Document ID: chunk:federal_register_of_legislation:C2024A00118:clause:3_102be:p1
Version: federal_register_of_legislation:C2024A00118
Segment Type: clause
Provision Reference: sch 3 cl 102BE (pt 1/2)
Character Range: 109708–112397

102BE  Grounds and considerations for directions
 (1) The court may give a direction under section 102BC or 102BD in relation to evidence, or a document or part of a document, if the court is satisfied that:
 (a) it is likely that harm would or might be caused (directly or indirectly) to the protected confider, or to a child to whom the proceedings relate, if the evidence were adduced or the document or part produced, inspected or copied; and
 (b) the nature and extent of the harm outweighs the desirability of adducing the evidence or producing, inspecting or copying the document or part.
 (2) For the purposes of subsection (1), harm may include, but is not limited to, the following:
 (a) physical harm;
 (b) psychological harm or oppression;
 (c) mental distress;
 (d) a detrimental effect on the other party's capacity to care for a child;
 (e) financial harm.
 (3) If the direction is being made in proceedings under Part VII, the court must regard the best interests of the child as the paramount consideration.
 (4) The court must have regard to the following matters in deciding whether to make the direction:
 (a) in relation to the evidence, or the document or part:
 (i) its probative value in the proceedings; and
 (ii) its importance in the proceedings; and
 (iii) the availability of other evidence or documents, concerning the matters to which the evidence, or the document or part, relates;
 (b) the likely effect of adducing the evidence, or producing, inspecting or copying the document or part, including the likelihood of harm, and the nature and extent of harm, that would or might be caused:
 (i) to the protected confider; or
 (ii) to a child to which the proceedings relate;
 (c) the means available to the court to limit the harm or extent of the harm likely to be caused if the evidence is adduced or the document or part produced, inspected or copied;
 (d) whether the substance of the evidence, or of the document or part, has already been disclosed by the protected confider or any other person;
 (e) the public interest in preserving the confidentiality of protected confidences;
 (f) whether the protected confider opposes the disclosure of the protected confidence or any part of it;
 (g) whether a lawyer is representing the protected confider in relation to the proceedings;
 (h) if the protected confider is a child aged under 18—whether any of the following oppose the disclosure of the protected confidence or any part of it:
 (i) a person who has parental responsibility (within the meaning of Part VII) for the child;
 (ii) an independent children's lawyer who represents the interests of the child in the proceedings.
 (5) Subsection (4) does