LexisNexis Practical Guidance®

Following the amendments introduced by the Family Law Reform Act 1995 (Cth), the concepts of guardianship, custody and access in the Family Law Act 1975 (Cth) (FLA) were replaced by the terms: parental responsibility, and parenting orders which deal with residence (“live with” and “spend time with” orders), contact, child maintenance and specific issues orders.

One of the central objectives under the current Family Law Act 1975 (Cth) is that parties attempt to resolve their disputes about either children or their property as much as possible themselves through the use of mediation and family dispute conferences. Avoiding litigation is encouraged, not only to avoid the cost of legal fees but also to avoid the very long and stressful process of getting a final decision.

When making any order related to a child, the court must regard “the best interests of the child” as the paramount consideration. In making a parenting order, the court will decide the significant aspects that might affect a child’s usual living arrangements such as:

• •the person/s with whom the child shall live;
• •the time or communication the child will have with other persons;
• •the allocation of parental responsibility;
• •the maintenance of the child; or
• •any aspect of the care, welfare or development of the child. See s 60CA of the Family Law Act 1975 (Cth)

The best interests of the child are also relevant to proceedings relating to a proposed variation to a parenting plan, leave to commence adoption proceedings or varying parenting orders in family violence proceedings.

Where the court’s jurisdiction is properly invoked in relation to a family law matter, the child ’s best interests remain the paramount consideration. However that may not be the case where orders are sought relating to procedural issues such as the “inappropriate forum” test or a stay order of existing proceedings. The court retains its discretion to embark on a full hearing where the child is living in Australia at the time of the proceedings and whether an overseas court is likely to properly inquire into the child’s welfare and other matters it may determine as being relevant. See EJK v TSL 35 Fam LR 559 where a Korean mother sought ex parte interim parenting orders which were disputed by the father who wanted the children returned to Korea.

Practice Tip: The legislative pathway described below with respect to care arrangements for children under the Family Law Act 1975 (Cth) has been the subject of review by the Australian Law Reform Commission. The Commission has published its final report and made significant changes to existing legislation but as yet, no legislative changes have been implemented.

Before making any parenting orders, the court is obliged to take into account two primary considerations:

• •the benefit to the child having a meaningful relationships with both parents; and
• •protecting the child from being subject to either physical or psychological harm, abuse or neglect with greater weight being given to this latter consideration. See s 60CC(2).

In addition to this paramount consideration, the court shall also consider additional matters such as:

• •the nature of the child’s relationship with their parents or other persons;
• •the child’s wishes (depending on their age and maturity);
• •each parent’s capacity and demonstrated attitude towards the responsibilities of parenthood and the welfare and education of the child;
• •the practical difficulty of the child spending time with the parent; and
• •the child’s right to maintain a connection with their indigenous culture and to have the support and opportunity to explore the full extent of that culture.

See s 60CC(3) of the Family Law Act 1975 (Cth).

The nature of the child’s best interests is also relevant in those instances where the court is considering granting leave for adoption proceedings, varying an existing parenting plan, or varying existing orders where the welfare of the child may be at risk.

Where a child lives with a non-parent, such as a grandparent, is under consideration this factor would fall under the “additional matter” heading. The court would not necessarily give this factor a lesser weight than the child’s relationship with their parent. However in Mankiewicz v Swallow [2016] FamCAFC 153 an appeal by great grandparents was dismissed because the court found they lacked standing to commence proceedings under s 65C unless they could demonstrate they were a person “concerned with the care, welfare or development of the child”. The Act has since been amended in light of this decision to specifically include grandparents — see s 65C(ba).

When a court makes a parenting order relating to the parents having either equal shared parental responsibility or the child spending substantial and significant time with either parent, the court is obliged to have regard to the best interests of the child. See s 65DAA. In Hamish & Brighton [2014] FamCAFC 242 the court considered the best interests of the children in relation to a proposed relocation by the mother to another State which would have varied the existing orders which gave equal parental responsibility and substantial time to the father.

Views of the child

The court may inform itself in a number of ways about the expressed views of the child, either through a report or through the appointment of an Independent Children’s Lawyer to represent the child. See s 68L. In Bondelmonte and Bondelmonte [2017] HCA 8 the views of two brothers aged 17 and 15 years was expressed through the evidence of their father and the Independent Children’s Lawyer in that they wanted to remain living with their father in New York. The court rejected their views and ordered the younger brother to be returned to Australia (not having jurisdiction over the older brother) but that he could continue to live with his father on an interim basis. The primary judge in this case was of the opinion that the father had greatly influenced the boys’ desire to return to Australia.

Following 2011 amendments to Pt VII Children, a party to a proceeding is required to advise the court if any child or member of the child’s family is the subject of a family violence order. Consistent with the court’s obligation to make the child’s best interests its paramount consideration, any order it makes should be:

• •consistent with any family violence order; and
• •should not expose a person to an unacceptable risk of family violence. See s 60CG.

The requirement to inform the court includes situations where under child welfare laws, a person is under care arrangements or the subject of an inquiry or investigation.

As a consequence of this general obligation, an adviser, as defined by s 60D is required to notify the court.

Each of the parents of a child who has not turned 18 years has “parental responsibility” for the child: s 61C, Family Law Act 1975 (Cth). Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”: s 61B, Family Law Act 1975 (Cth). This presumption does not apply in certain circumstances and can be rebutted.

There is a presumption, when a parenting order is being made in relation to a child, that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility: s 61DA, Family Law Act 1975 (Cth). This presumption does not apply in certain circumstances and can be rebutted. It is also possible for one parent to have sole parental responsibility or for a person other than a parent of the child to have parental responsibility (sole or shared) for that child.

When parental responsibility is shared between two or more persons, there is a legal requirement for those persons to jointly make decisions that are major long term decisions for that child. This means that each person has to consult with the other and make a genuine effort to come to a joint decision about that issue. It does not actually require agreement for a decision to be made jointly, although depending what the issue is about logistically it may not be possible to implement a decision without the written consent of both or all persons with parental responsibility (eg, medical decisions, changing a child’s name or to enrol in a private school). In these cases a court order may be required where the parties do not agree. There is no need for consultation on decisions which are not major long term decisions, ie the day to day decisions about what a child eats, discipline, sleeping times etc. See ss 65DAC and 65DAE FLA.

Practice Tip: For a case which looks at how to approach the task of drafting orders for parental responsibility see Pavli v Beffa [2013] FamCA 144. For a case where the court determined that a parent was to have no parental responsibility see Modlin & Anstead [2013] FamCA 955.

Major long term issues is defined in s 4 of the Family Law Act to mean issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

• •the child's education (both current and future);
• •the child's religious and cultural upbringing;
• •the child's health;
• •the child's name; and
• •changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

See B and B and Goode v Goode (2006) 36 Fam LR 422.

See Parental responsibility.

Part VII of the Family Law Act 1975 (Cth) provides the substantive framework for parenting orders; that is, applications and orders concerning care arrangements for children following the breakdown of the parents’ relationship. Part VII is intended to be a comprehensive set of principles to be followed in all cases where parenting orders are sought pursuant to the Family Law Act 1975 (Cth). The object of Part VII is to ensure that the best interests of children are met.

Part VII is divided into a number of divisions, each dealing with separate aspects of the law to be applied. Care must be had to refer to the relevant division when making an application to the court to ensure that all relevant aspects are considered.

See Parenting orders.

If the presumption of equal shared parental responsibility applies, (it can be rebutted where there is family violence or high levels of conflict between the parties) the court must firstly consider that child spending equal time with each parent and, if equal time is not in the child's best interest, then consider whether it is reasonably practicable for the child to spend equal time with both parties and, if not, then the court must consider the option of the child spending "substantial and significant time" with each parent.

See Shared and substantial care.

Primarily, parenting orders are concerned with the time that the child “lives with” or “spends time with” each parent. This is usually the most contentious issue in applications for parenting orders. Usually following the making of residence orders, the court will also determine the allocation of “parental responsibility”, While the primary residential parent is always likely to have parental responsibility, the “spend time” with parent may also have shared responsibility.

There is wide scope of the living arrangements that may be made for the child. If the parents are able to cooperate and live in relatively close proximity, the child may have a “week about” arrangement where they effectively live in both homes. More frequently however, the child will mainly live with one parent and spend time with the other parent on alternate weekends. Drafting such orders requires consideration of school holidays and festival days such as Christmas and Easter taking into account fairness to both parties. Detailed orders set out the rules for the parties and reduce conflict over extended periods.

See “Live with” and “spend time with” orders.

Family violence is recognised as one of the factors that can have a significant adverse impact on the welfare and development of a child. For this reason, the Family Law Act 1975 (Cth) repeatedly makes reference to the consequences of violence where it is alleged.

Family violence means actual or threatened conduct which causes a reasonable fear of a person’s well-being or safety: s 4(1), Family Law Act 1975 (Cth). It does not only mean violence directed towards the child but includes the child witnessing family violence or the aftermath thereof (eg a party upset following violence, damage to property etc) and any actual or threatened conduct between parties or from one party to another person. For this reason, the existence of family violence between spouses is seen as having, or potentially having, an adverse effect on the child’s welfare and development and/or the parenting capacity of the victim of that violence.

In all applications dealing with children, there is a need to consider whether family violence is a factor and what the short and long term legal and psychological effects of that violence might be on the child who is the subject of the application and the adult victim carer of the child. Family violence will affect individual children differently and evidence should be lead that is specific to that child as well as expert evidence about the neurological, psychological and behavioural impact on family violence on the development of the child. The Court is also required under the Family Law Act 1975 (Cth) (and in WA, where applicable, the Family Court Act 1997 (WA), to take into account any family violence protection orders which may exist (eg, for the protection of the parent and/or the children) and ensure that any family court orders are consistent with such orders to the extent possible. Where there is inconsistency, the Family Court orders will override the (State Court) family violence orders but only to the extent of the inconsistency.

Practice Tip: There is a lot of useful guidance material for practitioners about family violence and its effects particularly on children and in the context of family law in the National Family Violence Benchbook which was developed by the Australian Institute of Judicial Administration.

Practice Tip: Practitioners should take active steps to ascertain whether any family violence orders exist, the details of the order made (if not a copy of the actual order) and, where possible, the evidence on which the State family violence order was made, is put into evidence in the Family Court proceedings. In some States (eg, Western Australia) the proceedings are recorded so parties can obtain a copy of the transcript for the family violence order ex parte proceedings and tender the transcript into evidence in the Family Court proceedings.

See Allegations of family violence or child abuse.

Where two or more persons share parental responsibility for a child under a parenting order in respect of a “major long-term issue”, then there is an obligation on the parties, pursuant to s 65DAC(2) of the Family Law Act 1975, to make any decision in respect of that issue jointly. This means they must consult each other and make a genuine effort to come to a joint decision: s 65DAC(3), Family Law Act 1975. Although the persons with shared parental responsibility have an obligation under the Act to consult in relation to these issues, the act does not say what is to happen if the parties cannot come to a joint decision.

Major long-term issues (as defined by s 4 of the Act) in relation to a child include (but are not limited to) issues concerning:

• •the child’s current and future education (see Major long-term issues — Education);
• •the child’s religion and cultural upbringing (see Major long-term issues — Religion);
• •the child’s health (see Major long-term issues — Health);
• •the name of the child (see Major long-term issues — Change of name); and
• •changes to the living arrangements of the child that would make it significantly more difficult for the child to spend time with a parent (see Major long-term issues — Relocation and see Location and recovery orders).

In response to the coronavirus (COVID-19) pandemic, the Courts have modified practices in order to minimise the attendance by legal practitioners and parties at registries and at court for directions hearings. Consequently, the family courts have issued Joint Practice Direction 2 of 2020 — Special Measures in Response to COVID-19 which applies to all family law applications, including appeals, filed in the Family Court of Australia or the Federal Circuit Court of Australia (“the Courts”). In addition, the Courts have issued a Child Dispute Services — in-person interview protocol in respect of most interviews conducted by family consultants.

Increasingly, most cases begin in the Federal Circuit Court, unless the issues in the case appear complex and difficult from the outset. Complex cases would include cases involving allegations of sexual abuse of the children, extreme family violence, relocations overseas, special medical procedures or cases in which there are multiple parties. Cases without such complex features are generally better done under the simpler Federal Circuit Court Rules 2001 (Cth).

Complex parenting cases are usually instituted in either the Family Court (of Australia or in Western Australia the Family Court of Western Australia). Different Court Rules and costs will apply in each case and practitioners need to consider which court will best suit the needs of the parties and have regard to the Practice Directions which provide guidance as to which matters should be commenced in the Family Court of Australia or the Federal Circuit Court of Australia.

It should be noted that the Family Court Rules 2004 (Cth) differ from the Federal Circuit Court Rules 2001 (Cth)and that different documents may be required at the time of filing and different procedures followed thereafter.

It should also be noted there is a Bill currently before Parliament purporting to merge the Family Court of Australia and Federal Circuit Court of Australia to create a single court (at this stage to be called Federal Circuit and Family Court of Australia) to deal with all family law matters including appeals. If this Bill passes, it will significantly change the court practice and procedure for family law matters.

See Commencing proceedings.

Note that this guidance note does not apply to family law proceedings in Western Australia.

Part VII Div 12A of the Family Law Act 1975 (Cth) (FLA) sets out the principles for conducting child related proceedings.

These procedures are known as the “less adversarial trial” or LAT, process which is followed in the Family Court. The essential principles of the LAT process are:

• • the court is to consider the needs of the child and the impact that the proceedings may have on the child;
• • the court is to actively direct, control and manage the conduct of the proceedings;
• • the proceedings are to be conducted in a way that will safeguard the child and the parents against family violence;
• • the proceedings are to be conducted in a way that will promote co-operative and child focused parenting; and
• • the proceedings are to be conducted without undue delay and with as little formality as possible.

The LAT process can involve a significant departure from the “normal procedure” followed in courts and care must be taken to understand and comply with the court’s requirements.

See Less adversarial trial procedures.

Wherever there are allegations of child abuse or family violence, s 67ZBB of the FLA requires the court to take “prompt action” in cases where a person applies for parenting orders. Such allegations usually appear in the mandatory Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4). Where such allegations allege that there has been abuse of the child, or risk of such abuse, or there is a risk of family violence by one of the parties, the court can order that a child be independently represented: see s 68L(2) of the FLA. The court has well established principles as to when such an order should be made: Re K (1994) 17 Fam LR 537.

See Independent children’s lawyer.

There are a number of ways for the voice of the child to be heard in the court proceedings, the most common way is through the family report process. The court will appoint a family consultant to assist the court: s 11A, FLA.

In almost all cases that proceed to a hearing in either the Family Court or the Federal Circuit Court, a family report will have been prepared to assist the judge determine the outstanding issues. The role of the family consultant includes observing the relationships between the child and the related parties and assisting and advising parties to better understand the impact of court orders on the child concerned. Communications with the family consultant are not privileged and may form the basis of the consultant’s report to the court. Family consultants can also inform people about other services available to help them.

Part VII, Div 3 of the FLA makes provision for the ordering and receiving into evidence of a family report .

See Family reports.

As Western Australia is the only State that has not referred its de facto relationship powers to the Commonwealth, the FLA only applies to children of married couples. Ex-nuptial children, that is, children born outside of a marriage, are covered by the Family Court Act 1997 (WA) (FCWA) which is for all intents and purposes, the same as the law in the FLA.

Most of the provisions of the FCWA mirror the FLA even to the extent that the titles of the sections refer to the corresponding sections of the Commonwealth Act.

The Family Court of Western Australia has different court practice and procedure to that of both the Family Court and Federal Circuit Court of Australia. It has its own rules (Family Law Rules 2004 (Cth)) which are similar to those of the Family Court of Australia but different in some key areas. There are also Case Management Guidelines, Practice Directions and Information Notes which govern in more detail specific aspects of court process. They are available on the Family Court of Western Australia’s website.

See Child related proceedings in Western Australia.

“Child-related proceedings” refers to proceedings involving children, that arise as the result of the breakdown of the parties’ domestic relationship and which may be dealt with, either wholly or in part, under Div 12A, Family Law Act 1975 (Cth) (FLA). Disputes that involve children require a different approach to usual litigation and the procedures are set out in ss 69ZM–69ZX, FLA. Disputes relating to alteration of property interests are more like usual litigation processes and are dealt with by the court separately to child-related proceedings.

Allegations of family violence related to the other party in a relationship and/or abuse of children either physical or psychological, are a relatively common feature of matters proceeding to trial. Amendments to the FLA reflect the court and practitioners being directed to focus on the best interests of the child when making any order. The principles under Div 12A, Pt VII of the FLA direct the court to actively manage the proceedings and safeguard the parties against family violence.

Because of the often complex factual situations and sensitivities related to litigation involving children, judicial officers will play a more active role in determining the issues to be covered. The parties themselves will be directed to attend family dispute resolution to avoid protracted litigation and a family consultant may be asked to prepare a report to assist the court, having interviewed the child and the parties. Relevantly a child may not directly give evidence to the court and therefore, hearsay evidence may be admissible when the court determines the form of any order made.

Division 12A, FLA provides that proceedings under Pt VII of the FLA (child-related proceedings) exclude the application of strict evidentiary rules. The court is required to treat the best interests of the child as the paramount consideration in deciding children’s issues. The Evidence Act 1995 (Cth) (EA) continues to apply to other family law proceedings related to property settlement or spousal maintenance unless the parties consent to the exclusion of the EA.

See Exceptions related to evidence of children.

The Family Court retains wide powers to give directions or make orders about the manner and content of giving evidence and about the inclusion, content, manner of expert evidence pursuant to ss 69ZN and 69ZX. As the court is not strictly bound by the EA, it retains a discretion as to whether to admit improperly obtained evidence unless the desirability of admitting it outweighs not admitting it, based on such factors as the importance and probative value of the evidence and the nature of the subject matter.

See General powers of the court relating to evidence.

Section 69ZT, FLA excludes the operation of various divisions of the EA in parenting proceedings. The most frequent exceptions relate to hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. In exercising this discretion, the court is required to consider the circumstances contemplated by s 69ZT(3), FLA which include that it is satisfied there are exceptional circumstances and the importance of the evidence, and the nature of the subject matter of the proceedings.

See Exclusion of strict evidentiary requirements.

The standard of proof in civil proceedings is “on the balance of probabilities” (s 140(1), EA) taking into account such factors as the nature and gravity of the subject matter of the proceedings as expressed in Briginshaw v Briginshaw (1938) 60 CLR 336.

Section 69ZN, FLA sets out the principles to be exercised by the court or a registrar of the court when conducting child-related proceedings. Both the court and the parties are to be child focused during the progress of the litigation, considering the needs of the child/children and the impact of the conduct of the proceedings on the child/children. This requires the court to treat the best interests of the child as the paramount consideration in deciding children’s issues.

See Court procedure in child-related matters.

“Family violence” has an expanded definition under s 4AB(1), FLA and includes violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

Examples of family violence can include:

• •assaults;
• •sexual assault;
• •derogatory language;
• •causing damage to property;
• •injury to animals;
• •denying financial support;
• •preventing contact with other family members; or
• •depriving a family member of their personal or financial autonomy.

Exposing a child to any such acts can also be said to constitute family violence: s 4AB(3), FLA.

Where allegations of family violence have been made in the evidence, personal cross-examination between an alleged perpetrator and an alleged victim are now no longer permitted and the cross-examiner is required to obtain legal representation to conduct the cross-examination.

Where the court is asked to make orders as to whether a child should spend time with a parent when there are allegations of sexual or other serious abuse, it is not necessarily required to make a finding that an offence has occurred. It is sufficient if the court finds that there is an unacceptable risk that the child might be exposed to harm in making its orders. The court is required to achieve a proper balance between the benefit to the child of having access to her parent and the risk of detriment if that access should be allowed.

See Allegations of family violence and child abuse.

In addition to the general application of evidentiary rules, the FLA has specific provisions relating to the admissibility of certain evidence, for example:

• •that any party to a proceeding is a competent and compellable witness;
• •that a family report is admissible;
• •disclosures made to a professional person or a family counsellor; or
• •where a child is referred to a professional person for an examination.

In any case, any disclosure may be admissible where the person reasonably believes that such disclosure is necessary to protect a child from the risk of physical or psychological harm; or prevent or lessen a threat to the life or health of a person or prevent the commission of an offence.

See General admissibility provisions.

The FLA makes specific exemptions that excludes strict adherence to evidentiary rules, for example, where a representation made by a child about the welfare of that child or another child may be admissible even where it is hearsay: s 69ZV, FLA. Even where the court permits evidence to be admitted, it must also consider the weight to be given to such evidence.

See Admissibility of hearsay evidence.