -- 39 of 40 -- Children's Court (Personal Safety Intervention Orders) Rules 2011 S.R. No. 94/2011 Authorised by the Chief Parliamentary Counsel 36 The Appellant requests the Prothonotary*/Registrar* to list the appeal Details of the appeal: The appeal is to be heard by the Supreme Court*/County Court* sitting/ at: Date of appeal: Notice of appeal filed at: Date: Signature of Appellant: Signature of Prothonotary*/Registrar*: *delete if inapplicable Dated: 2 September 2011 PAUL D. GRANT, President of the Children's Court of Victoria JANE GIBSON, Magistrate, Children's Court of Victoria ANNABEL HAWKINS, Magistrate, Children's Court of Victoria ═══════════════ Form 2 -- 40 of 40 --