27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18


Pre-action procedures – assessment at filing



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Pre-action procedures – assessment at filing

Compliance with the pre action procedures is not considered by Family Court registry staff when processing an Initiating Application (Family Law). Compliance is first considered at the initial court event before the Registrar, who can take into account whether parties have fulfilled the pre action procedures when making an order in relation to the procedural requirements and any other matter contained in the Family Law Rules.233 These orders can include orders for the parties to undertake steps required by the pre-action procedures, including undertaking family dispute resolution where appropriate. A judicial officer may also consider the pre action procedures at an interim hearing, if an interim hearing occurs. There is also a financial incentive for parties to comply with the procedures, as the Court may take account of non-compliance when assessing applications for costs.234

Additional filing requirements where parties raise family violence concerns


Additional filing requirements apply where families raise concerns about family violence and/or child abuse.

Section 60J

As discussed above, where parties have filed an Initiating Application without a section 60I certificate and obtained an exemption on the basis of the court being satisfied that there are reasonable grounds to believe that there has been abuse of the child or family violence by one of the parties to the proceedings, the parties are required to satisfy the Court that they have received information from a family counsellor or FDR practitioner about the services and options available in circumstances of abuse and violence.235 As previously noted, this filing requirement does not apply to parties who have been granted an exemption to attending compulsory FDR on grounds unrelated to violence or abuse, for example urgency alone or where there is a risk of child abuse if proceedings before the Court are delayed or there is a risk of family violence by one of the parties.236

The form is not filed with the Initiating Application, but is provided to a Judicial Officer hearing the case at the first Court event before the Judicial Officer.237 As advised on the background information to the Court provided form Acknowledgment - Information from a Family Counsellor or Family Dispute Resolution Practitioner, failure to provide the form can result in delays to the Court proceedings, as proceedings may be adjourned until the acknowledgement is filed.238

A Notice of Child Abuse or Family Violence (Form 4)


Further filing obligations apply to parties raising family violence or child abuse concerns. Section 67Z of the Family Law Act requires parties alleging that a child has been abused or is at risk of abuse to file a notice in the prescribed form, and serve this notice upon the person alleged to have abused the child or from whom the child is at risk of abuse.239 The circumstances in which the obligation will arise are narrow. ‘Abuse’ is defined under the Family Law Act as being limited to sexual abuse and assault that is an offence under State and Territory law.240 The mandatory filing requirement does not apply under the Family Law Act to families that only wish to raise family violence concerns. For these families, filing a notice is optional under the Family Law Act.241

Under the Family Law Rules 2004, the prescribed notice is A Notice of Child Abuse or Family Violence (Form 4).242 As the title of the prescribed notice suggests, the Family Law Rules extend the filing requirements imposed under the Family Law Act where parties raise allegations of child abuse or family violence. A party in the case, an independent children’s lawyer and a person seeking to intervene in a case must file a Form 4 if alleging that:



  • a child has been abused or that there is risk of a child being abused, and/or
  • there has been family violence involving a child or a member of the child’s family or that there is a risk of family violence involving a child or a member of the child’s family.243

The Form 4 can be filed with an Initiating Application or at any subsequent time prior to final orders being made. The Form must be served on all parties to the proceedings,244 in addition to any person who it is alleged has abused the child or from whom the child is at risk of abuse.245

Form 4s are one method by which the Family Court receives information about the alleged child abuse or family violence. Where a Form 4 is filed, the party alleging the violence or abuse, or the risk of same, must also file an affidavit setting out the evidence on which the Form 4 is filed246. The Form contains tick boxes for parties to indicate whether child abuse or family violence, or both, is being alleged. Parties are also asked to include on the form details of the alleged abuse, family violence or risk of same. Part 6 contains the following instructions.

Describe any acts or omissions that you allege constitute abuse. Please include the identity of the alleged abuser(s), if known.

Similar instructions are provided where parties allege the risk of child abuse, family violence or the risk of family violence. The Forms can contain quite detailed information, and potential evidence, of abuse and family violence.

The Form also requires parties to establish a link between the alleged violence or child abuse and the parenting arrangements for the child. For example, question seven at Part E asks parties to note the application/response where the party sought orders relevant to the allegations.247 Accordingly, allegations of family violence or child abuse cannot be made in isolation. Parties are required to establish a nexus between the allegations and the parenting orders, and in their application/response detail the orders the party asserts the Court should make in relation to the parenting arrangements for the child in circumstances of family violence or child abuse.248

Family violence orders


Parties to parenting proceedings are also required to file copies of any family violence orders affecting the child or a member of the child’s family.249 The Family Law Rules provide a process for parties to bring the orders to the Court’s attention. The Rules recognise that parties may have concurrent proceedings before the Family Court and the relevant State or Territory Magistrates Court in which a family violence order may be obtained. The Rules require the parties to file the orders when the parenting proceedings start or, where this is not applicable, as soon as practicable after the order is made.250 The Rule is consistent with section 60CF of the Family Law Act, which requires parties to proceedings to inform the court of any family violence order that applies to the child or members of the child’s family.

The Family Law Rules also cover the scenario in which a copy of the family violence order is not available. In this instance, the party must file a written notice giving details of the order, including when and by which court the order was made. The parties are also to provide an undertaking to file the order within a specified time.251

Where a Form 4 is filed, the duty Registrar has discretion to list the matter in Court. This is further discussed below.

3. URGENT/ INTERIM HEARINGS

Urgent, or interim, hearings refer to hearings in which parenting orders may be made on an interim basis prior to hearings for final orders. There are three primary categories of circumstances in which parties may apply for interim parenting orders.

Application for interim orders by parties


The first is in response to parties’ application for interim orders. A party may apply for interim orders where the party has made an application for final orders in the proceedings to which the interim orders relate, and in circumstances where final orders have not been made in the proceedings.252 Unless an exception applies, the application must also not be filed unless the party seeking the orders has made a reasonable and genuine attempt to settle the issue to which the interim orders relate.253 The exceptions include where the application for interim orders is necessary due to allegations of family violence or child abuse.

Where an interim order is sought when filing an Application for final orders an affidavit is required to be filed in support of the interim application only. The respondent would generally respond to the interim application as part of the Response and also file an affidavit.254 Where an interim order is sought during proceedings at some time after filing of the Initiating Application, the applicant will file an Application in a case (with the required affidavit). This form may only be filed where there is an Initiating Application on foot. The respondent files a Response to an application in a case,255 accompanied by an affidavit.256 A Response must be filed and served no later than seven days before the interim hearing.257 A reply to a Response must be filed and served as soon as possible after the Response is received.258

The affidavits form the evidence that the parties provide in support of, or in opposition to, the orders sought. There are limits on the number of affidavits that may be submitted, with the number of affidavits restricted to one per party and one per witness.259 Where a Response is filed, the Applicant may also file a subsequent affidavit in reply to the Response.260 All affidavits must be filed at least two days before the interim hearings.261

Without notice to the respondent


The second circumstance under which parties may apply for interim orders is one avenue through which the Family Court may give appropriate attention to family violence and child abuse concerns. A party may seek interim orders without notice to other parties to the proceedings.262 The circumstances in which this may occur include where there are family violence and child abuse concerns. The ability to bring forward the application for interim orders gives due regard to the need to protect the safety of at risk children and their families. The party seeking the interim orders is to provide the court details of any family violence or child abuse concerns, and of the nature of the damage or harm that may result if the order is not made.263 Where seeking an interim order without notice to the other party, the applicant must also inform the Court of:

  • whether there has been a previous case between the parties and, if so, the nature of the case

  • the particulars of any orders currently in force between the parties

  • whether there has been a breach of a previous order by either party to the case

  • whether the respondent or the respondent’s lawyer has been told of the intention to make the application

  • capacity of the applicant to give an undertaking as to damages

  • why the order must be urgently made, and

  • the last known address or address for service of the other party.

The party that may not receive notice of the application for interim orders is also considered by the Family Court. The applicant is required to inform the Court whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made.264

Where made without notice, the restricted operation of the interim orders is to be noted on the orders. The order must be expressed to apply only until a time specified in the order, or if the hearing of the application is adjourned, until the date of the hearing.265

Interim hearings and Form 4s


Third, an interim hearing may occur where a Form 4 has been filed even where no application for interim orders has been sought.266 Where a Form 4 is filed with an Initiating Application (Family Law), the matter will be referred to a Registrar and if considered necessary may be listed by the Registrar before a Judge for an interim hearing. The Family Court’s Family Violence Best Practice Principles direct that the interim hearing is to occur no later than six weeks from the date of the initial procedural hearing.267 As also stated in the Family Violence Best Practice Principles, where a Form 4 is filed the matter will be promptly assessed by the duty Registrar, to determine if an interim hearing, or another form of hearing such as a procedural or directions hearing, is appropriate to make orders to enable evidence to be gathered about the allegation or for the protection of the parties.268 This will occur even where parties have not applied for interim orders, and is consistent with the requirements of the Family Law Act where a Form 4 is filed.269 In a practical sense where a party files a Form 4, the Registrar may list the application for interim order for hearing and direct the party to file the relevant form and affidavits in support.

Factors the Family Court considers when assessing applications for interim orders

Family violence concerns are central to the Family Court’s response to interim orders, regardless of under which limb the application was made. The Family Law Rules direct that the Court may consider, in response to applications for interim orders, the best interests of the child as set out under section 60CC of the Family Law Act.270 In addition, the Court may take into account whether the order(s) is necessary for reasons of hardship, family violence, and prejudice to the parties or the children.271

The Family Violence Best Practice Principles contain specific matters that the Family Court is to consider when determining whether to make interim orders in circumstances in which family violence or child abuse concerns have been raised. The matters are as follows.

(i) The likely risk of harm to the child, whether physical and/or emotional, if an interim application for a child to spend time with a parent against whom allegations have been made is granted or refused.

(ii) If the Court decides that it is in the interests of the child to spend time or communicate with a parent against whom allegations have been made, what directions are required to give effect to such order(s), and in particular:



  • whether time spent with the other parent should be supervised;

  • if so, whether or not that supervision should occur at a child contact centre;

  • if not, where the time spent should take place and who should supervise it;

  • times for the visit and places of exchange;

  • who should be permitted to attend the appointment with the parent;

  • who will bear the costs of the supervision, and in particular;
  • what other arrangements should be put in place (including an order under section 60CG(2)) to secure the safety of the child and the parent with whom the child is living before, during and after any time spent with the other parent.272


However, under the Rules there is only a limited time in which the Court may consider these factors. Interim hearings are not to exceed two hours in duration.273 The nature of the evidence before the court is also limited, with the number of affidavits restricted to one affidavit per party, and one affidavit per witness provided the evidence is relevant and cannot by given by the party.274 Cross-examination is not permitted except with the leave of Court.275 However, it should be noted that under Rule 1.14 the Court may extend a time fixed under the Rules. Rule 1.12 also allows the Court to dispense with the Rules.

Interim hearings and evidence gathering


The Principles also direct the Court to give regard to other means of ascertaining the risk that a parent may pose to a child. In this regard, the Principles note that the Court may be assisted to ascertain the probable risk of harm from a proposed parenting order, by referring one or both of the parenting to a post-separation parenting program, or other appropriate courses, programs or services. The Principles infer that the information that this referral generates could then be used by the Court when assessing possible final orders.276

Interim hearings in the absence of the parties

Interim hearings may occur in the absence of the parties, in response to the applicant’s request for same.277 If the respondent objects to this request, the respondent must notify the court and the other party, in writing, of the objection no later than seven days prior to the date fixed for the hearing.278 The notice is to comply with the formatting requirements for documents filed with the Family Court, under Rule 24.01 of the Family Law Rules. Where the respondent objects, both parties are to attend on the first court date for the application.279 Even where both parties consent to the interim hearing occurring in their absence, the Court may determine that the parties are to be present at the interim hearing.280

Where the interim hearing occurs in the parties’ absence, submissions are to be made on the papers, filed no later than two days before the date of the hearing.281

Family Dispute Resolution – link to interim hearings


Applications for interim orders may also trigger the parties’ referral out of the Family Court process. One matter the Family Court may consider when determining the application for interim orders is ‘whether the parties would benefit from participating in one of the dispute resolution methods’.282

Abridgement of time for interim hearings


The Family Law Rules aim for interim hearings to occur as near as practicable to 28 days after the application for interim orders was filed.283

Under subrule 5.05(4), parties may apply for the hearing date to be brought forward on the grounds of urgency. ‘Urgency’ is not defined by this subrule or in Rule 5.05 as a whole, nor is it defined in the Dictionary to the Family Law Rules. However, paragraph 5.05(4)(a) indicates that the Court may consider the safety of the family when assessing whether a matter is urgent. Under paragraph 5.05(4)(a), an earlier date for an interim hearing may be fixed if the duty Registrar is satisfied that ‘there is a harm that will be avoided, remedied or mitigated by hearing the application earlier.’ Where an earlier date has been appointed to the interim hearing, procedural matters in relation to final orders must also be considered at this hearing.284 If the Court considers that the listing for an urgent hearing is unreasonable, costs may be ordered against the party who sought the urgent hearing.


4. INITIAL PROCEDURAL HEARING

Where an urgent hearing is not held, following filing a parenting case is first listed before a Registrar for a procedural hearing attended by all parties.285 The Registrar has a central role in the procedural hearing. Their function is to assess the case, make recommendations about the future conduct of the case, determine whether the case is suitable to remain in the Family Court or should be transferred to another court exercising jurisdiction under the Act, and enable the parties to attempt to resolve the case, or any part of the case, by agreement. The functions of the Registrar indicate the objectives underlying the holding of procedural hearings. The Rules indicate that a purpose of the procedural hearings is to promote settlement. A second purpose is to provide the Family Court a structured time in which to determine whether to select the option to transfer the matter to the Federal Magistrates Court.

Where settlement is not reached, orders can be made at the procedural hearing about the future conduct of the case.286 The orders may include referral of the parties to the Child Responsive Program.287


5. CHILD RESPONSIVE PROGRAM


The following description of the Child Responsive Program is based on information provided by Family Consultants with the Family Court, the Family Court’s brochure The Child Responsive Program, Margaret Harrison’s report Finding A Better Way, April 2007, and the Jennifer E. McIntosh and Caroline Long report The Child Responsive Program, operating within the Less Adversarial Trial: A follow up study of parent and child outcomes, Report to the Family Court of Australia, July 2007.

The Family Court has authority to refer parties to attend an appointment, or a series of appointments with social scientists or psychologists appointed under the Act288, known as Family Consultants.289 Under the Family Law Rules, this process has been extended into the ‘Child Responsive Program’.

It is usual practice for parties to be ordered to attend the Child Responsive Program (the Program) prior to the Less Adversarial Trial. The Program is a four stage process of meetings between families and Family Consultants. The Program aims to direct parents to focus on the needs of their children when determining parenting arrangements.290 One Family Consultant is assigned to a case for its duration.291

The Program starts with parents separately viewing a DVD such as ‘Consider the Children’ (sometimes the family has already seen a particular DVD). Following this, parents move into the Intake Assessment stage, in which the Family Consultant will meet separately with each parent to assess the current difficulties with parenting arrangements and determine the extent to which it is appropriate for the children to participate in the Program.

The Family Consultant will also screen for family violence. This can include reading particular documents in the court file as is directed prior to the initial meeting with the parents, to attempt to identify issues related to family violence. In addition, the Family Consultants go through a questionnaire that includes specific reference to family violence issues. When violence is identified, and there are concerns about on-going risk, other tools such as the Spousal Assault Risk Assessment Guide (SARA),292 can be used by the Family Consultant. The SARA has been described as ‘a quality control checklist that determines the extent to which [the professionals] have assessed risk factors of crucial predictive importance’.293

Where significant family violence concerns are identified, the Family Consultants will take the appropriate protective action for the kind of family violence that has been identified. This can include by-passing the second stage of the Program, to move directly to preparing the Children and Parents Issues Assessment.

Where the family violence relates to children, the Family Consultants will notify the relevant child welfare authorities. Where the family violence is against the spouse, the Family Consultants will prepare a security incident form and institute a safety plan to operate while the family attends court. However, other than arranging a safety plan, there are no formal protocols for the Family Consultants to follow to address the needs of alleged adult victims of violence.

Stage two of the process is known as ‘Child and Family Meetings’. As the title indicates, it is at this stage of the process that the Family Consultant will, where appropriate, meet with the children to provide the children an opportunity to express their views about the family and parenting arrangements. The parents do not attend the children’s meeting with the Family Consultant. Where children disclose past family violence or child abuse, the disclosures can trigger the Family Consultants’ mandatory reporting obligations to inform relevant child welfare authorities of any reasonable grounds for suspecting that a child has been abused or is at risk of being abused.294

Following this, the Family Consultant will provide feedback to the parents about the children’s perspectives. The feedback can be provided to both parents jointly, or through individual meetings. To minimise the risk of harm to the child, feedback is focused on the child’s overall experiences rather than their views of either parent.

For the third stage, the Family Consultant prepares the ‘Children and Parents Issues Assessment’; a written report detailing the main issues affecting the family, the feedback provided to the parents and any outcomes of this. The Children and Parents Issues Assessment will be made available to the parents and their legal representatives. A copy will also be placed on the Court file, to be available to the Judicial Officer in the case. While a copy is placed on the Court file, it is not submitted as evidence in proceedings. However, evidence of anything said or any admissions made during the appointments with the Family Consultant are admissible in family law proceedings.295

The fourth and final stage of the Program is the Selective Settlement Meeting. The meeting is an optional conciliation session between the family, their legal representatives and the Family Consultant. As its title suggests, both parties, in consultation with the Family Consultant, must elect to participate in the meeting for it to occur. The meetings are directed towards reaching agreement about which parenting arrangements support the best outcomes for the children.296 Agreements reached during the meeting can be formalised through consent orders.

6. Procedural hearing after Child Responsive Program


The Child Responsive Program is followed by a procedural hearing conducted by a Registrar (usually the docket Registrar).297 The hearing is to occur ‘as soon as practicable’ after the conclusion of the Program,298 and may be conducted by telephone or other means of electronic communication. The purpose of the hearings it to make consent orders to implement any agreements reached through the Child Responsive Program, or to manage the case if settlement was not reached.

There are a number of procedural orders which may be considered by the Registrar for case management. These may include diverting the parties from the Court hearing pathway through ordering the parties to attend FDR, family counseling or other family services where appropriate to the issues.

The parties’ obligations of full and frank disclosure, which began during the pre action procedures and continue throughout the proceedings, are also revisited at the procedural hearing. Parties are required to file an undertaking noting that the parties:


  • are aware of their obligations to provide full and frank disclosure of all information relevant to the issues in the case, in a timely manner

  • have, to the best of their knowledge and ability, complied with, and will continue to comply with, the duty of disclosure, and

  • acknowledge that a breach of the undertaking may be contempt of court.299

The undertaking must be filed 28 days before the first day before the Judge.300 A Registrar may make an order for this undertaking to be filed, at the procedural hearing.301

The Registrar may also allocate a date for the first day of the hearing,302 order parties to pay a hearing fee,303 and order parties to complete a parenting questionnaire.304


7. INDEPENDENT CHILDREN’S LAWYER


An Independent Children’s Lawyer, previously known as a Separate Representative, may be appointed to independently represent the best interests of the children to the proceedings.305 The role of the Independent Children’s Lawyer (ICL) is to present to the Court what the ICL believes to be in the best interest of the children.306 For this purpose, the ICL may apply to the Court for an order that the child be available for examination for the purpose of preparing a report about the child for the ICL’s use.307 The Family Violence Best Practice Principles direct the Court to consider whether to make this order, where A Notice of Child Abuse or Family Violence (Form 4) has been filed.308

The ICL is not a party to the case. However, parties to the proceedings are to treat the ICL as a party.309 For example, parties are required to provide a copy of any documents filed and served on parties to the proceedings.310

An ICL may be appointed on application of the child or children to the proceedings, an organisation concerned with the welfare of the child or children or any other person including a party to the proceedings.311 The Court may also appoint an Independent Children’s Lawyer on its own initiative.312 The Family Law Rules require parties seeking an Independent Children’s Lawyer to be appointed to file an Application in a Case,313 or apply for the appointment orally during proceedings before the Court.314 The duty Judicial Officer may appoint the ICL. Alternatively, this power is also delegated under the Family Law Rules to Deputy Registrars.315 The Rules relating to the procedural hearing following the Child Responsive Program provide that the person conducting the event may consider whether to order an ICL be appointed in the case.316

The Rules consider how the costs of the ICL are to be managed. Under the Rules, the Court may request that the costs of appointing an ICL be borne by the relevant Legal Aid Commission.317 The Court may also order the ICL’s costs to be met by a party to the proceedings.318 Subrule 16.08(4) requires the ICL to provide parties a statement of the actual costs the ICL has occurred up to and including LAT, immediately prior to the first day of the final stage of the trial.

8. PARENTING QUESTIONNAIRE


All parties to parenting proceedings must complete a parenting questionnaire, and file a completed copy on the other parties to the proceedings, at least 28 days before the first date before the Judge.319 The parenting questionnaire is available on the Family Court of Australia’s website.320

The questionnaire is a means by which the Court obtains evidence of the family’s background and current circumstances and can be admitted to evidence during a trial. The questions cover occupation, living arrangements, medical history, family violence and child abuse concerns, alcohol and drug relate issues, and the current parenting arrangements. The questions posed attempt to create a picture of the realities facing the parties, drilling down into details such as time taken to travel to work, the children’s relationship with other relatives, living arrangements for the children, the means and the time taken for the children to travel to school, and the extent and means of communication between the parties to the proceedings.


9. COMPLIANCE CHECK


The compliance check occurs not less than 14 days before the first date of the hearing before the judicial officer. Its purpose is to:

  • check that all procedural orders have been complied with, and

  • consider any new issues that may have arisen since the last court event and their effect on the listing of the matter for the first day before the Judicial Officer.321

It is usual practice for the parties to attend this by electronic communication.322

10. APPLICATIONS TO ATTEND DAY ONE OF THE HEARING BEFORE THE JUDICIAL OFFICER BY ELECTRONIC COMMUNICATION


Parties are required to attend the first day of the hearing before the judicial officer in person.323 If legally represented, parties must also ensure that their legal representatives attend in person.324 The party that attends ‘may seek the orders sought in that party’s application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.’325 Were neither party to attend in person the Court may dismiss the case.326

However, parties may apply to attend day one of the Less Adversarial Trial (LAT), and any other Court event that is judge managed, by electronic communication.327 The application must be made at least 28 days before day one of LAT, although the Court has discretion to shorten or extend this time. Parties are to file with the application an affidavit containing details of the facts relied on in support of the application. These facts are to include information about the kind of electronic communication to be used, the place from which the party proposes to give or adduce the evidence, or make the submission, and the facilities at this place that will enable the Court to see or hear the party.328 A party may also apply for a witness to attend by electronic communication.329 The application will be listed before the Judicial Officer, for his or her determination.

Parties are not required to indicate whether family violence or child abuse concerns are a factor in seeking to attend by electronic communicate. However, consultations with the Family Court noted that, as part of a safety plan, the Court may arrange for parties to appear separately or by electronic communication. This reflects advice given to parents on Family Court’s webpage ‘Family Court of Australia pathways’, which advises parents as follows.

If family violence is raised as an issue, steps will be taken to deal with it when it is raised as quickly as possible. If at the trial stage you are still concerned about family violence, it is important that this be raised again when you first appear before the judge. This allows the judge to decide how the case should proceed to keep parties safe and able to participate fully in the trial. This might involve a person being heard by video or teleconference.330

Such advice is also available in Family Court brochures, including the brochure Less Adversarial Trial.331

11. EXPEDITED HEARINGS


The Family Law Rules provide for parties to apply for an abridgement or extension of time, including dates for hearings.332 In addition to this general rule, parties may apply for expedited hearings where family violence or child abuse concerns are raised.

Filing a Form 4 may add to the weight of safety concerns when applying for an expedited court date. According to the Family Violence Best Practice Principles, where an abridgement of time is granted and a Form 4 has been filed in the case, the Initial Procedural hearing is to occur no later than six weeks from the time the abridgement was granted.333 The Principles do not direct the Court to consider timeframes for expedited final hearings.

However, Rule 12.10A sets out the factors the court may take into account when considering whether to expedite the date for the first day before the Judge. The factors include direct references to factors that can affect the safety of parties to the proceedings. These are:


  • whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case334

  • whether the continuation of interim orders is causing the applicant or a child hardship335

  • whether the case involves allegations of child sexual or other abuse,336 and
  • whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.337

12. DAY ONE OF THE LESS ADVERSARIAL TRIAL


Judicial Officers are required to be an active participant in hearings for parenting proceedings.338 The Family Law Rules build on this requirement, to provide specific steps for the Judge conducting the first day of LAT.339 The Family Law Rules assign a specific purpose to the first day. During day one the Judge must discuss and identify issues in dispute and the orders sought, with the parties and their legal representatives.340 In doing so, the Judge has broad discretion to determine the nature of the evidence that may be adduced, the witnesses that may be called, the subpoenas that may be issued, and to determine the time that will be allocated to taking evidence in chief and to cross examination.341 This reflects the Court’s general duties and powers under the Family Law Act to manage the presentation of evidence throughout the proceedings.342

The Judge is also in the ordinary course to hear and determine any outstanding interlocutory issues or interim applications or to make appropriate arrangements for the determination of those applications.343

The first day of the Less Adversarial Trial builds on the preparatory work conducted through the pre-trial case management events. The pre-trial events have established an evidence base from which the Judge can draw. For example, pursuant to the Family Law Act, the Court may incorporate Family Consultants into the trial.344 The Family Law Rules establish a structure for this participation. Under the Rules, the Family Consultant may give evidence at the first day before the judge.345 Unless the parties consent otherwise, Family Consultants provide the court sworn evidence.346 The evidence that the Family Consultant provided will be based on the Children and Parents Issues Assessment.347

The first day also draws on the pre-trial process of completing the Parenting Questionnaire. As advised on the cover page to the parenting questionnaire, the facts contained in the parenting questionnaire are adopted as evidence on the first day before the Judge.348

It is at this point, and at any other day of the trial, that the family may also be referred out of the Family Court system. Under the Family Law Act, the Court has a general duty during the Less Adversarial Trial to encourage parties to use FDR or family counseling.349 It should be noted that the legislation does not assign the Court the duty to refer parties to FDR or family counseling if the Courts thinks that FDR or family counseling is inappropriate.

First day before the Judge – family violence and child abuse allegations


The Family Violence Best Practice Principles (the Principles) also direct the Court to have particular regard to what evidence about family violence should be gathered, for cases in which a Form 4 has been filed. The Principles note that on the first day of hearing it would ‘ordinarily be desirable’ for the Family Court to consider ‘whether or not it would be appropriate to hear the evidence about the disputed allegations of family violence or abuse or risk of family violence,350 and whether to promptly consider the allegations by making a specific judgment about the allegations on the first day of hearing.351

13. FAMILY REPORT

At the first day of the hearing, the Judge may order a family report be prepared.352. Part A of the Family Violence Best Practice Principles (the Principles) includes a checklist for Registrars and Judicial Officers to consider in response to a Form 4 being filed. The checklist includes, at item xix, consideration of whether a Family Report should be ordered under section 62G of the Family Law Act.353

The family report is to address the matters that the Courts considers desirable.354 The Family Violence Best Practice Principles contain a list of possible matters that the Court may wish to direct that the family report cover, in circumstances where a Form 4 has been filed.355 In relation to family violence, the matters include:


  • specifically addressing the issue of family violence or abuse or the risk of family violence or abuse.

  • an assessment of the harm the children have suffered or are at risk of suffering if the orders sought are made or not made

  • whether the safety of the child and the parent alleging the family violence or abuse can be secured before, during or after any time that the child spends with the parent, or another person, against whom the allegations are made, and

  • the views of the child or children in light of the allegations of family violence or abuse or the risk of same.

The Principles also recommend the Court to consider making further directions about the content of the Family Report, in circumstances where the family violence or abuse has been acknowledged (presumably by the alleged perpetrator) or established. The order may request that the writer report on:

  • the impact of the family violence or abuse

  • whether or not the parent acknowledges the family violence or abuse has occurred

  • whether or not the parent accepts some or all responsibility for the family violence or abuse

  • whether and the extent to which the parent accepts that the family violence or abuse was inappropriate

  • whether or not the parent has participated or is participating in any program, course or other

  • activity to address the factors contributing towards his or her violent or abusive behaviour

  • whether or not there is a need for the child and the other parent to receive counselling or other form of treatment as a result of the family violence or abuse

  • whether the parent has expressed regret and shown some understanding of the impact of their behaviour on the other parent in the past and currently, and
  • whether there are any indications that a parent who has behaved violently or abusively and who is seeking to spend time with the child can reliably sustain that arrangement.


The Principles also intersect with shared parenting. The Principles note that the Court may consider referring to the family report writer the issue of the impact for the child of spending time with the alleged perpetrator. The factors that the Principles note may be part of the family report in this regard are as follows.

  • Whether or not it would be appropriate for the presumption of equal shared parental responsibility to apply.

  • Whether or not there would be benefits, and the nature of those benefits, if the child spent time with the parent against whom the allegations are made.

  • Where equal time or substantial and significant time is sought, assess whether the safety of the child can be secured during the time spent with the parent against whom the allegations are made.

  • Where equal time or substantial and significant time is sought, assess whether the safety of the child can be secured during the time spent with the person against whom the allegations are made, where that person is not the child’s parent.

Once prepared, the Court may determine to give a copy of the report to each party, or their legal representatives, and to any ICL appointed in the proceedings.356 Alternatively, the Court may order that the report not be released to a person or that access to the report be restricted.357

The family report may be adduced as evidence in proceedings.358 The Family Law Rules permit the Court to allow oral examination of the family report writer during proceedings.359


Family reports prepared by Family Consultants

The Family Court aims that the family report will be prepared by the Family Consultant who worked with the family through the Child Responsive Program.360 This continuity assists with identifying the needs of the family, and any risks to the safety, such as family violence. From previous interactions with the family, the Family Consultant will be familiar with the needs and dynamics of the particular family. Preparing the family report provides the Family Consultant a subsequent opportunity to screen and assess the family, and through this identify risks.

The Family Court may ‘direct a Family Consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable’.361 Where the issues are limited, the family reports are known as ‘Specific Issues Reports’. Alternatively, Family Consultants may be asked to prepare ‘Family Assessment Reports’, that is reports that address the family’s relationship dynamics and the range of issues that have been identified as potentially affecting the family.362

The Family Law Act also authorises the Court to appoint a Family Consultant at any time during the proceedings.363 In addition to preparing the family report, the Family Consultant may be appointed to exercise in the proceedings any of their other functions under the Family Law Act. The functions are:


  • assisting and advising people involved in the proceedings

  • assisting and advising courts, and giving evidence, in relation to the proceedings

  • helping people involved in the proceedings to resolve disputes that are the subject of the proceedings, and

  • advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings. 364

14. EXPERTS REPORT

The Family Law Act authorises the Family Court to appoint an expert to prepare evidence in relation to the family.365 The Court may determine the manner in which the evidence is to be presented.366 The Family Law Rules provide that where a single expert witness is appointed, the expert witness must prepare an expert’s report.367 Where the Court orders an expert’s report be prepared, the completed report is to be delivered to the Registry Manager of the Family Court.368

The parties may have input into which person is appointed as the expert witness.369 The Court may order the parties to confer to agree upon the person to be appointed.370 In the absence of agreement, the parties are to provide the Court a list of possible experts that may be appointed.371 The Family Violence Best Practice Principles (the Principles) give further directions to the Family Court when considering whether to order an experts report, where a Form 4 has been filed. The Principles direct the Court to give attention to the qualifications of the proposed expert, to ‘satisfy itself that the expert witness has appropriate qualifications and experience to assess the impact and effects (both short and long term) of family violence or abuse, or being exposed to the risk of family violence or abuse, on the children and any party to the proceedings.’372

The matters that the expert is to consider are at the discretion of the Family Court.373 The Principles also contain matters that the Court may wish to order be included in the expert’s report. The matters are those that the Court may consider when ordering a family report be prepared.374

Separate to a Court ordered expert report, parties to proceedings may arrange for an expert’s report to be prepared. The Rules provide procedures where all parties to the proceedings agree to jointly appoint a single expert witness to prepare an expert’s report.375 The evidence that the single expert provides must be contained to a significant issue in dispute.376 Where appointed by the parties, any report prepared by the expert must be delivered to the parties at the same time.377 The report may be adduced as evidence without first obtaining the permission of the Court.378

A party may also seek to appoint an expert witness, or tender an expert witness report, in absence of agreement between the parties or a court order.379 Where permission is granted, the party that ordered the report is required to disclose a copy of an expert’s report at least two days prior to day one of the Less Adversarial Trial.380

15. CONTINUATION OF LESS ADVERSARIAL TRIAL


There may be delay between the first day of the Less Adversarial Trial and subsequent trial days. The Family Law Act does not specify the timeframes for the conduct of the Less Adversarial Trial. The second and subsequent days of the trial will occur on days allocated by the Family Court at its discretion.381 The trial will be continued from the first day for the purposes of:

  • further identifying issues for which evidence is required

  • making any necessary procedural orders about filing and exchanging all remaining evidence

  • allocating any other dates for the continuation of the trial, and

  • allocating dates for the final stage of the trial.382

16. FINAL STAGE OF THE TRIAL


Under the Family Law Rules, the purpose of the final stage of the Less Adversarial Trial is to hear the remainder of the evidence, receive submissions and make a determination. The Family Law Rules are not prescriptive about the management of the later stages of the Less Adversarial Trial. This is in keeping with the principle that trials are to be run at the discretion of the individual Judge.

However, the Family Violence Best Practice Principles contain guidance for Judicial Officers when considering final orders in circumstance where a Form 4 has been filed. The Principles note that it may be of assistance to Judicial Officers to take into account the extent to which the allegations of family violence are consistent with the principle features of ‘controlling family violence’, including but not limited to that the violent party is alleged to have:


  • used coercion and threats


  • used intimidation

  • used emotional abuse

  • used tactics to isolate the other party

  • minimised and/or denied the abuse

  • blamed the other party for the violent behaviour

  • used the children as tools, and

  • denied the other party access to fiscal resources, and

  • whether it is appropriate to make findings of fact as to the nature and degree of the family violence or abuse which is established on the balance of probabilities and its effect on the child and the parent with whom the child is living.383

The Principles also contain matters that the Judicial Officer may wish to take into account where the Court has made findings of family violence or abuse, or an unacceptable risk of same.384 The Principles also provide matters that the Judicial Officer may wish the consider where the Court is contemplating making orders for a child to spend time with a parent against whom findings have been made that allegations of family violence or abuse are proven, or against whom findings have been made that the parent presents an unacceptable risk of behaving violently or abusively.385

Follow up with the Family Consultant – section 65L

Where the court considers the order to be in the best interest of the child, the court may order that the Family Consultant continue with the family once an order has been made.386 This order can only be made where the Court considers that the order is in the best interests of the child.387 It is unclear how the Family Consultant is to carry out the function of supervising or assisting families to comply with the parenting orders. The length of time that the order may be operative is also not specified in the legislation, and would presumably be a matter to be included in the orders.

In addition, follow up with a Family Consultant may occur as part of the Child Responsive Program. As part of the Post-orders Review and Referral Meetings, the Family Consultant and the family may review the orders and determine strategies for implementing the orders. The Family Consultant may also refer the family to community services for additional assistance.388

Post order programs


Where the court makes a parenting order, the Family Law Act requires the court to inform the parties of counselling services, family dispute resolution services and other courses or programs that can assist the family in adjusting to the terms of the order.389

Before informing the parties of the services, the Family Court is to confer with the Family Consultant about which services are appropriate to the family.390 The appointment of one Family Consultant for the duration of the case would assist the Court to fulfil this requirement.

The Court’s power to order families to attend a post-separation parenting program may be exercised prior to making final orders. For example, the Family Violence Best Practice Principles note that the Court may consider making orders for parties to attend the programs as part of interim orders.391 Parties may be ordered to attend a post order program as part of making interim orders.

17. CONSENT ORDERS


Parties may apply for consent orders at various stages of the process through the Family Court. Consent orders may be made without the family initiating parenting proceedings. Alternatively, consent orders may be applied for at any stage once parenting proceedings have commenced.

Application for consent orders prior to commencing parenting proceedings.

Separate procedural requirements apply to parties who apply for parenting orders by consent without first commencing parenting proceedings. Such families are not required to attempt FDR.392 The Family Law Rules also outline different procedural requirements for these matters.393 Where proceedings have not commenced, parties may file an Application for Consent Orders.394 The Application must include draft consent orders that are clearly set out, note that they are made by consent of both parties, and are signed by each of the parties.395 To assist with meeting the requirements in the Rules, the Family Court provides families the Application for Consent Orders Kit and a supplementary pro forma consent orders kit, which includes a sample cover sheet, a sample first page, the recommended format of the consent orders and a sample certification of consent orders.396

In practice, Registrars generally assess the Applications for Consent Orders.397 The Application for Consent Orders Kit advises parents to consider the nature and effect of the proposed orders, including referring parties to the relevant legislative provisions in relation to parenting arrangements under the Family Law Act. The Kit also highlights to parents that the making of the proposed orders by the Court is not automatic, as the Court will determine whether the proposed orders are proper.398 This reflects Rule 10.17 of the Family Law Rules, which notes that parties must satisfy the Court as to the reasons why the proposed orders should be made.

Family violence and child abuse concerns


Rule 10.15A and the Family Violence Best Practice Principles (discussed below) do not apply where parties apply for consent orders without having commenced proceedings. The parties are not obligated to satisfy the court that the orders do not impose a risk of abuse for the children. However if the proposed consent orders are inconsistent with a current family violence order, the Application for Consent Orders Kit advises that the Family Court cannot make the orders unless parenting proceedings are instituted.399

Application for consent orders where parenting proceedings have commenced

Where proceedings have commenced, parties may apply for consent orders either orally, during a hearing or a trial, or by lodging a draft consent order.400 In practice an oral application for consent orders is generally supported by a written draft consent order signed by the parties and/or their legal representatives. Where an Independent Children’s Lawyer has been appointed to the case, the proposed orders will not be made unless the Independent Children’s Lawyer has, in addition to the other parties, signed the proposed orders.401

Similar to applications for consent orders where proceedings have not been instigated, the Family Court is not required to make the proposed orders. The Family Law Rules authorise the Court to make an order in accordance with the orders sought, direct a party to provide additional information, or dismiss the application.402 Under the Family Law Act, when determining whether to make the proposed orders, the Family Court may, but is not required to, consider whether the proposed orders are in the best interests of the child.403


Child Abuse and consent orders


Limitations for making consent orders exist where there are child abuse concerns.

Where consent orders are sought as part of parenting proceedings, the Family Law Rules increase the threshold that must be met before the Court is satisfied that the proposed consent orders are appropriate. The Rules require the parties to turn their minds to the intersection of the proposed orders with child abuse concerns.404 This requirement applies regardless of whether child abuse allegations have been made during proceedings. For applications for consent orders made orally during hearing or trial in a case where child abuse allegations have been made, each party must explain to the Court how the orders attempt to address any child abuse allegations that have been made.405 If child abuse allegations have not been made, the parties must advise the court that no allegations of child sexual or physical abuse, or risk of same, have been made by either party.406 This obligation is extended to also require the parties to advise the court that such allegations are not contained in any document filed or exhibited in the proceedings any report prepared for the proceedings and any document subpoenaed to the court in the proceedings.407

Different obligations apply where the application for consent orders is filed with the Court outside of a hearing or trial. In this circumstance, each party to the parenting proceedings must certify in an annexure to the proposed orders that no allegations of abuse have been made in any document filed or exhibited in the proceedings, any report prepared for the proceedings, or any document subpoenaed to the court in the proceedings.408 The Rules do not require the parties to certify that no allegations have been made orally during a hearing or trial. Where allegations of abuse have been raised during the parenting proceedings, each party must, in the annexure to the proposed consent orders, identify each document containing the allegations and explain how the order attempts to deal with them.409

It is notable that Rule 10.15A does not require parties to satisfy the Court that either family violence allegations have not been made or that the orders are appropriate given any family violence allegations that have been made.

It is in the discretion of the judicial officer asked to consider approving the consent orders to consider the information provided and where necessary consider whether to seek further information including, for example a family report. In the case of T & N [2003] FamCA 1129; (2003) FLC ¶93-172 the Court declined to make parenting orders by consent where the court was not satisfied the proposed orders adequately addressed allegations of a history of family violence which had been made in the proceedings.

The Family Violence Best Practice Principles provide further guidance as to Court procedure where an application for consent orders has been made and a Form 4 has been filed in proceedings. The Principles provide guidance to the Court to consider the factors pointing to the child’s best interests in section 60CC of the Family Law Act.410 These factors include as a primary consideration protecting the children from physical or physiological harm from being exposed to, or subjected to, family violence, abuse or neglect. In this regard, the Principles go beyond the Family Law Act, which does not require the Court to consider the child’s best interests factors when assessing proposed consent orders.411


The Principles also contain a checklist of eight questions for the Court to consider, where the proposed consent orders provide for the child to spend time with a person against whom family violence allegations have been made. While not categorised in the Principles, the questions can be categorised under the following matters; seriousness of the alleged violence, control dynamics, threats to the children, views of the Independent Children’s Lawyer, and mental health. The questions are:


  • How serious are the allegations?

  • Are there indicators of pathological jealousy, marked possessiveness or stalking?

  • Is there any reason to believe that the parent seeking to spend time with a child or children is doing so as a way of continuing to control or maintain contact with the parent with whom the child lives?

  • Is the driving motive for the parent in wanting to spend time with his or her child related more to his or her feelings about the parent with whom the child or children principally live than about the child or children?

  • Is it clear that the parent with whom the child or children will principally live has agreed to the order without pressure from others and having had an open discussion with his or her lawyer about the arguments for and against the child spending time with a parent?

  • Has there ever been involvement of the child or children (direct or indirect) in the family violence or a threat against the children?

  • Where appointed, does the Independent Children’s Lawyer support the consent orders and, if not, how should the concerns of the Independent Children’s Lawyer be addressed?

  • Are there any indicators of significant mental illness or suicidal ideation in the parent with whom a child or children would be spending time?

Where the Court has concerns about the proposed consent orders, the Principles recommend the Court consider taking the following steps:


  • ordering the preparation of a Family Report

  • ordering the appointment of an Independent Children’s Lawyer (if not already appointed)

  • requesting a Family Consultant to interview one or both of the child’s parents and, where appropriate, the child or children and reporting back to the Court

  • ordering a section 69ZW report

  • hearing evidence to determine whether or not a parent has behaved violently or abusively towards the other parent and/or the child or children, or whether a parent with whom a child is to spend time presents an unacceptable risk, and

  • referring one or both parents to an appropriate service and adjourning the proceedings.412

The Principles also recommend the Court to deliver a short judgment outlining the reasons why the Court is making the consent orders, if the orders provide for a child to spend time with a person against whom allegations of family violence have been made.413

18. HEARING CONDUCTED WITH PARTY/IES ATTENDING BY ELECTRONIC COMMUNICATION

A party may also seek permission of the Family Court to attend court events by electronic communication. Attendance in this way can be part of response to managing safety or violence concerns (or a way to deal with practical difficulties with attendance). Using interim hearings as an example, the request must be in writing, and be made at least seven days before the interim hearing.414 However, before the party can make the application, the party must ask the other parties to proceedings if they object to the proposal. When making an application to appear by electronic communication, the applicant must inform the Court of whether the other parties to the proceedings agree or object to the proposal. If the order is made, the applicant must immediately give written notice to the other parties.

Despite the requirement to consult with the other parties about the proposal, the Family Court is cognisant that attendance by electronic communication may be appropriate in circumstances of family violence or abuse. In assessing the application, the Family Law Rules direct the Family Court to take into account ‘any concerns about security, including family violence and intimidation’. The other factors the Court may take into account are:


  • the distance between the party’s residence and the place where the court is to sit

  • any difficulty the party has in attending because of illness or disability

  • the expense associated with attending, and

  • the expense to be incurred, or the savings to be made, by using the electronic communication.415




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