Children's Court (Family Violence Protection) Rules 2008

i Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 PART 1—GENERAL 1 1.01 Object 1 1.02 Authorising provisions 1 1.03 Commencement 1 1.04 Revocation 1 PART 2—INTERPRETATION 2 1.05 Definitions 2 PART 3—APPLICATION OF RULES 2 1.06 Definitions 2 1.07 Application 3 1.08 Former Rules continue to apply 3 PART 4—MISCELLANEOUS 4 1.09 Legal representation 4 1.10 Filing of documents 4 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 -- 1 of 42 -- Rule Page ii ORDER 3 7 TIME, SITTINGS, COURT OFFICE 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 ORDER 4 9 PROCESS IN THE COURT 9 PART 1—POLICE PROTECTION BEFORE COURT 9 4.01 Application to extend direction or detention 9 PART 2—APPLICATIONS FOR FAMILY VIOLENCE INTERVENTION ORDERS 10 4.02 Application for a family violence intervention order 10 4.03 Application for associated final order 11 4.04 Application for variation, revocation or extension of a family violence intervention order 13 4.05 Form of consent 14 PART 3—MISCELLANEOUS 15 4.06 Request for further and better particulars of application 15 4.07 Withdrawal of applications 16 ORDER 5 17 SERVICE 17 5.01 Process if Court required to give documents to a person 17 5.02 Certificate of service 17 5.03 Inability to serve 18 5.04 Certificates may be filed by facsimile 19 5.05 Applications for substituted service 19 5.06 Service interstate 19 5.07 Service in New Zealand 19 ORDER 6 20 STAY OF PROCEEDING 20 6.01 Stay of proceeding 20 6.02 Striking out proceeding 20 -- 2 of 42 -- Rule Page iii ORDER 7 21 AFFIDAVITS 21 7.01 Form of affidavit 21 7.02 Affidavit by illiterate, blind or incapacitated person 22 7.03 Content of affidavit 22 7.04 Affidavit by two or more deponents 22 7.05 Alterations 23 7.06 Annexures and exhibits 23 7.07 Irregularity 23 7.08 Filing and service of affidavits 23 7.09 Service of affidavits if party is unrepresented 24 7.10 Affidavit sworn before party 24 ORDER 8 25 EXPERT EVIDENCE 25 8.01 Statement or report of expert to be filed 25 8.02 Service of statement or report 26 8.03 Service of statement or report on unrepresented party 26 8.04 Putting statement or report filed by other party in evidence 26 ORDER 9 27 HEARINGS 27 9.01 Order of hearing 27 9.02 No addresses 27 9.03 Absence of party 27 9.04 Alternative arrangements for giving evidence 27 ORDER 10 29 ORDERS 29 10.01 Certified extracts 29 ORDER 11 30 VENUE AND TRANSFER OF PROCEEDINGS 30 11.01 Venue of Court 30 11.02 Place of hearing of application 30 11.03 Venue of Court for applications under Part 11 of the Act 31 -- 3 of 42 -- Rule Page iv ORDER 12 32 REHEARINGS 32 12.01 Application for rehearing 32 12.02 Form of application 32 12.03 Rehearing date 32 ORDER 13 33 APPEALS 33 13.01 Particulars to be included in notice of appeal 33 13.02 Stay of relevant decision 34 ORDER 14 35 MISCELLANEOUS 35 14.01 Risk assessments 35 14.02 Service and Execution of Process Rules 35 14.03 General power of amendment 36 14.04 Directions 36 ═══════════════ ENDNOTES 38 -- 4 of 42 -- 1 STATUTORY RULES 2008 S.R. No. 156/2008 Family Violence Protection Act 2008 Children's Court (Family Violence Protection) Rules 2008 The President of the Children's Court together with 2 magistrates jointly make the following Rules: ORDER 1 PRELIMINARY 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 Family Violence Protection Act 2008. 1.02 Authorising provisions These Rules are made under section 210 of the Family Violence Protection Act 2008 and all other enabling powers. 1.03 Commencement These Rules come into operation on 8 December 2008. 1.04 Revocation The Children's Court (Family Violence) Rules 2000 1 are revoked. -- 5 of 42 -- Order 1 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 2 PART 2—INTERPRETATION 1.05 Definitions In these Rules, unless the context or subject matter otherwise requires— barrister means a barrister as defined in the Legal Profession Act 2004; 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 any matter in the Court commenced by application under the Family Violence Protection Act 2008; risk assessment means the summary relating to an affected family member's or protected person's risk of family violence prepared under the Common Risk Assessment and Risk Management Framework; solicitor 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; the Act means the Family Violence Protection Act 2008. PART 3—APPLICATION OF RULES 1.06 Definitions In this Part— commencement date means 8 December 2008; r. 1.05 -- 6 of 42 -- Order 1 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 3 former Rules means— (a) the Magistrates' Court Civil Procedure Rules 1999; and (b) the Children's Court (Family Violence) Rules 2000; pending proceeding means a complaint or an application referred to in section 218(1) of the Act. 1.07 Application (1) These Rules apply to every proceeding commenced under the Act in the Court on or after the commencement date. (2) These Rules apply, so far as applicable and with any necessary modification, to every appeal commenced under Division 9 of Part 4 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 Former Rules continue to apply Despite rule 1.04, the former Rules continue to apply to the following as if the Children's Court (Family Violence) Rules 2000 had not been revoked— (a) proceedings referred to in section 219(1)(a) of the Act; (b) an appeal referred to in section 219(1)(b) of the Act. r. 1.07 -- 7 of 42 -- Order 1 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 4 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 the party. (3) A notification to the Court under subrule (2)(a) must— (a) specify whether the legal representative is a solicitor or a barrister; and (b) provide the legal representative's address, telephone number, fax number and email address. 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. r. 1.09 -- 8 of 42 -- Order 1 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 5 1.11 Seal of the Court (1) The principal registrar and every registrar must each have in his or her custody a stamp in a design that is as near as practicable 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. 1.11 -- 9 of 42 -- Order 2 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 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 42 -- Order 3 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 7 ORDER 3 TIME, SITTINGS, COURT OFFICE 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 42 -- Order 3 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 8 (b) if the document has been filed, that it be taken off the file. __________________ r. 3.04 -- 12 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 9 ORDER 4 PROCESS IN THE COURT PART 1—POLICE PROTECTION BEFORE COURT 4.01 Application to extend direction or detention For the purposes of an application under section 19 or 20 of the Act, the following particulars are prescribed— (a) the name, rank, number and station of the police officer making the application; (b) the name, date of birth and gender of the person who has been directed or detained; (c) the name, rank, number and station of the police officer who issued the direction; (d) the time, date and place that the direction was issued; (e) the grounds for issuing the direction; (f) if the person has been detained— (i) whether the person refused or failed to comply with the direction; and (ii) the time and date that the person was apprehended and detained; (g) the location of the person who has been directed or detained; (h) the time and date of making the application; (i) the duration of the direction or detention at the time of making the application; (j) the proposed period of the extension; (k) the grounds for making the application. r. 4.01 -- 13 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 10 PART 2—APPLICATIONS FOR FAMILY VIOLENCE INTERVENTION ORDERS 4.02 Application for a family violence intervention order (1) For the purposes of an application for a family violence intervention order under section 43 or 44 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 family member; (d) if the applicant is not the affected family member— (i) whether the affected family member consents to the making of the application; or (ii) if the affected family member is a child, whether a parent of the child consents to the making of the application; or (iii) if the affected family member 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 family member; (h) the reasons for seeking the order; (i) the nature of the family violence alleged; (j) the conditions on the order sought; r. 4.02 -- 14 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 11 (k) whether a warrant is sought for the arrest of the respondent; (l) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order; (m) details of any previous application or order made, or family violence safety notice issued under the Act; (n) whether the respondent holds— (i) a firearms authority; or (ii) a weapons approval; or (iii) a weapons exemption; (o) whether an affected family member or the respondent has a disability; (p) whether an affected family member 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 Application for associated final order (1) An application for an associated final order under section 76 of the Act must include the following— (a) the name of the applicant; (b) the capacity in which the applicant applies; (c) the names of the parties to the application for the original family violence intervention order, or the original order (as the case requires); r. 4.03 -- 15 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 12 (d) the court reference number for the original application, or the date of the final order (as the case requires); (e) the reasons for seeking the order; (f) the conditions of the order sought; (g) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order. (2) If the application is for an associated final order against an additional respondent, the application must also— (a) give the name, date of birth and address of the additional respondent; and (b) set out how the additional respondent is an associate of the respondent; and (c) if the applicant is not the protected person, state— (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. (3) If the application is for an associated final order to protect an additional applicant, the application must also— (a) state the name and date of birth of each additional applicant; and (b) set out how each additional applicant is an associate of the protected person; and r. 4.03 -- 16 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 13 (c) if the applicant for the associated final order is not the additional applicant— (i) whether the additional applicant consents to the making of the application; or (ii) if the additional applicant is a child, whether a parent of the child consents to the making of the application; or (iii) if the additional applicant has a guardian, whether the guardian consents to the making of the application. 4.04 Application for variation, revocation or extension of a family violence intervention order (1) For the purposes of sections 100 and 106 of the Act, an application for a variation, revocation or extension of a family violence 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; (c) the capacity in which the applicant applies; (d) if the protected person is not the applicant— (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; r. 4.04 -- 17 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 14 (e) whether the applicant requires leave of the Court to make the application; (f) the date of making the family violence intervention order; (g) whether any other persons have become family members of the respondent since the family violence intervention order was made; (h) the reasons for seeking a variation, revocation or extension; (i) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order; (j) if the application is for a variation, the conditions of the variation sought; (k) 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 family violence intervention order, the application must also set out any change in circumstances since the family violence intervention order was made. 4.05 Form of consent (1) This rule applies to an application for a family violence intervention order, or an application to vary revoke or extend an order if— (a) a person is required under section 45 or 108 of the Act to give written consent to the making of the application; or (b) the person making the application is a police officer, unless the affected family member or protected person is— r. 4.05 -- 18 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 15 (i) a child; or (ii) cognitively impaired. (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) if the person who will make the application is a police officer, the police officer's rank, number and station; (c) the name, address, date of birth, occupation and gender of the person providing the consent; (d) if the person providing the consent is not the affected family member or protected person, that person's relationship to the affected family member or protected person; (e) 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— r. 4.06 -- 19 of 42 -- Order 4 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 16 (i) limiting the particulars that may be sought; and (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 (1) An application under the Act may be withdrawn only with the leave of the Court. (2) 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 -- 20 of 42 -- Order 5 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 17 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 85(1) of the Act, by sending the document to that email address. Note Section 85 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 203 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 r. 5.01 -- 21 of 42 -- Order 5 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 18 (c) specify each document served; and (d) indicate whether the certificate has been made on oath, by affidavit or is certified. (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 204 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. r. 5.03 -- 22 of 42 -- Order 5 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 19 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. 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. 5.06 Service interstate If a document is required under the Act to be served on a respondent interstate, the document must be served personally. 5.07 Service in New Zealand If a document is required under the Act to be served on a respondent in New Zealand, the document must be served personally. __________________ r. 5.04 -- 23 of 42 -- Order 6 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 20 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; (b) may prejudice, embarrass or delay the fair hearing of the proceeding; (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 -- 24 of 42 -- Order 7 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 21 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. r. 7.01 -- 25 of 42 -- Order 7 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 22 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— (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. r. 7.02 -- 26 of 42 -- Order 7 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 23 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. (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 Notwithstanding 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 family member 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; r. 7.05 -- 27 of 42 -- Order 7 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 24 (d) if the affected family member 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. 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. 7.09 -- 28 of 42 -- Order 8 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 25 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— r. 8.01 -- 29 of 42 -- Order 8 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 26 (a) the Court grants leave; or (b) the other parties consent; or (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 family member 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 -- 30 of 42 -- Order 9 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 27 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 69(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 -- 31 of 42 -- Order 9 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 28 (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 -- 32 of 42 -- Order 10 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 29 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. __________________ r. 10.01 -- 33 of 42 -- Order 11 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 30 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 may 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 20 or 44 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 (d) of the definition of proper venue in the Children, Youth and Families Act 2005. r. 11.01 -- 34 of 42 -- Order 11 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 31 11.03 Venue of Court for applications under Part 11 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 194(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 -- 35 of 42 -- Order 12 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 32 ORDER 12 REHEARINGS 12.01 Application for rehearing (1) A relevant person (within the meaning of section 122 of the Act) may make an application for rehearing under section 122 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 list the application for hearing and 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 122(4) of the Act. 12.02 Form of application An application under rule 12.01 must be supported by an affidavit. 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 -- 36 of 42 -- Order 13 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 33 ORDER 13 APPEALS 13.01 Particulars to be included in notice of appeal A notice of appeal must include the following information— (a) the name and address of the appellant; (b) the names and addresses of the other parties to the proceeding in which the relevant decision was made; (c) if the appeal relates to a family violence 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, the name and address of that parent; or (ii) if the child did not consent to the order, the name and address of a parent of the child (other than the respondent) with whom the child normally or regularly resides; (d) if the appeal relates to a family violence intervention order for a protected person who has a guardian, the name and address of the guardian; (e) the venue of the Court that made the relevant decision and the date of the relevant decision; (f) the nature of the relevant decision; (g) a brief description of the grounds of appeal. r. 13.01 -- 37 of 42 -- Order 13 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 34 13.02 Stay of relevant decision (1) An application under section 117 of the Act to stay the operation of a relevant decision— (a) must be filed; and (b) may be served by the registrar on the persons listed in paragraphs (b), (c) and (d) of rule 13.01. (2) If there are exceptional circumstances, the Court may grant a stay without serving the application on any other person. __________________ r. 13.02 -- 38 of 42 -- Order 14 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 35 ORDER 14 MISCELLANEOUS 14.01 Risk assessments A risk assessment is confidential and must not be— (a) used in evidence in any proceeding; or (b) disclosed to the respondent or an associate of the respondent to the proceeding to which the risk assessment relates. 14.02 Service and Execution of Process Rules If a process is being served under Division 1 of Part 2 of the Service and Execution Process Act 1992 of the Commonwealth, the notice that is to be attached to the document under section 16 of that Act must include the following particulars— (a) the name, date of birth and gender of the respondent to the application; (b) a description of the application; (c) the name, address and phone number of the issuing Court; (d) the following statements— (i) the person served must read the notice and attached document very carefully, and that if he or she has trouble understanding the notice or document, he or she should seek legal advice as soon as possible; (ii) the service of the process out of Victoria is authorised by the Service and Execution of Process Act 1992 of the Commonwealth; r. 14.01 -- 39 of 42 -- Order 14 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 36 (iii) if a court of a State or Territory other than Victoria is the appropriate Court to determine the application, the person served may be able to have the proceeding stayed by applying to the Magistrates' Court of Victoria; (iv) if the person served thinks the proceeding should be stayed or transferred, he or she should get legal advice as soon as possible; (v) if the person served wishes to contest the application he or she should attend court on the date in the application, or make arrangements for a legal representative to appear on his or her behalf. 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. r. 14.03 -- 40 of 42 -- Order 14 Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 37 Dated: 4 December 2008 PAUL D. GRANT, President of the Children's Court of Victoria PETER T. POWER, Magistrate GREGORY J. Z. LEVINE, Magistrate ═══════════════ r. 14.04 -- 41 of 42 -- Children's Court (Family Violence Protection) Rules 2008 S.R. No. 156/2008 38 ENDNOTES 1 Rule 1.04: S.R. No. 74/2000. Endnotes -- 42 of 42 --