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


Appendix 4: Practice and Procedures of the Federal Magistrates Court in parenting cases raising issues of family violence



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Appendix 4:

Practice and Procedures of the Federal Magistrates Court in parenting cases raising issues of family violence

Introduction


Like the Family Court (as to which see Appendix 3, above), the Federal Magistrates Court (FMC) operates a docket system in which the same Federal Magistrate is appointed to and remains with a case for its duration. A significant difference, however, is that while in the Family Court of Australia some work is done by registrars, in the Federal Magistrates Court nearly all tasks are undertaken by the Federal Magistrate.416 The FMC Practice Directions and Notices, Conducting Your Case, Family Law and Child Support, advises that the Court aims to hear matters within six months of filing. According to the 2007-08 Annual Report, for this period ‘95.8 per cent of family law matters filed with the Court were finalised within 12 months and 85.9 per cent of were finalised within six months’.417

The FMC’s ethos of operating without undue formality has influenced the Court’s procedural rules. The Federal Magistrates Court Rules are to support the Court to operate as informally as possible, use streamlined processes and encourage the use of appropriate dispute resolution procedures.418

The following is an outline of the Court events. The outline is indicative only, as the Court has discretion to vary the Court path to suit the needs of the families party to proceedings. However, it has been attempted to incorporate the various permutations within the general outline.

1. Family Dispute Resolution

The requirements to obtain a certificate from a family dispute resolution (FDR) practitioner or come within the exceptions to FDR, apply to parenting proceedings in both the Family Court and the FMC. For a full account of the implications of FDR as a gateway to accessing the federal family law courts, see Appendix 3.

Court ordered attendance at family dispute resolution or family counselling


Like the Family Court, the Federal Magistrates Court is empowered under the Family Law Act 1975 to consider referring parties to family counselling and family dispute resolution.419 It is an object of the Federal Magistrates Court Rules to promote ‘primary dispute resolution’, the term previously used to refer to out-of-court services such as family dispute resolution, where this is appropriate.420 The Rules do not specify what the Court should take into account when determining if primary dispute resolution is appropriate. However, under Rule 23.02, a Federal Magistrate may delegate the assessment to an FDR practitioner or a Family Dispute Coordinator.

The restrictions in the Family Law Act on disseminating and admitting into evidence communications made in FDR or family counselling sessions that apply to family law proceedings before the FMC.421 However, the Federal Magistrates Court Rules go beyond the exceptions in the Family Law Act to require the FDR practitioner to provide the Court feedback about the session with the family. The FDR practitioner is to provide the FMC a report containing details of:



  • the number of family counselling and family dispute resolution sessions

  • the outcome of the sessions, and

  • the recommended future management of the matter.422

2. Pre-action procedures

The Court has not adopted the pre-action procedures required by the Family Court for parties to parenting proceedings. However, the Court’s Annual Report 2007-2008 states that “there is an expectation that all parties to proceedings filed in the Court will engage in pre-action negotiations in a meaningful way.”423. The Annual Report does not provide details of any steps required of parties to meaningfully engage in pre-action negotiations before initiating parenting proceedings in the FMC.

3. Filing

The Federal Magistrates Court Rules do not prescribe the forms that are to be filed for various stages of proceedings under Part VII of the Family Law Act 1975 (parenting proceedings). The Rules grant the Chief Federal Magistrate discretion to determine which forms are to be used for provisions under the Rules. 424 As of November 2009, seven forms have been prescribed, by the Chief Federal Magistrate for the purposes of parenting proceedings in the Federal Magistrates Court.425 Of the seven, four are Family Court forms and one, the Initiating Application (family law) is a form jointly developed and piloted by the Family Court and the Federal Magistrates Court.426

The Rules also provide for further potential integration of Family Court forms into FMC family law proceedings. A form prescribed for a similar purpose in the Family Court may be used for proceedings in the FMC,427 provided the form is headed ‘Federal Magistrates Court of Australia’.428 The forms that may be used for both the FMC and the Family Court facilitate this Rule, by including as a heading to the form tick boxes that allow parties to indicate into which Court the form will be filed.

The ethos of operating without undue formality is evident in the Federal Magistrates Court Rules regarding the parties completion of family law forms. Subrule 2.04 (1) removes the need for parties to strictly comply with the requirements of the form they are seeking to file. Unless the Court otherwise orders, under this subrule substantial compliance is sufficient for the forms to be accepted and filed by the Court.

Initiating parenting proceedings – filing requirements


Persons seeking to initiate parenting proceedings in the FMC are to file the ‘approved form’.429 For applicants for parenting proceedings, the approved form is the same form as is used for to initiate parenting proceedings in the Family Court – the Initiating Application (Family Law).430 However, unlike applicants in the Family Court, applicants for proceedings in the FMC are required to file with the Initiating Application an affidavit stating the facts on which their application relies.431 The Initiating Application is also to include the final orders sought. The Initiating Application cannot include proposed interim or procedural orders, unless it also includes final orders.432

The applicant is to serve on the respondent(s) a copy of the Initiating Application filed and sealed by an FMC registry.433 The Initiating Application is to be served by hand on the respondent, unless service is accepted by the respondent’s legal representative.434 Under the Rules, service must occur not less than seven days before the day fixed for the first court event.435 The Rules prohibit the applicant from personally serving the respondent (which can be an important matter in cases with issues of violence).436

The Family Law Act requires the principle executive officer of the Court to ensure that a person who is considering instituting family law proceedings is provided documents about reconciliation, non-court based family services, and the Court’s processes and services.437 The FMC has adopted Rule 2.03 of the Family Law Rules 2004 that requires the Initiating Application to be served with court prepared brochures containing information about reconciliation, non-court based family services and the court’s processes and services.438

Any response to the Initiating Application is to be filed using the form ‘Response to Initiating Application (Family Law).439 This form is also used by respondents to parenting proceedings in the Family Court.440 Several options are available to the respondent in filing a ‘Response to Initiating Application (Family Law)’. The respondent may indicate consent to any proposed orders contained in the Initiating Application, ask that the Court dismiss the Initiating Application, seek separate orders, or make a cross-claim against the applicant or another party.441 If separate orders are sought, the proposed orders and the factual basis in support of the orders are to be included in the Response.442 The Response is also to include an affidavit stating the facts on which the respondent relies.443 A Response must be filed within 14 days of the date of service of the Initiating Application (and before the first Court event).444

The Response is to be served on the applicant, and any other parties to the proceedings. Where the respondent seeks orders, the applicant may file and serve a reply to the response.445 The reply is to be made in accordance with the approved form, and is to be filed and served within 14 days of being served the response.446

Filing – compulsory family dispute resolution


An applicant’s compliance with compulsory FDR is assessed when an Initiating Application (Family Law) is filed. Applicants must file with the Initiating Application a certificate under section 60I of the Family Law Act, unless an exemption from compulsory FDR applies. Applications for which an exemption to compulsory FDR does not apply and which are not accompanied by a section 60I certificate will not be accepted by the FMC.447

The Federal Magistrates Court Rules do not provide a process for filing a section 60I certificate or for claiming an exemption to compulsory FDR. These matters are covered by Practice Direction No. 2 of 2008, Family Dispute Resolution – Applications for orders under Part VII of the Family Law Act 1975.448 The Practice Direction notes that a ‘certificate pursuant to section 60I(8) from a registered family dispute resolution practitioner must be filed with an application for an order under Part VII of the Family Law Act 1975 unless the applicant falls within one of the exceptions’. Applicants claiming an exemption from compulsory FDR are directed to file an affidavit stating which exemption under subsection 60I(9) of the Family Law Act is claimed, and outlining the factual basis on which it is asserted the exemption applies.

The Practice Directions presents two options as to the form that the affidavit may take. Applicants may file an affidavit pursuant to Rule 4.05 of the Federal Magistrates Court Rules or an affidavit provided by the Family Court under the Family Law Rules 2004. Rule 4.05 of the Federal Magistrates Rules does not prescribe any form that an affidavit filed pursuant to the Rule must take. The Family Court has prepared a pro forma affidavit which is structured so that applicants must clearly identify which exemption they consider relevant to their case, and provide information to establish whether the exemption applies.449

The Practice Direction further advises that the claim for an exemption to compulsory FDR will be assessed by a Registrar, usually the duty Registrar assigned to the case. Registrars are assigned this function under Rule 20.00A of the Federal Magistrates Court Rules, through amendments to the Rules that became operative on 1 March 2008. Where an application is assessed as not meeting the claimed exemption, the applicant may apply for a review of the Registrar’s decision.450 An application for review must be made within seven days of the date of the Registrar’s decision.451 In practice such applications appear to be rare.


Additional filing requirements where parties raise family violence or child abuse concerns

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

Section 60J

Under the Family Law Act, parties who claim an exemption from compulsory FDR must satisfy the Court that they have received information from a family counsellor or family dispute resolution practitioner about the services and options available in circumstances of abuse and violence.452 This requirement does not apply where the Court is satisfied that there are reasonable grounds to believe that there would be a risk of abuse of the child if there were to be a delay in applying for the order; or there is a risk of family violence by one of the parties to the proceedings.453

The Federal Magistrates Court Rules delegate to Registrars the process of determining whether parties are required to satisfy the Court that they have received this information.454 However, the Rules do not prescribe the method by which parties are to demonstrate that they have met the requirements of section 60J. The process is provided by Practice Direction No. 2 of 2008, Family Dispute Resolution - Applications for orders under Part VII of the Family Law Act 1975. The Practice Direction requires parties to provide the court a written acknowledgement of receiving the information. The written acknowledgement may be contained in an affidavit filed according to the requirements of Rule 4.05 of the Federal Magistrates Court Rules. Alternatively, parties may file the Family Court form ‘Acknowledgment - Information from a Family Counsellor or Family Dispute Resolution Practitioner’.

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

Additional filing obligations arise for parties who raise allegations of child abuse, family violence or risk of same. Section 67Z of the Family Law Act requires parties who raise allegations of child abuse, or risk of child abuse, to file a notice in the prescribed form. In addition, section 60K of the Family Law Act provides for, but does not require, parties to file a prescribed document when making allegations of family violence or child abuse, or risk of same.

The filing of the prescribed document, whether under section 67Z or section 60K, affects the procedures of the FMC. Under section 67Z, the filing of the prescribed form places an obligation on the Registry Manager to notify, as soon as practicable, a prescribed child welfare authority of the alleged abuse.455 Under section 60K, where the prescribed document is filed, the Court must consider what interim or procedural orders should be made to facilitate obtaining appropriate evidence about the allegations, and to protect the child or parties to the proceedings from harm.456 The assessment, and any resulting orders, must be made as soon as practicable after the document is filed, and if it is appropriate having regard to the circumstances of the case, within eight weeks of the document being filed.457 Additionally, where the document is filed, the Court adopts an overarching obligation to ensure that the Court, and therefore the Court processes, address the issues raised by the allegation as expeditiously as possible.458

For the purposes of section 67Z, ‘prescribed form’ means the form prescribed by the applicable Rules of Court. Under section 60K, the ‘prescribed document’ means the document prescribed by the applicable Rules of Court. In both instances, for the proceedings before the FMC, the applicable rules are the Federal Magistrates Court Rules.459 The Federal Magistrates Court Rules do not prescribe a document or a form for purposes of section 67Z and section 60K. However, the Federal Magistrates Court Rules provide that if the Federal Magistrates Court Rules are insufficient or inappropriate in a particular case, the Court may apply the Family Law Rules 2004, or the rules of the Federal Court, in whole or in part, modified or dispensed with, as necessary.460 In addition, in all family law cases certain provisions of the Family Law Rules apply.461 The provisions of the Family Law Rules that apply in all family law courts before the FMC are listed in Schedule 3 of the Federal Magistrates Court Rules. The application of provisions of the Family Law Rules is in keeping with the provisions of the Federal Magistrates Act 1999, which permit the FMC to adopt rules of the Family Court or the Federal Court, with necessary modifications, where the Federal Magistrates Court Rules are insufficient.462

The list of applied Family Law Rules in Schedule 3 of the Federal Magistrates Court Rules includes the Family Law Rules made for the purposes of section 67Z and section 60K of the Family Law Act. Accordingly, to determine their obligations under sections 67Z and 60K of the Family Law Act, parties to parenting proceedings before the FMC must have regard to Part 2.3 of the Family Law Rules, and are required by those Rules to file a prescribed document when making allegations of family violence.463 The prescribed form and the prescribed document is A Notice of Child Abuse or Family Violence (Form 4).464 465

Under the Federal Magistrates Court Rules, Registrars are given responsibility to make procedural orders for allegations of child abuse or family violence pursuant to section 60K.466

Family violence orders


The Family Law Act requires parties to parenting proceedings to file copies of any family violence orders affecting the child or a member of the child’s family.467 The Federal Magistrates Court Rules do not specifically address this process. However, the Court applies Rule 2.05 of the Family Law Rules which directly accommodate this procedure required by the Family Law Act.468 The initiating application provides for the litigants to notify the court of such orders. In practice, where this is done, copies of the orders are usually attached to the application.

4. First Court Date / Interim hearings


The date of the first appearance before the Court is assigned at filing.469 The Family Law Courts webpage Federal Magistrates Court: The Court Process – Family Law, advises parties that the Federal Magistrate assigned to the case will preside over the fist court event.470 The Federal Magistrates Court Rules make provision for the first Court event to be heard before a Registrar, but this is not current practice.471 Various kinds of orders or directions regarding the conduct of the proceedings may be made at the first court date.472 These can include directions or orders the will affect the evidence that is provided at final hearing, such as orders or directions regarding:

  • defining of issues

  • the filing and admissibility of affidavits
  • the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means)


  • expert evidence and court experts, and

  • admissions of fact or of documents.473

Other procedural orders or directions that the Court or Registrar may make can cover any matter that the Court or Registrar considers appropriate, including the following matters: the manner and sufficiency of service; amendment of documents, cross claims; the joinder of parties, discovery and inspection of documents, interrogatories, inspections of real or personal property, the giving of particulars, transfer of proceedings and costs.474 The Federal Magistrate may also appoint the hearing date for the final hearing.475

Interim hearings


The Family Law Courts webpage Federal Magistrates Court: The Court Process – Family Law advises that applications for interim orders may also be heard at the first court date.476 The Information Notice, Conducting Your Case, Family Law and Child Support advises that applications for interim orders may be heard at the first court date if the matter is urgent. The Information Notice further advise that where the Court does not hear the application at the first court date, a date for an interim hearing will be allocated.477 The Rules do not provide specific directions about the conduct of interim hearings.

5. Urgent applications

Parties to parenting proceedings before the Court may apply for parenting orders without notice to the other party. This may occur where the applicant demonstrates that the case is urgent, and service on the respondent is not practicable.478 The Federal Magistrates Court Rules direct applicants to provide the Court information about several matters, in order to assist the Court to determine whether to make the orders sought. The matters include the steps that have been taken to tell the respondent or the respondent's legal representative of the applicant's intention to make the application, or the reasons why no steps were taken.479 Applicants must also address the Court about why the fixing of an early hearing date would not be more appropriate.480

Family violence or child abuse concerns are not among the factors listed in the Rules. However, a party could argue that any such concerns are relevant to the Court’s determination of whether to make orders on an urgent basis, without notice to the respondent. For example, applicants may bring before the Court evidence of existing family violence orders relating to the family, as applicants are required to inform the Court of orders or current proceedings in any court between the parties.481 In addition, family violence and child abuse concerns could potentially be put before the Court if the applicant establishes that the concerns are relevant to any concerns about the damage or harm which may result if the orders are not made.482 The Rules also direct applicants to inform the court of any other facts, matters and circumstances on which the applicants seeks to rely to demonstrate that the orders should be made.483 This broad, catch all criteria, could provide parties the scope to put family violence and child abuse concerns before the Court.

Orders made without notice to the respondent may have limited application. The Rules provide for the Court to specify a time at which the orders will cease operation. Alternatively, the Court may make orders that remain in force until further parenting orders in the case are made.484

6. Referral to non-trial based dispute resolution


At the first court date the Court or Registrar may make orders or directions that divert the parties from the path of hearings before the Court to non-trial support services. The kinds of orders that the Court or Registrar can make are discussed below.

Family Dispute Resolution


Rule 10.01 of the Federal Magistrates Court Rules direct the Court or Registrar to consider whether to order parties to attend primary dispute resolution.485 Primary dispute resolution is the term previously used for family dispute resolution. Where parties reach agreement through this process, the Rules provide for the parties to apply for consent orders on the basis of the agreement. The Court’s approach to referring parties to family dispute resolution is discussed at Part One of this Appendix.

Appointment with a Family Consultant/Child Dispute Conference

The Family Law Act provides for the Court to order parties meet with court appointed Family Consultants.486 In the FMC, this may take the form of the ‘Child Dispute Conference’. Under the Federal Magistrates Court Rules, this power is delegated to Registrars.487 The Rules envisage that the meeting with the Family Consultant may take the form of a conciliation conference (discussed below).488 However, the Rules do not provide further directions about the process of referral to the Family Consultants, or the form that the meetings may take.

In some FMC Registries, the referral to a Family Consultant may be formalised. For example, the Wollongong registry established a trial Child Dispute Conference program, under which an appointment with a Family Consultant is mandatory for all parties to parenting proceedings.489

Conciliation Conference


Section 26 of the Federal Magistrates Act 1999 authorises the Court to order parties attend a conciliation conference. The Rules provide for a conciliation conference to be convened by a Federal Magistrate, a Registrar or another person appointed by the Court for the purpose and, if required by the order referring the proceeding, a family counsellor, family dispute resolution practitioner or family consultant.490 The Rules provide some direction as to the form that the conciliation conference may take, through requiring that both parties attend the conference in person with their legal representatives. The Rules also place an onus on parties to make a genuine effort to resolve the issues in dispute, and provide for the Court to order costs where matters in dispute remain unresolved at the end of the conference.491

Information available on the Federal Magistrates Court’s website indicates that conciliation conferences may have limited application for parenting proceedings. The website describes the conferences as a process by which an independent and impartial conciliator assists parties to resolve financial issues stemming out of separation or divorce.492 However, as property matters may be intertwined with parenting matters, parties could potentially reach agreement on both issues at a conciliation conference.


7. Orders for legal assistance

Part 12 of the Federal Magistrates Court Rules provides for the Court to refer parties to lawyers on a pro bono panel, to obtain legal assistance with their proceedings before the Court.493 The registries of the Court are required to maintain a list of participating lawyers for this purpose494 In determining whether to make the referral, the Court make take into account the party’s financial means, capacity to otherwise obtain legal assistance, the nature and complexity of the proceeding, and any other matter that the Court considers appropriate.495

The forms of assistance that may be provided may vary from party to party. The Court may request that one or more of the following kinds of assistance be provided: advice in relation to a proceeding, representation on first court date, interlocutory or final hearing or mediation, drafting or settling of documents to be filed or used in the proceeding, and representation generally in the conduct of the proceeding or part of the proceeding.496

In keeping with the pro bono nature of the Court-operated scheme, lawyers who accept referrals from the Court cannot seek or recover from the party fees for the legal assistance provided.497 However, the lawyer can seek the cost of disbursements, and may recover costs where costs are made in favour of the party.498

8. Orders to appoint an 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.499 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.500 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.501 Under the Federal Magistrates Court Rules, Registrars are delegated the power to make orders appointing an Independent Children’s Lawyer, although in practice only Federal Magistrates make these orders.502

The ICL is not a party to the case. However, parties to the proceedings are to treat the ICL as a party. For example, parties are required to provide a copy of any documents filed and served on parties to the proceedings.503


9. Attendance by audio or video link

The Federal Magistrates Act 1999 provides for parties to proceedings before the FMC to appear by video or audio link.504 Person may also give submissions or provide evidence by video or audio link.505 This may occur either on the parties’ application or the Court’s initiative.506

The Act sets out criteria that must be met before the Court will permit a party to appear, make submissions or give evidence by video or audio link. The criteria are focused on practicalities of using the required information technology. The Court is to consider whether the proposed technology enables the remote person to be able to see and hear the eligible persons at the Court, and vice versa.507 The Act delegates to the Federal Magistrates Court Rules the determination of any further practical requirements, such as the class of equipment that may be used.508 At the time of writing, the Federal Magistrates Court Rules did not specify requirements about such matters.

10. Final hearing


The Federal Magistrates Act directs the Court to make orders that finalise all matters in dispute between the parties. The Act places on the Court an obligation to grant to the parties all available remedies so that, as far as possible, all matters in dispute between the parties are completely and finally determined.509 The Act also directs that the remedies, or orders, that the Court grants are to be framed to avoid re litigation of the issues.510 The purpose of the final hearing is to determine applications for final parenting orders, with a view to completing parenting proceedings between the parties. The Federal Magistrates Court Rules support this, by giving the Court power to make on the application of a party, any order even if the claim was not made in an originating process.511

The Federal Magistrates Court’s website advises parties that final orders may not be made at the conclusion of the final hearing. Parties are informed that the Federal Magistrate may reserve the Federal Magistrate’s decision and the final orders may be reserved to another day, usually within three months of the conclusion of the final hearing.512


Conduct of the final hearing

Under the Family Law Act, hearings in the FMC are to be managed according to principles for conducting child-related proceedings (parenting proceedings).513 The principles direct the Court to adopt a less adversarial approach, in which the Court actively directs, controls and manages the conduct of the proceedings.514

The Federal Magistrates Court’s website contains an outline of the process of the final hearings.515 Proceedings initiate with applicants, and any witnesses, providing evidence, and being cross-examined on the evidence provided. This is followed by the respondent presenting evidence and cross-examination of the respondent and any witnesses. If applicable, the process is then repeated by the Independent Children’s Lawyer, and expert witnesses. To close, parties present final submissions to the Court.

The Federal Magistrates Act provides scope for the Federal Magistrates to interact with the parties. The Act authorises the Federal Magistrates to pose question to witnesses in proceedings, where the question is likely to assist with a matter in dispute or the expeditious and efficient conduct of the proceeding.516

The Rules specifically do not give directions as to the Federal Magistrate’s role in the hearing, or the implementation of the principles under the Family Law Act relating to the less adversarial trial, in order to allow the Federal Magistrate to manage the proceedings flexibly as envisaged by Division 12A of the Family Law Act. However, under Schedule 3 of the Federal Magistrates Courts Rules, it is noted that Rule 16.10 of the Family Law Rules is applied to proceedings before the FMC, under the Rule 1.05 of the Federal Magistrates Courts Rules. Rule 16.10 of the Family Law Rules directs that the final stage of the trial will occur on the allocated dates. The Rule also requires the presiding judicial officer to hear the remainder of the evidence and receive submissions.


11. Family reports


Family Consultants may be appointed as officers of the Family Court,517 officers of the FMC,518 or as external personnel appointed under Regulation 7 of the Family Law Regulations 1984519 by the Chief Executive Officer of the Family Court or the Chief Executive Officer of the FMC.520 As of 30 June 2008, the FMC employed approximately 11.8 Family Consultants.521 Discussions with personnel of the FMC and the Family Court indicate that the FMC may also seek the services of Family Consultants employed by the Family Court.

The position of Family Consultant is established under the Family Law Act. Their role is potentially wide and multifaceted. Family Consultants may have a therapeutic role, through providing assistance and advice to families involved in family law proceedings,522 and through advising the Courts about appropriate services and programs to which the Court may refer the families.523 The Consultants can also be central to the dispute resolution process, with the Court having the authority to refer parties to Family Consultants to receive assistance to resolve their family law dispute.524

Family Consultants may also have an evidence gathering role, being delegated the function to assist and advise the courts, and give evidence, in relation to the proceedings.525 The Family Law Act empowers the FMC to order a Family Consultant to prepare a Family Report for proceedings under the Act in which the care, welfare and development of a child is relevant.526 In the FMC, anecdotal evidence suggests that the majority of Family Reports are written by external professionals appointed under Regulation 7 of the Family Law Regulations.

The Family Law Act does not specify at what point in proceedings a Family Report may be prepared, 527 and anecdotal information indicates that practice varies between registries. Under the Federal Magistrates Court Rules a party may only apply for a Family Report once he or she has applied for final orders.528

Under the Family Law Act, the threshold test for obtaining a Family Report is whether the care welfare and development of a child under 18 is relevant to the proceedings under the Act.529 The Federal Magistrates Court Rules contain additional matters that the Court may consider when determining whether to order a Family Report be prepared. These matters include whether the matters in dispute:


  • are complex or intractable

  • concern the views of a child who is of sufficient maturity for his or her views to be taken into account, or

  • about the existence or quality of the relationship between a parent, or other significant person, and a child.530

Family violence and child abuse concerns may also be a reason for a Family Report being ordered. Under the Rules, when determining whether to order a Family Report the FMC may take into account allegations of family violence or that a child is at risk of abuse.531 The Court will also take into account whether there is any other relevant independent expert evidence available.532

In keeping with the evidence gathering role of Family Consultants, under the Family Law Act a Family Report may be received as evidence.533 Once received as evidence, the Family Consultant, or report writer appointed under Regulation 7 of the Family Law Regulations, may be examined on the evidence contained in the report.534 The Federal Magistrates Court Rules expand the role of the FMC in relation to completed Family Reports. For example, the Court may provide copies to the parties to the proceedings, including any appointed Independent Children’s Lawyer, and/or restrict access to the report.535


12. Experts reports

The Family Law Act authorises the FMC to appoint an expert to prepare evidence in relation to the family.536 The Court may determine the manner in which the evidence is to be presented.537

Rules relating to the use of expert evidence are contained in Division 15.2 of the Federal Magistrates Court Rules. Division 15.2 is not limited to family law proceedings but applies to all proceedings before the FMC.

The Court may appoint an expert to inquire into and report on an issue arising in the proceedings, at its initiative or at the request of a party.538 The rules direct that where possible the appointed court expert should be a person agreed upon between the parties.539 Once completed, the court expert’s report is provided to the Registrar, who is required to provide copies to each party to the proceedings.540

Where the Court permits, the expert’s report may be received as evidence. The Court may also give directions as to the use of the report, and allow cross-examination of the court expert.541

Where a court expert’s report has been prepared, a party provides additional expert evidence on the issues covered the report, with the leave of the Court.542 Where two or more parties to a proceeding call expert witnesses to give opinion evidence about the same, or a similar, question, the Court may direct the expert witnesses to:


  • direct both expert witnesses to prepare a joint statement of how their opinions on the question agree and differ

  • provide an oral or written statement commenting on the other expert’s evidence, and

  • advise the court whether one or both expert witnesses wish to revise their expert evidence.

The Court may also direct the manner in which the evidence of both experts is to be given.543

13 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 final orders have been made.544 This order can only be made where the Court considers that the order is in the best interests of the child.545

14 Post order programs


Where the court makes a parenting order, the Family Law Act requires the court to inform the parties of counselling serves, family dispute resolution services and other courses or programs that can assist the family in adjusting to the terms of the order.546

Before informing the parties of the services, the FMC is to confer with the Family Consultant about which services are appropriate to the family.547


15 Consent orders

The Federal Magistrates Act contains directions about the use of consent orders in proceedings at the Federal Magistrates Court.548 However, the directions are not operative for proceedings under the Family Law Act.

For family law proceedings, parties may apply for consent orders at various stages of the process through the FMC. Consent orders may be made without parenting proceedings being commenced, and therefore without the Court being involved with the case through parenting proceedings. Alternatively, consent orders may be applied for at any stage once parenting proceedings have commenced.

Directions for applying for consent orders are contained in Division 13.2 of the Federal Magistrates Court Rules. The Federal Magistrates Court Rules do not distinguish between consent orders sought prior to families initiating proceedings in the Court, and ones sought once proceedings are on foot: for example, affidavits are required in both instances. Anecdotal evidence indicates that it is practice to direct parties to apply for consent orders in the Family Court where families are seeking consent orders without instituting parenting proceedings.

The Rules contain limited directions about the form that the consent orders must take. The Rules only require that the proposed orders be signed by all parties, and state that the draft orders are made by consent.549 However it is not uncommon for a Federal Magistrate to require the parties to appear in order to explain why the proposed orders are in the best interests of the child.

The Court has broad discretion to make such orders as the Court considers appropriate in the circumstances of the case.550 While the Court may request further information from the parties,551 the Rules provide no direction as to what orders may be appropriate in what circumstances. The parties are not required to satisfy the Court of any particular, save that the orders are made with the consent of all parties.




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