Australian Family Law Parenting Steps
STEPS TO SETTLING PARENTING ISSUES
Ending a relationship is difficult for all parties but can be extremely confusing and unsettling for children.
The sections of the Australian Family Law Act 1975 (Cth) (“the Act”) that deal with arrangements for children of a separating couple, have as their focus the “best interests of the children”. The Act specifically highlights the need to consider how any orders for the care, welfare and development of the child or children of the relationship can be promoted.
In this sense, rather than parents having rights, they have responsibilities in that they must have as their highest priority what is best for their children and how to minimise the effects of the separation.
The Family Court has a process to follow when seeking Parenting Orders.
What are Parenting Orders?
If you and your former partner cannot agree on arrangements for sharing the care of the children then the Courts may make orders that will regularise the time the children spend with each of you and in some cases, who will have responsibility for making major decisions such as schooling and/or medical issues.
There are 3 main types of Court orders:
Final Orders which finalise the matter so that it is removed from the Court’s list;
Interim Orders which are provisional orders that must be complied with until Final Orders can be made and/or the matter reaches the Final Hearing;
Consent Orders when both parents agree on the arrangements for the children and the Court will formalise that agreement by making the orders by Consent.
Before you go to Court
You may both decide to enter into a parenting plan which is less formal than Court Orders. To get to this point you may have attended non-court based services such as Family Counselling or Dispute Resolution. An independent family dispute resolution practitioner can help you both talk through any dispute you may have and assist you in resolving a workable plan to care for your children.
If the parenting plan works, you can have it formalised by the Court as Consent Orders which are enforceable by law. This may give you peace of mind as Orders must be complied with and so a routine can be established which allows you to sort out the other areas of your life that have been affected by separation.
If you can reach agreement by “Consent” it saves you a lot of stress and time.
Pre-Action Procedures
It is requirement that you comply with pre-action procedures before applying to the Court to start the process of resolving parenting issues.
Exceptions apply such as if there is a risk of family violence. Otherwise, you must attempt to resolve any issues at compulsory Family Dispute Resolution. (FDR)
You must exchange all information such as school reports or treating medical practitioners and any documentation that is relevant to the care of the children.
S60I Certificate
You only need this if you cannot resolve your matter in FDR and need to go to Court. It will be issued by an FDR practitioner to confirm that you have attended FDR and made a genuine attempt to resolve the conflicting issues.
Applying to the COURT
If no agreement can be reached, then one of you may make an application to the Court for Parenting Orders.
Family Court or Federal Circuit Court?
If there are issues or allegations of sexual abuse, the matter is referred to the Magellan List of the Family Court.
Less complex matters go to the Federal Circuit Court (FCC). Each case in the FCC is in a “docket” where you will have the same judge until the matter is settled.
Initiating Application
To start the process of applying for Parenting Orders you first file an Initiating Application as well as an Affidavit which is a signed statement of the evidence you are presenting in support of the orders you are seeking.
The matters you must address in your Affidavit relate to s60CC of the Family Law Act.
If you make the application then you will be referred to as the Applicant.
Your former partner will have to respond to your application and provide an affidavit in support and will hence be known as the Respondent.
Step 1 – Directions Hearing
Once you have filed the Initiating Application, the Court sets a date for the Directions Hearing which is held before a Registrar who is a lawyer of the Court with delegated judicial powers.
The Registrar makes directions for procedural matters such as when documents should be provided to progress the matter and the telephone mention date. The Registrar will also allocate a date for when you are to attend the Child Responsive Program.
Step 2 - Child Responsive Program
All family members attend sessions or meetings with the Family Consultant who is a counsellor appointed by the Court. The consultant meets separately with each parent to focus on the issues in dispute and the alternate proposals of each party. Then the Family Consultant will meet with the parents and children.
After the meetings the Family Consultant issues the Child Responsive Program Memorandum which is a written document summarising the facts and the respective proposals of the parents, any agreement between the parties and may also outline the consultant’s preliminary view of the best way forward for the children.
Step 3 – Telephone Mention
Only lawyers attend this mention which is heard by telephone link between the Registrar and the parties’ lawyers.
The mention deals with the steps that are needed to progress the matter in the light of the Child Responsive Program Memorandum. The Registrar will also check whether all earlier directions have been complied with and if any further directions may be needed to facilitate these directions if any difficulties have arisen.
Step 4 – Pre-trial Disclosure
At this stage you will complete the Parenting Questionnaire in preparation for the trial and any other information that may be required such as medical updates for any treatment the child/ren may need.
Step 5 – Compliance Check
The Judge will list the matter for a mention to check that all parties have complied with their obligations for disclosure and any other orders so that the trial is ready to proceed.
Step 6 – Final Hearing
This is the stage where you and your witness will attend court and give your evidence in the witness box. You each will be asked questions by the other party’s lawyer. The Independent Children’s lawyer will represent the children to promote their best interests. On the last day, the lawyers make submissions which summarise their case and the proposals of their client.
FINAL ORDERS
The judge will usually not issue a final decision on the final day of the hearing. Instead the decision will be reserved to be published in about 3 to 6 months’ time.
CONSENT ORDERS
At any time during the Court process right up until the Judge makes a decision, parents can say “stop”, we have worked out an agreement.
This agreement can be made as Consent Orders that are legally binding.
Then the parties and the case can be removed from the Court system.
Legal Advice
Navigating the Court system can be overwhelming. If you need legal advice to progress your matter so that parenting arrangements can be settled and the conflict resolved, please contact us so that we can help you through the Court process.
This article is for information only and does not constitute legal advice.