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News from 2011

Practice Note 5 Issued "Case Management in Care Proceedings"

September 2011: Practice Note 5 was issued by the President of the Children's Court, Judge Marien SC on 2 September 2011. The purpose of this practice note is to ensure that care and protection cases are managed in a consistent and timely manner.

Practice Note 6 Issued "Children's Court Clinic Assessment Applications and Attendance of Authorised Clinicians at ..."

September 2011: Practice Note 6 was issued by the President of the Children's Court, Judge Marien SC on 2 September 2011. The purpose of this practice note is to ensure that applications for assessment orders in the care and protection jurisdiction are dealt with consistently and that where Authorised Clinicians are required to attend court or alternative dispute resolution their attendance is managed efficiently.

Podcast about Alternative Dispute Resolution Procedures in the Children's Court launched

March 2011: The Children's Court has released three audio podcasts relating to the new model of Disptue Resolution Conference and the external mediation pilot in the Bidura Children's Court.

Part 1 - Background information on the two new Alternative Dispute Resolution programs
Part 2 - New model of Dispute Resolution Conference
Part 3 - External mediation pilot (the Bidura pilot) and the independent evaluation of both programs

Alternative Dispute Resolution Procedures in the Children's Court commence on 7 February

February 2011: The Children's Court is implementing the greater use of alternative dispute resolution procedures in care and protection proceedings. This change follows recommendations by The Hon James Wood AO QC in his 2008 report of the Special Commission of Inquiry into Child Protection Services in NSW.

In furtherance of these recommendations, a new model of a dispute resolution conference (DRC) under s. 65 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) is being implemented to replace "preliminary conferences" together with a court referred external mediation pilot at the Bidura Children's Court (under s.65A of the Care Act). The Bidura Pilot applies ONLY to cases at the Bidura Children's Court and cases from other courts should NOT be transferred to Bidura only for the purpose of including the case in the Pilot.

Dispute Resolution Conferences (DRCs)

The new model of DRCs commences on Monday 7 February 2011. The Court has issued Practice Note No. 3 which describes the procedures for conducting DRCs. Below is a brief overview of the internal and external alternative dispute resolution procedures.

DRCs under s 65 will be conducted by Children's Registrars. They will run for a minimum of two hours, and personal attendance will be required by:

  • all parties (except children) and their legal representative (if the party is legally represented)
  • the child's legal representative
  • the Community Services Caseworker, and Casework Manager
  • the Community Services legal representative.

DRCs will be conducted as a conciliation process. In this sense, a DRC will be a process in which the parties, with the assistance of the Children's Registrar, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. Under a conciliation model, the Children's Registrar has an advisory role, but not a determinative one, and might, for instance, express views on what the Court may consider relevant if the matter goes to a hearing.

The Children's Registrar is also responsible for managing the DRC, including setting the ground rules, managing any apparent power imbalance between the participants and ensuring the participants conduct themselves appropriately.

The usual confidentiality arrangements apply to a DRC, pursuant to clause 11 of the Children and Young Persons (Care and Protection) Regulation 2000.

External mediation pilot

The external mediation pilot commenced in the Bidura Children's Court on 9 September 2010. A number of external mediations have now been held.

The external mediation pilot is being managed by Legal Aid NSW. A panel of mediators has been selected from Legal Aid's Family Dispute Resolution Practitioner Panel, and have received specialised training in the care and protection jurisdiction.

Mediations are scheduled for a minimum duration of three hours, and are conducted at Legal Aid's Castlereagh St offices.

Those required to attend an external mediation session are the same as those required to attend a DRC under s65. Participants are also asked to sign a confidentiality agreement.

The Bidura Pilot will run for approximately 12 months.

During this time, cases from Bidura that are suitable for mediation will go to the external mediation pilot, rather than through a DRC.