Care of Children Amendment Act 2008

1: Title
This Act is the Care of Children Amendment Act 2008.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: One or more Orders in Council may be made appointing different dates for the commencement of different provisions and for different purposes. Section 2 brought into force 18 May 2009 Care of Children Amendment Act 2008 Commencement Order 2009
3: Principal Act amended
This Act amends the Care of Children Act 2004 OIC SR 2009/77 2009-05-18 Care of Children Act 2004 OIC Care of Children Act 2004
4: Lawyer to act for child
1: Section 7(1) , or direct the Registrar of the court to appoint, appoint
2: Section 7(2) or a direction appointment
5: Interpretation
Section 8 counsellor mediator .
6: Agreements between parents and guardians
1: Section 40 Agreements relating to care of children
2: Section 40(1)
a: may request a Registrar of a Family Court to arrange—
i: counselling in respect of a dispute relating to the agreement, under section 46G(1)
ii: mediation in respect of a dispute relating to the agreement, under section 46H(1) .
3: Section 40
1A: A person who, with any other person, is proposing to enter into an agreement of the kind described in section 40(2) may request a Registrar of a Family Court to arrange—
a: counselling in respect of a dispute relating to the proposed agreement, under section 46G(2)
b: mediation in respect of a dispute relating to the proposed agreement, under section 46H(2)
4: Section 40(2) between parents or guardians of a child
7: Cross-heading and sections repealed
1: The cross-heading above section 44
2: Sections 44 to 46
8: New sections 46C to 46ZF and heading inserted
The following sections and heading are inserted after section 46B
46C: Certain children may seek review of parent's or guardian's decision or refusal to give consent
1: A child of or over the age of 16 years who is affected by a decision or by a refusal of consent by a parent or guardian in an important matter may (unless the child is under the guardianship of the court) apply to a Family Court Judge who may, if he or she thinks it reasonable in all the circumstances to do so, review the decision or refusal and make any order in respect of it that he or she thinks fit.
2: A consent given by a Family Court Judge under this section has the same effect as if it had been given by the parent or guardian.
3: This section does not apply where a parent or guardian refuses to give consent to a child's marriage, civil union, or entry into a de facto relationship. In those cases, sections 18 to 20 of the Marriage Act 1955, sections 19 and 20 of the Civil Union Act 2004, and section 46A of this Act, respectively, apply instead. Counselling and mediation to resolve disputes
46D: Duty of lawyers to promote reconciliation and conciliation
1: In all matters in issue between spouses, civil union partners, or de facto partners that are or may become the subject of proceedings under this Act, every lawyer acting for either spouse, civil union partner, or de facto partner must—
a: ensure that the spouse, civil union partner, or de facto partner for whom the lawyer is acting is aware of the facilities that exist for promoting reconciliation and conciliation; and
b: take such further steps as in the opinion of the lawyer may assist in promoting reconciliation or, if reconciliation is not possible, conciliation.
2: Every lawyer who is acting for a spouse, civil union partner, or de facto partner, and who applies to the court to have set down for hearing any matter in issue between the spouses, civil union partners, or de facto partners under this Act, must certify on the application that he or she has carried out his or her responsibilities under subsection (1).
46E: Duty of courts as to reconciliation and conciliation
In all proceedings under this Act between spouses, civil union partners, or de facto partners for a parenting order, the court must—
a: consider the possibility of a reconciliation between the spouses, civil union partners, or de facto partners, or of conciliation between them on any matter in issue; and
b: take such further steps as in its opinion may assist in promoting reconciliation or, if reconciliation is not possible, conciliation.
46F: Disputes between guardians
1: If 2 or more guardians of a child are unable to agree on a matter concerning the exercise of their guardianship, any of them may—
a: request a Registrar of a Family Court to arrange counselling in respect of their dispute; or
b: request a Registrar of a Family Court to arrange mediation in respect of their dispute; or
c: apply to a court for its direction.
2: Where a request has been made to a Registrar under subsection (1)(a), the Registrar must, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a counsellor.
3: Where a request has been made to a Registrar under subsection (1)(b), the Registrar may, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a mediator.
4: An application under subsection (1)(c) must be made to a Family Court unless subsection (5) applies.
5: An application under subsection (1)(c) must be made to a High Court, and the High Court has exclusive jurisdiction to settle the dispute, where—
a: under an order of the High Court, 2 or more persons are guardians of, or have the role of providing day-to-day care for, a child, and that order has not been removed into a Family Court under section 127:
b: the child is under the guardianship of the High Court.
6: On an application under subsection (1)(c), the court may make any order relating to the matter it thinks proper.
46G: Request for counselling by party to agreement or person proposing to enter agreement
1: A party to an agreement of the kind described in section 40(2) may request a Registrar of a Family Court to arrange counselling in respect of a dispute arising from another party to the agreement contravening or appearing to contravene the agreement.
2: A person who, with any other person, is proposing to enter into an agreement of the kind described in section 40(2) may request a Registrar of a Family Court to arrange counselling in respect of a dispute arising in connection with the terms of the proposed agreement.
3: Where a request has been made to a Registrar under subsection (1) or (2), the Registrar must, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a counsellor.
46H: Request for mediation by party to an agreement or person proposing to enter agreement
1: A party to an agreement of the kind described in section 40(2) may request a Registrar of a Family Court to arrange mediation in respect of a dispute arising from another party to the agreement contravening or appearing to contravene the agreement.
2: A person who, with any other person, is proposing to enter into an agreement of the kind described in section 40(2) may request a Registrar of a Family Court to arrange mediation in respect of a dispute arising in connection with the terms of the proposed agreement.
3: Where a request has been made to a Registrar under subsection (1) or (2), the Registrar may, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a mediator.
46I: Counselling where proceedings commenced
1: This section applies on the filing of—
a: an application under section 46F(1)(c)
b: an application under section 48 for a parenting order.
2: A Family Court Judge may, if he or she thinks it expedient to do so, direct the Registrar to arrange for the matter to be referred to a counsellor.
3: On receipt of a direction under subsection (2), the Registrar must arrange for the matter to be referred accordingly.
4: If, not less than 28 days after the date on which the Registrar has arranged for the matter to be referred to a counsellor under subsection (3), either party requests that the application proceed, the proceedings must be continued unless the court otherwise directs.
5: Nothing in subsection (4) prevents the continuation of the proceedings before the expiry of 28 days if the court, upon application to it, so directs.
46J: Mediation where proceedings commenced
1: This section applies on the filing of—
a: an application under section 46F(1)(c)
b: an application under section 48 for a parenting order.
2: A Family Court Judge may, if he or she thinks it expedient to do so, direct the Registrar to arrange for the matter to be referred to a mediator.
3: On receipt of a direction under subsection (2), the Registrar must arrange for the matter to be referred accordingly.
4: If, not less than 42 days after the date on which the Registrar has arranged for the matter to be referred to a mediator under subsection (3), either party requests that the application proceed, the proceedings must be continued unless the court otherwise directs.
5: Nothing in subsection (4) prevents the continuation of the proceedings before the expiry of 42 days if the court, upon application to it, so directs.
46K: Mediation conference
1: This section applies where—
a: an application is made under section 46F(1)(c)
b: an application is made under section 48 for a parenting order.
2: Any party to the proceedings, or a Family Court Judge, may request the Registrar of the court to arrange for a mediation conference to be convened.
3: On receiving a request under subsection (2), the Registrar must—
a: appoint a time and place for the holding of a mediation conference in accordance with section 46L
b: inform each of the parties to the application of the time and place of the mediation conference and request them to attend.
4: The time appointed under subsection (3)(a) must be as soon as is reasonably practicable.
46L: Procedure at mediation conference
1: Each mediation conference is chaired by a Family Court Judge.
2: The objectives of the conference are—
a: to identify the matters in issue between the parties; and
b: to try to obtain agreement between the parties on the resolution of those matters.
3: The Chairperson may from time to time adjourn the conference to a time and place to be appointed by the Chairperson.
4: The Chairperson must record in writing the matters in issue at the conference, showing separately—
a: those matters on which agreement is reached between the parties; and
b: those matters on which no agreement is reached between the parties.
5: The Chairperson must then file his or her written record in the Family Court in which the proceedings are filed.
46M: Attendance at mediation conference
1: In addition to the parties, the following persons may attend a mediation conference:
a: a lawyer representing a party, if the party so requests:
b: a lawyer appointed to act for a child, if an appointment under section 7 has been made:
c: a person who the Chairperson agrees may attend as a support person for a party, if the party so requests.
2: A lawyer attending a mediation conference at the request of a party may assist and advise that party.
3: The Chairperson must agree to a request under subsection (1)(c) unless the Chairperson considers there is a good reason why the named support person should not be permitted to attend.
4: Except to the extent provided in subsection (1), and unless the Chairperson otherwise directs, a mediation conference is held in private.
5: If, during a mediation conference, the Chairperson requests a support person to leave the mediation conference, the support person must do so.
46N: Power of Chairperson to make consent orders at mediation conference
1: The Chairperson presiding at a mediation conference may, by consent of the parties, make any orders that could have been made by a Family Court and that relate to an application by either party for a parenting order.
2: However, where a party has no lawyer, or a party's lawyer is not present at the conference, a consent order must not be made unless that party states expressly that the party does not wish the conference to be adjourned to provide an opportunity for legal advice to be taken.
3: An order made under this section has for all purposes the same effect as if it were made by the consent of the parties in proceedings before a Family Court.
46O: Proceedings after mediation conference
The Family Court Judge who presides over a mediation conference between the parties to an application is entitled to hear any subsequent proceedings between those parties under that application unless in all the circumstances he or she decides, on his or her own motion or on the application of any party,—
a: that it would be inappropriate for him or her to do so; or
b: that there is some other sufficient reason for the application to be heard by another Judge.
46P: Counselling for child on making of parenting order or order relating to guardianship matter
1: The court may direct a child to attend counselling if the circumstances in subsection (2) exist.
2: The circumstances are that—
a: the court is making an order under section 46F(6) or 48(1)
b: the court considers that the child is in exceptional need of assistance in accepting the terms of the order or in adjusting to any changes resulting from the terms of the order.
3: Where a direction is made under this section, the Registrar must arrange for the matter to be referred to a counsellor.
46Q: Request for counselling by party to parenting order
1: A party to a parenting order may request a Registrar of a Family Court to arrange counselling in respect of a dispute arising from another party to the order contravening or appearing to contravene the order.
2: Where a request has been made to a Registrar under subsection (1), the Registrar must, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a counsellor.
46R: Request for mediation by party to parenting order
1: A party to a parenting order may request a Registrar of a Family Court to arrange mediation in respect of a dispute arising from another party to the order contravening or appearing to contravene the order.
2: Where a request has been made to a Registrar under subsection (1), the Registrar may, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a mediator.
46S: Registrar may decline requests for counselling or mediation and recommend instead applications under section 68
1: The Registrar may decline a request under section 46Q(1) or 46R(1)
2: Without limiting the discretion under subsection (1), in exercising that discretion the Registrar must have regard to whether a party to the order has used violence (as defined in section 3(2) of the Domestic Violence Act 1995) against—
a: another party to the order; or
b: a child in the care of another party to the order; or
c: both.
3: In declining a request under subsection (1), the Registrar may recommend that any or all of the parties to the order make an application under section 68.
4: This section overrides sections 46Q and 46R
46T: Reference to counsellor
1: This section applies to a referral to counselling under—
a: section 46F(2)
b: section 46G(3)
c: section 46I(3)
d: section 46Q(2)
2: A counsellor to whom a matter is referred must—
a: arrange to meet either or both of the parties at such times and places (including the home of either party) as the counsellor thinks fit for the purposes of counselling; or
b: request either or both of the parties to attend before the counsellor at a specified time and place for the purposes of counselling.
3: The counsellor may meet with one of the parties, or both of the parties separately, if the counsellor considers a meeting would enable him or her to do any or all of the following:
a: clarify the main issues between the parties:
b: gather any further information that may be relevant to the conduct of the counselling:
c: determine with the parties whether, if the child who is the subject of the matter in issue wishes to do so, the child should attend 1 or more sessions of counselling.
46U: Duty of counsellors
1: A counsellor to whom a matter is referred under section 46F(2), 46G(3), 46I(3), or 46Q(2)
2: After carrying out his or her obligations under subsection (1), the counsellor must provide a report to the Registrar stating whether the parties have resolved the dispute.
3: A report provided under subsection (2) may also state any of the following:
a: details of the understandings reached between the parties:
b: details of the matters remaining in issue between the parties:
c: a recommendation as to the next step or steps to be taken by the parties.
4: The Registrar must give a copy of the counsellor's report to each party or to each party's lawyer.
5: A recommendation made by a counsellor under subsection (3)(c) is not binding on the parties or on the court.
46V: Number of sessions of counselling
The number of sessions of counselling to be carried out in respect of a referral under section 46F(2), 46G(3), 46I(3), 46P(3), 46Q(2), or 46ZA(4)
46W: Counselling fees and expenses
Fees in respect of counselling services carried out under section 46F(2), 46G(3), 46I(3), 46P(3), 46Q(2), or 46ZA(4)
a: may be determined in accordance with regulations made under this Act; and
b: are payable out of public money appropriated by Parliament for the purpose.
46X: Reference to mediator
1: This section applies to a referral to mediation under—
a: section 46F(3)
b: section 46H(3)
c: section 46J(3)
d: section 46R(2)
2: A mediator to whom a matter is referred must—
a: arrange to meet both of the parties, at such times and places (including the home of either party) as the mediator thinks fit for the purpose of mediation; or
b: request both of the parties to attend before the mediator at a specified time and place for the purposes of mediation.
3: Prior to the mediation, the mediator may meet with one of the parties, or both of the parties separately, if the mediator considers a meeting would enable him or her to do any or all of the following:
a: assess whether mediation is appropriate:
b: clarify the main issues between the parties:
c: determine with the parties—
i: who should attend the mediation:
ii: how the mediation should proceed:
d: gather any further information that may be relevant to the conduct of the mediation.
46Y: Duties of mediators
1: A mediator to whom a matter is referred under section 46F(3), 46H(3), 46J(3), or 46R(2)
a: identify the matters in issue between the parties; and
b: facilitate negotiations between the parties in respect of those matters; and
c: assist the parties to reach agreement on the resolution of those matters.
2: After carrying out his or her obligations under subsection (1), the mediator must provide a report to the Registrar stating whether the parties have resolved the dispute.
3: A report provided under subsection (2) may also state any of the following:
a: details of the resolution reached between the parties:
b: details of the matters on which resolution has not been reached between the parties:
c: a recommendation as to the next step or steps to be taken by the parties.
4: The Registrar must give a copy of the mediator's report to each party or to each party's lawyer.
5: A recommendation made by a mediator under subsection (3)(c) is not binding on the parties or on the court.
46Z: Mediation must be held in private
The only persons who may attend mediation before a mediator are as follows:
a: the parties to the mediation; and
b: a lawyer representing a party to the mediation, if the mediator considers that in all the circumstances attendance by a lawyer is appropriate; and
c: a lawyer appointed to act for a child, if an appointment under section 7 has been made; and
d: a child who is the subject of the matter in issue between the parties, if the mediator agrees; and
e: a person who the mediator agrees may attend as a support person for a party, if the party so requests.
46ZA: Child who is attending mediation may request counselling
1: This section applies where, under section 46Z(d)
2: The mediator must discuss with the child whether, prior to the child attending mediation, the child wishes to attend counselling for the purpose of clarifying his or her views on the matter in issue.
3: If the child wishes to attend counselling, the mediator must give notice of this to the Registrar of the Family Court from whom the mediation referral was received.
4: On receiving notice under subsection (3), the Registrar must arrange for the matter to be referred to a counsellor.
46ZB: Mediation may be adjourned
The mediator may from time to time adjourn the mediation.
46ZC: Duration of mediation
The duration of mediation to be carried out under section 46F(3), 46H(3), 46J(3), or 46R(2)
46ZD: Mediation fees and expenses
Fees in respect of mediation carried out under section 46F(3), 46H(3), 46J(3), or 46R(2)
a: may be determined in accordance with regulations made under this Act; and
b: are payable out of public money appropriated by Parliament for the purpose.
46ZE: Power to require attendance for counselling or mediation
1: This section applies where a person fails to comply with—
a: a request under section 46T(2)(b)
b: a request under section 46X(2)(b)
c: a request under section 46K(3)(b)
d: a request under section 68(4)(b) to attend the hearing of an application under section 68.
2: On an application for the purpose or on its own initiative, the court may issue a summons requiring the person to attend before the counsellor or the mediator, or to attend a mediation conference, at a time and place to be specified in the summons.
3: Section 159
46ZF: Privilege
1: No evidence is admissible in any court, or before any person acting judicially, of any information, statement, or admission disclosed or made—
a: to a counsellor or mediator exercising his or her functions under this Part; or
b: in the course of a mediation conference.
2: Nothing in subsection (1) applies to—
a: a report provided by a counsellor under section 46U(2)
b: a report provided by a mediator under section 46Y(2)
c: a record of the matters in issue at the conference made by a Chairperson under section 46L(4)
d: a consent order made under section 46N(1)
3: Except to the extent that it is necessary for a counsellor or mediator to do so in the proper discharge of his or her functions, every counsellor and every mediator commits an offence and is liable on Section 8 amended 1 July 2013 section 413 Criminal Procedure Act 2011
9: Interpretation
Section 58 approved provider approved provider
a: approved—
i: by the chief executive as a Community Service under section 403 of the Children, Young Persons, and Their Families Act 1989; or
ii: by the Secretary; or
iii: by an officer of the court appointed under section 8(2) of the Family Courts Act 1980; and
b: nominated by the court or Registrar for the particular case.
10: Purpose and overview of sections 64 to 80
1: The heading to section 63 46Q, 46R, and sections
2: Section 63(1) 46Q, 46R, and sections
3: Section 63(2) 46Q, 46R, and sections
4: Section 63(2)(a) or mediation counselling
11: Guiding consideration and principles
Section 64(1) sections 68 to 77 sections 46ZE
12: Sections 65 to 67 repealed
Sections 65 to 67
13: Section 69 repealed
Section 69
14: Counsel to assist court
Section 130(1) , or direct the Registrar of the court to appoint, appoint
15: Reports from other persons
1: Section 133
2: If satisfied that it is necessary for the proper disposition of an application, the court may—
a: request a person whom the court considers qualified for the purpose to prepare a written cultural, medical, psychiatric, or psychological report on the child who is the subject of the application; or
b: direct the Registrar of the court to request a person whom the Registrar considers qualified for the purpose to prepare a written cultural, medical, psychiatric, or psychological report on the child who is the subject of the application.
2: Section 133(4) the report a report or to direct the Registrar of the court to request a report
16: Attendance at hearings generally
Section 137(6)
ab: to permit a McKenzie friend to be present; or .
17: New section 139 substituted
Section 139
139: Publication of reports of proceedings
Sections 11B to 11D
a: in a Family Court:
b: in any other court, in which case references in those sections to the Family Court or court must be read as references to that other court.
18: Appeals to High Court
1: Section 143(2) section 44 or section 46 section 46C or 46F
2: Section 143(3) section 44 or section 46 section 46C or 46F
19: Appeal to Court of Appeal
Section 145(1)(a) section 44 or section 46 section 46C or 46F
20: Regulations
Section 147(2)
ba: providing for the determination of the number of sessions of counselling that may be carried out under section 46F(2), 46G(3), 46I(3), 46P(3), 46Q(2), or 46ZA(4)
bb: providing for the determination of the amount of fees and expenses, including minimum and maximum amounts, payable in respect of counselling services carried out under section 46F(2), 46G(3), 46I(3), 46P(3), 46Q(2), or 46ZA(4)
i: the number of sessions of counselling determined to be carried out under section 46V
ii: whether counselling services are to be provided in a specified number of proceedings during a specified period:
bc: making provision for the determination of the duration of mediation that may be carried out under section 46F(3), 46H(3), 46J(3), or 46R(2)
bd: providing for the determination of the amount of fees and expenses, including minimum and maximum amounts, payable in respect of mediation services carried out under section 46F(3), 46H(3), 46J(3), or 46R(2)
i: the duration of the mediation (not exceeding the maximum duration of mediation that may be carried out as determined under section 46ZC
ii: the time spent by the mediator in meeting with the parties prior to mediation; and
iii: the complexity of the matter in issue between the parties.
21: Other Acts not affected
Section 148(2) 66 and 69 and