COVID-19 special measures

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.

Commencing proceedings

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.

Less adversarial trial procedures

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.

Independent children’s lawyer

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.

Family reports

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.

Child related proceedings in Western Australia

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.