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If you cannot reach an agreement about parenting arrangements for children outside of Court or in family dispute resolution, you may need to apply to Court for a Parenting Order.
Preparing your case
There are certain factors that the Court must consider when making orders about children. These are set out in the Family Law Act 1975 (‘the Act’).
You should look up s 60CC of the Act and go through the factors that relate to your case. You need to bring these factors to the attention of the Court. You can do this by preparing an Affidavit.
Other important sections of the Act to consider are:
- Section 60B (which explains the best interests of the children).
- Section 65C (who may apply for a parenting Order).
Read these sections to prepare your case.
When the Court compares the Act to the relevant facts of each case, it must also consider other decisions made by Judges. These decisions are called ‘case law’. Case law is used with the Act to make the decision in your family law case. It may be a good idea to do some research and try and find case law that has similar facts to your case.
You can get case law from most law libraries or search the Family Courts or Austlii websites.
Types of Parenting Orders
The Court no longer makes ‘residence’, ‘contact’ and ‘specific issues’ Orders but the same kinds of arrangements for children are included in what are now called Parenting Orders.
Parents (including same-sex parents), grandparents and other relatives or anyone concerned about a child’s welfare can apply for Parenting Orders. They can also be included in Parenting Orders when it is in the children’s best interests.
In most cases, you now need to participate in family dispute resolution before you apply for a Parenting Order. You also need to do this before you apply to change a Parenting Order.
Interim (short) Orders
An Interim Hearing is a short Hearing where the Court makes Temporary Orders while you are waiting for a final decision. If you have a Division 12A case, Interim Orders can be made at any time throughout the Trial or Hearing.
Federal Circuit Court Practice Direction No 2 of 2017 made important changes to the management of interim proceedings in the Federal Circuit Court, including limits on the length of Affidavits (10 pages) and the number of annexures (5) to Affidavits filed in interim proceedings.
At an Interim Hearing, the Court will use the information you have filed to make a decision or Interim Order. Only in exceptional circumstances will the Court hear evidence from you and your witnesses.
Common applications for Interim Orders include:
- children’s matters that cannot wait until a Final Hearing or Trial.
- urgent cases involving children (eg stopping a person from taking a child out of the country or finding a child who has been taken).
If you believe your case is urgent, you can ask the Court for an urgent Hearing. Ask the registrar when you file your application. To do this, the first Order on your application should read: ‘That this case be deemed urgent and that all times be abridged’.
You need to explain why your case should be heard urgently. This is done in an Affidavit. Both the Family Court and the Federal Circuit Court have Affidavit forms you can use.
Children’s cases
A registrar lists the case to the Child Responsive Program, which involves a series of meetings with a family consultant and the parties involved. The family consultant helps you sort out the issues in dispute and any help you may need. They can also help you to talk with each other and work out possible arrangements for the children. The family consultant gives you a Parenting Questionnaire to complete which outlines your situation and the arrangements you would like in place.
Any agreement reached during these meetings may be made into legally enforceable Orders later. You can also ask for Interim Orders to be made at this stage.
If no agreement is reached, a date is set for a procedural Hearing or other pre-trial event in front of a Judge or Registrar.
Family and expert reports
In many cases involving children, the Court asks a family consultant or other expert to prepare a family report. This report gives the Court an independent view of the dispute and family relationships. It may include the child’s views. You may have to pay some or all of the cost of the report if this is ordered privately.
Independent children’s lawyers
An independent children’s lawyer may be appointed when a dispute is difficult or complicated.
An independent children’s lawyer helps the Court decide what arrangements are in the child’s best interests. You may have to pay some or all of their costs.
Family consultants and family counsellors
In children’s cases the Court may appoint a family consultant. Family consultants are child and family specialists whose role is to advise people involved in family law cases.
The Court can ask for advice from family consultants and order you to see one. The Court may ask the family consultant to prepare a family report for the Court case. Anything said to a family consultant is not confidential and can be admitted (used) in court as evidence. The family consultant is sworn in as a witness during the Court Hearing.
Counsellors or mediators who work outside of the Court are called ‘family counsellors’. Anything said to a family counsellor is confidential, although there are some exceptions to this. For example, if the information given is about a child at risk of harm. Ask the family counsellor and family consultant to explain confidentiality to you.
Will the Court ask to speak to the children?
The Judge may ask to speak with the children. This does not happen very often. The Court may direct that the independent children’s lawyer and family consultant be there too, when the child meets the judicial officer. The family consultant may make a report about the meeting which will be used in the Court case.
Costs
Each party is generally responsible for paying their own costs. You may need to share some costs. For example, if there is an independent children’s lawyer or a family report. Sometimes the Court may order that one party pay some or all of the other party’s costs. This does not happen very often in children’s cases.
Section 117 of the Act sets out the considerations where the Court may order costs, because of a party’s Conduct. These include failure to obey Court Orders or directions such as answering questions or giving documents to the Court.
If you are concerned about costs or are feeling pressured to settle to avoid costs, get legal advice.
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