Family courts

15.16 Two federal courts deal with matters under the Family Law Act—the Family Court of Australia (Family Court) and the Federal Magistrates Court of Australia (FMC). The FMC deals with the majority of family law matters.[11]

15.17 The two courts operate from a single registry, where parties may file documents for proceedings in either court. While parties can select which court they wish to use, the protocol for the division of work between the two courts provides that where there are serious allegations of child sexual or physical abuse or ‘serious controlling family violence’, proceedings should be filed in the Family Court, rather than the FMC.[12]

15.18 The Australian Government has introduced legislation to restructure the federal family courts. The restructure would create two divisions in the Family Court. The Appellate and Superior Division, comprising Family Court judges, would hear complex family law matters and appeals. The General Division, comprising Federal Magistrates who currently undertake family law work and accept a new commission, would hear most family law matters.[13]

15.19 In addition to the federal family courts, the Family Court of Western Australia has jurisdiction under the federal Family Law Act.[14] It also exercises jurisdiction under Western Australian legislation, and may make care and protection orders under the Children and Community Services Act 2004 (WA). Unlike the federal family courts, it may make care or protection orders in relation to children. The Family Court of Western Australia consists of both judges and magistrates, and some procedures in that court may differ from those in the federal family courts.

Powers

15.20 The Family Law Act sets out the rules and procedures that federal family courts follow when determining family law disputes on separation, including parental responsibility for children and financial matters arising from separation.

Parenting orders

15.21 A parenting order can deal with any aspect of parental responsibility for a child. Parenting orders may be made in favour of a parent or another person, such as a grandparent or other relative of the child.[15] A parenting order may specify who has parental responsibility for a child, with whom a child lives, the time a child spends with his or her parents or other persons, and other aspects of the child’s care, welfare or development.[16]

15.22 The paramount consideration when making a parenting order is the ‘best interests of the child’.[17] In determining a child’s best interests, the court must consider two ‘primary’ and 13 ‘additional’ considerations. The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[18]

15.23 ‘Additional considerations’ include:

  • any views expressed by the child;

  • the nature of the relationship between relevant persons and the child;

  • the maturity, sex, lifestyle and background of the child and his or her parents;

  • the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;

  • the practical difficulty and expense of a child spending time or communicating with a parent;

  • any family violence involving the child or a member of his or her family;

  • the capacity of the child’s parents and any other person (such as a grandparent or other relative) to provide for the needs of the child, including emotional and intellectual needs; and

  • if the child is Indigenous, the child’s right to enjoy his or her Indigenous culture.[19]

15.24 When making a parenting order, a court must also ensure that the order does not expose a person to an unacceptable risk of family violence and is consistent with any protection order made under state and territory family violence legislation.[20]

15.25 The Family Law Act contains a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for the child.[21] Shared parental responsibility means that decisions about ‘major long term issues’ must be made jointly by the parents.[22]

15.26 The presumption of equal shared parental responsibility does not apply if the court believes, on reasonable grounds, that a parent has engaged in child abuse or family violence.[23] The presumption may be rebutted by evidence that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.[24]

15.27 Where the presumption of equal shared parental responsibility applies, the court must consider whether the child spending equal, or substantial and significant, time with each parent would be reasonably practicable and in the best interests of the child.[25]

15.28 The Family Court has developed Best Practice Principles for Use in Parenting Disputes When Family Violence or Abuse is Alleged (Best Practice Principles) to give guidance to judicial officers on how to approach parenting proceedings where there are allegations of family violence or child abuse.[26] However, as noted in some consultations and in the Family Courts Violence Review undertaken by Professor Richard Chisholm, the Best Practice Principles are not regularly applied by all judicial officers.[27]

Relocation proceedings

15.29 Relocation disputes are a type of parenting dispute that may arise when one parent with whom a child lives wants to move to another location, which may limit the other parent’s opportunity to spend time with the child. Relocation disputes are determined in accordance with the provisions in the Family Law Act for assessing the best interests of the child. Relocation may be of particular significance in cases involving family violence as the victim may wish to relocate in order to escape from the violence.

Recovery proceedings

15.30 The removal of a child to a location within Australia may give rise to recovery proceedings. Pursuant to s 67U of the Family Law Act, federal family courts are empowered to make orders requiring the return of a child, typically to a parent. Recovery orders authorise or direct a person—generally the Australian Federal Police—to find, recover and deliver the child. In deciding whether to make a recovery order, federal family courts must have regard to the best interests of the child as the paramount consideration.

15.31 The abduction or removal of a child to a location overseas may lead to proceedings under the Convention on the Civil Aspects of International Child Abduction (Hague Convention) as implemented by the Family Law (Child Abduction Convention) Regulations 1986 (Cth).[28] The Hague Convention is a multilateral treaty which provides a procedure for the prompt return of children who have been removed from their country of habitual residence.

Property proceedings

15.32 Part VIII of the Family Law Act deals with disputes about property and spousal maintenance, providing a mechanism for parties to alter property rights that would otherwise apply under common law and equity. Under s 78 of the Family Law Act, a federal family court may make a declaration of the title or rights that each party to a marriage has with respect to property. Section 79 allows the court to alter property rights to effect a just distribution between the parties. In practice, most parties seek orders under s 79 because it confers a wider discretion on the court.[29] The case of In the Marriage of Kennon held that family violence, in some limited circumstances, may be a relevant factor in determining property disputes.[30]

Procedures

15.33 The Family Law Rules 2004 (Cth) set out the procedures that apply in the Family Court. Proceedings in the FMC are governed by the Federal Magistrates Court Rules 2001 (Cth), which adopt some of the Family Law Rules.[31] The FMC also has discretion to apply the Family Law Rules to fill any gap that might be left in the Federal Magistrates Court Rules.[32] Consequently, the court rules and procedures in each court differ in some respects.

15.34 Additional procedural requirements are imposed on parties seeking parenting orders, as opposed to other family law orders. The following section outlines some key procedural events.[33]

Initiating application

15.35 A person commences proceedings in a family court by filing an ‘Initiating Application (Family Law)’ form. The form is the same for the Family Court, the FMC and the Family Court of Western Australia. In the form, the applicant provides details about the parties and any children, and sets out the orders sought. The form also includes a place to provide information about ‘any existing orders, agreements, parenting plans or undertakings to this or any other court’ about ‘family law, child support, family violence or child welfare issues’ concerning any of the parties or children.[34]

15.36 After an initiating application is filed, the other party (the respondent) files a ‘Response to an Initiating Application (Family Law)’ form. In this form, the respondent sets out any disagreement with the facts or information contained in the initiating application, and the alternative orders sought.

Compulsory family dispute resolution

15.37 Both the Family Court and the FMC require parties seeking parenting orders to participate in family dispute resolution (FDR) before commencing court proceedings. In FDR, an independent FDR practitioner assists the parties to resolve parenting disputes, through mediation, conciliation or other means. Parties who participate in FDR obtain a s 60I certificate, which must be attached to the initiating application.[35] Information disclosed in FDR is admissible in court proceedings only in very limited circumstances.[36]

15.38 There are five different types of s 60I certificate, two of which have particular relevance to family violence. A certificate under s 60I(8)(aa) is issued where the FDR practitioner considers that FDR would not be appropriate, bearing in mind the matters set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. These matters include violence, the safety of the parties, inequalities of bargaining power and the risk of child abuse.[37] Because it may not always be apparent that there are risk factors until FDR is under way, s 60I(8)(d) provides for a certificate to be issued where a person begins FDR but the practitioner considers that it is inappropriate to continue.

15.39 It is possible for parties to bypass FDR by arguing one of the exceptions to obtaining a s 60I certificate, including where there are reasonable grounds to believe there has been, or there is a risk of, child abuse or family violence.[38] Parties that rely on this exception must satisfy the court that they have received information from a counsellor or FDR practitioner about services and options available in cases of abuse and violence.[39] In both courts, a registrar will usually determine if the requirements for an exception have been met.

Notice of Child Abuse or Family Violence (Form 4)

15.40 A party who alleges that a child has been abused or is at risk of abuse must file and serve a Notice of Child Abuse or Family Violence (Form 4).[40] The Family Law Rules also require that a Form 4 be filed if there are allegations that there has been, or there is a risk of, family violence involving a child, or a member of the child’s family.[41] In the form, parties can provide details about the family violence or child abuse, or the risk of such violence or abuse.

15.41 Under the Family Law Act, once a Form 4 is filed, the court must consider making orders to enable the parties to obtain appropriate evidence, and to protect the child or any party to the proceedings.[42]

Affidavits and other documents

15.42 An affidavit setting out the facts of the case can form part of the evidence before the court. In the Family Court, parties are only to file affidavits if they seek interim or procedural orders.[43] A different rule applies in the FMC, where the initiating application and response must be accompanied by affidavits.[44]

15.43 Parties to parenting proceedings in either court are required to file copies of any protection orders made under state or territory family violence legislation that affect the child or a member of the child’s family.[45] This is usually done by attaching a copy of any orders to the initiating application.

Procedural hearings

15.44 In the Family Court, the first hearing is usually before a registrar and deals with procedural matters. In parenting proceedings, the registrar can refer the parties to the Child Responsive Program.[46] The program involves meetings between the parties and a family consultant assigned to the case. The family consultant may also meet with any children, if appropriate. The objective of the program is to encourage parents to focus on the needs of their children when determining parenting arrangements, and to reach agreement about the parenting arrangements that support the best outcomes for the children.[47]

15.45 The family consultant also screens for family violence. Where there are concerns about family violence, the family consultant may take protective action, including notifying relevant child protection authorities. The family consultant provides the parties, their legal representatives and the court with a written report of the main issues affecting the family.[48] The Child Responsive Program differs from FDR in that the information gathered in meetings in the program is admissible in court.

15.46 If settlement is not reached, the registrar may conduct further procedural hearings to prepare the matter for hearing before a judicial officer. In addition to case management directions, at least 28 days before the final hearing, parties to parenting proceedings must complete a parenting questionnaire, which includes questions about family violence and child abuse, alcohol and drug use, and the details of the parties’ current living and parenting arrangements. This information can be admitted as evidence before the court.[49]

15.47 In the FMC, the first hearing is usually before the Federal Magistrate assigned to the case. The Federal Magistrate can make a variety of orders about the conduct of the proceedings, including referring the parties to other forms of dispute resolution[50] or a conciliation conference.[51] While there is no Child Responsive Program in the FMC, the court can order parties to meet with a court-appointed family consultant at a Child Dispute Conference.

15.48 An independent children’s lawyer may be appointed to represent the best interests of a child in the proceedings on the application of any of the parties or an organisation concerned with the child’s welfare, or on the initiative of the court.[52]

Trial

15.49 Both the Family Court and the FMC adopt a ‘less adversarial’ approach when conducting child-related proceedings.[53] This means that the proceedings are conducted with as little formality as possible, and the judicial officer actively directs the conduct of the proceedings.[54] In addition, at any point in the trial, either court may refer parties to FDR or counselling.

15.50 Either court may order that a court-appointed family consultant prepare a family report if the care, welfare or development of a child is relevant to the proceedings.[55] The court may also appoint an expert witness to prepare a report on the family.[56] In determining whether to order a family report, the FMC may take into account allegations of family violence or child abuse.[57] In the Family Court, the Best Practice Principles suggest a number of matters that the court may direct the family report writer or expert witness to address in cases where family violence or child abuse is alleged, including:

  • the impact of the family violence or abuse;

  • the harm, or risk of harm, to the children;

  • any benefits if the child spends time with the parent against whom the allegations are made; and/or

  • whether the safety of the child and the parent alleging the family violence or abuse can be secured if there is contact with the person against whom allegations have been made.[58]

Interim hearings

15.51 Both the Family Court and the FMC can make orders on an interim basis pending final orders. In some circumstances, interim orders can be made without notice to the other parties to the proceedings, including where there are family violence and child abuse concerns.

Consent orders

15.52 Consent orders are orders agreed to by the parties about parenting arrangements or other issues in dispute. The orders must be put before the court, which will consider making formal orders that bind the parties. Parties may apply for consent orders at any stage of proceedings in the Family Court and the FMC.

[11] R Chisholm, Family Courts Violence Review (2009), 53.

[12] Family Court of Australia, Protocol for the Division of Work between the Family Court of Australia and the Federal Magistrates Court as at 29/01/2010 (2010) <www.familycourt.gov.au> at 22 February 2010.

[13] Access to Justice (Family Court Restructure and Other Measures) Bill 2010 (Cth).

[14] ‘Federal family courts’ is used to refer to the Family Court of Australia and the Federal Magistrates Court. ‘Family courts’ also includes the Family Court of Western Australia.

[15]Family Law Act 1975 (Cth) s 64C.

[16] Ibid s 64B(2).

[17] Ibid s 60CA.

[18] Ibid s 60CC(2).

[19] Ibid s 60CC(3).

[20] Ibid s 60CG.

[21] Ibid s 61DA(1). As noted in Ch 1 and discussed below, this provision has been the subject of criticism.

[22] Ibid s 65DAC.

[23] Ibid s 61DA(2).

[24] Ibid s 61DA(4).

[25] Ibid s 65DAA.

[26] Family Court of Australia, Best Practice Principles for Use in Parenting Disputes When Family Violence or Abuse is Alleged (2009).

[27] R Chisholm, Family Courts Violence Review (2009). The Chisholm Review recommended that the family law courts review the extent to which judicial officers in the Family Court of Australia and the Federal Magistrates Court use and benefit from the Best Practice Principles and consider any measures that might lead to the Principles becoming more influential: Rec 4.8.

[28] Relevant aspects of the Hague Convention are set out in Ch 2.

[29] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [12.28].

[30]In the Marriage of Kennon (1997) 139 FLR 118.

[31]Federal Magistrates Court Rules 2001 (Cth) sch 3.

[32] Ibid r 1.05(2).

[33] A detailed overview of the practices and procedures of the Family Court and FMC in parenting cases raising issues of family violence appears in R Chisholm, Family Courts Violence Review (2009), apps 3, 4.

[34] Family Court of Australia, Initiating Application (Family Law) <www.familycourt.gov.au/> at 9 February 2010, 6.

[35]Family Law Act 1975 (Cth) s 60I(7). FDR is discussed in Part F.

[36] Admissibility of information disclosed in FDR is discussed in Ch 22.

[37]Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25.

[38]Family Law Act 1975 (Cth) s 60I(9)(b).

[39] Ibid s 60J.

[40] Ibid s 67Z.

[41]Family Law Rules 2004 (Cth) r 2.04B.

[42]Family Law Act 1975 (Cth) s 60K(2).

[43]Family Law Rules 2004 (Cth) r 5.02.

[44]Federal Magistrates Court Rules 2001 (Cth) r 4.05.

[45]Family Law Act 1975 (Cth) s 60CF; Family Law Rules 2004 (Cth) r 2.05, which also applies in the FMC: Federal Magistrates Court Rules 2001 (Cth) sch 3.

[46]Family Law Rules 2004 (Cth) r 12.03(5).

[47] R Chisholm, Family Courts Violence Review (2009), 224.

[48] Ibid, 224–226.

[49] Ibid, 229.

[50]Federal Magistrates Court Rules 2001 (Cth) r 10.01.

[51]Federal Magistrates Act 1999 (Cth) s 26. Conciliation conferences are more likely to be part of financial proceedings rather than parenting proceedings: see R Chisholm, Family Courts Violence Review (2009), 262.

[52]Family Law Act 1975 (Cth) s 68L.

[53] Ibid s 69ZN.

[54] Ibid s 69ZN.

[55] Ibid s 62G.

[56] Ibid s 69ZX(1)(d).

[57]Federal Magistrates Court Rules 2001 (Cth) r 23.01A(2).

[58] Family Court of Australia, Best Practice Principles for Use in Parenting Disputes When Family Violence or Abuse is Alleged (2009), 5–6.