How are child-related proceedings managed in the Federal Circuit and Family Court of Australia?

In 2006, the Federal Circuit and Family Court of Australia’s (FCFCOA) case management and trial process for matters involving children was amended by the insertion of Division 12A into the Family Law Act 1975 (Cth) (FLA). Division 12A applies to any proceedings concerning childrens matters (Part VII of the FLA) and has resulted in a system that is less adversarial, less formal and less legally technical for those matters.

What are the principles for conducting child-related proceedings?

Division 12A requires the court to keep in mind and follow a list of principles for conducting child-related proceedings as set out in s 69ZN of the FLA. Basically, the principles provide for the following:

• the court to consider the needs of the child and the impact of the proceedings on the child to determine how the matter should progress; and
• the court to conduct the proceedings in a way that protects the safety of the child and the parties to the proceedings.

What is the process and timeline for dealing with parenting/child-related proceedings?

Upon filing an Initiating Application and supporting documents, the Court will fix a date for the first court event as soon as practicable; usually between 1 to 2 months of filing the Initiating Application. The court will consider any application for the matter to be heard on an urgent basis and will list the matter accordingly. The case management of the matter will be determined by either specialist practice direction (e.g. Magellan List, Evatt List etc.) or the case management pathway.

At the first court event, the judicial officer may consider whether it is necessary for the progression of the matter to order the following:

• engage a Family Consultant to conduct child and family assessments for the purpose of preparing reports;
• engage an Independent Children’s Lawyer to represent the best interests of the child/ren;
• list the matter for interim hearing at an appropriate time if necessary or, for dispute resolution to occur (generally no later than 5 months after the date of commencement of a proceeding).

The matter will generally be listed for Mention before a Registrar approximately 2 weeks after the Dispute Resolution event to consider how to deal with any issues that remain unresolved.

If a matter is progressing to final hearing, it will be listed for a Compliance and Readiness Hearing approximately 6 months after filing the Initiating Application. The aim of the case management pathway is to have final hearings listed within 12 months of the commencement of the matter, but this will depend on whether the parties comply with relevant orders and directions.

How do the normal rules of evidence apply to child-related proceedings?

Generally, in Court proceedings the rules of evidence will apply. That is, the Evidence Act 1995 (Cth) states that evidence must be relevant for it to be admissible and, if relevant, then that evidence is subject to further conditions before it can be accepted into evidence. In child-related proceedings in the FCFOCA, the FLA gives rise to a significant departure from the usual rules of evidence. Unless the court determines otherwise, s 69ZT of the FLA states that the rules of evidence do not apply in child-related proceedings, thereby providing for a more liberal approach for the receipt of evidence in child-related proceedings. That is not to say that the rules concerning evidence are ignored, rather, a judicial officer must consider the weight to be attributed to any evidence which is admitted as a consequence of non-compliance with the strict rules of evidence.

Please feel free to get in touch with one of Solari and Stock’s experienced Family Law Team if you would like any further information on parenting and child-related proceedings, you can reach us on 02 8525 2700 or click here to request an appointment with one of our team.

Article by Kirstin Attard
Photo by Jordan Whitt on Unsplash