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Arrangements for children

The Family Law Act 1975 (Cth) encourages parents to resolve disputes without going to court and, where possible, to have cooperative and shared parenting after separation.

Family law proceedings for all children, whether their parents are married or not, are covered by the Family Law Act 1975 (Cth) [Part VII] and all references in this section are to this Act unless stated otherwise.

Under the Act each parent has parental responsibility for their children until they attain the age of 18 years (or earlier if the child marries). This responsibility is not diminished by any orders made in respect of the parenting of the child except to the extent specifically provided in the order.

For a list of family dispute resolution services in South Australia, see the Family Dispute Resolution Provider Register maintained by the Commonwealth Attorney-General's Department.

If a court application is necessary, the Federal Circuit Court or the Family Court can deal with matters in relation to children. See Which Court?

The Commonweath Attorney General's Department have a comprehensive guide to Parenting Orders available here:

https://www.ag.gov.au/Publications/Documents/Parenting-orders-what-you-need-to-know/Parenting-orders-what-you-need-to-know.pdf

Coming to an agreement

Most separating parents are able to decide between themselves where the children will live and other parenting issues without taking the matter to court. While this can be a difficult and emotionally draining experience, solutions reached in this way usually suit everybody better than a decision imposed by a court. Court battles over children are often very bitter, drawn out and expensive. Parents are also often better able than a court to work out what arrangements suit their children.

A Family Law Court decision that appears to leave one side the winner and the other the loser also increases the bitterness between the parties. This can be avoided if the parents are able to agree, without the intervention of the Court, about the most satisfactory living and other arrangements for the children.

In any event, everyone applying to the Family Law Courts for a parenting order must attend, or attempt to participate in, family dispute resolution — unless their situation fits one of the exceptions set out in the Family Law Act 1975 (Cth).

An application to the Family Law Courts for a parenting order must include a certificate issued by a family dispute resolution practitioner [s 60I(7)]. The certificate will say one or other of the following:

  • that the applicant did not attend family dispute resolution but that their failure to do so was due to the refusal or failure of the other party to attend
  • that the applicant did not attend family dispute resolution because, in the opinion of the practitioner, it would not be appropriate for them to do so
  • that the applicant attended family dispute resolution and all attendees made a genuine effort to resolve the issues in dispute, or
  • that the applicant attended family dispute resolution but that either they or the other party did not make a genuine effort to participate

A certificate from a family dispute resolution practitioner is not required where:

  • any of the people involved applied before 1 July 2007 for a parenting order for that particular child or children
  • the applicant is seeking a consent order (an order where both people have made an agreement)
  • the application is in response to an application made by another person
  • the situation is urgent, for example a child has not been returned or is missing
  • one or more of the people involved cannot go to family dispute resolution because of ‘incapacity’ (which includes a person being unwell or living with a disability) or they live too far away from a family dispute resolution service
  • there are reasonable grounds to believe that there has been (or there is a risk of) abuse of the child or family violence
  • a court order made in the previous 12 months has been broken and the court finds that the person who broke it has shown a serious disregard for their obligations under the order

The court must still look at making an order that the persons involved go to family dispute resolution even if a person can prove one of the above exceptions applies to them.

Dispute resolution is about people coming together to talk about their differences and trying to agree. This can happen with all the people involved talking in the same room, or it may be able to happen separately if people do not wish to see each other. Where children are involved, the aim of family dispute resolution is to reach an agreement about what is in the best interests of the children.

Consent orders enable the parenting plan to become legally binding.

For a list of family dispute resolution services in South Australia, see the Family Dispute Resolution Provider Register maintained by the Commonwealth Attorney-General's Department.

Who can provide a Family Dispute Resolution certificate?

Only registered Family Dispute Resolution Practitioners can provide certificates establishing whether or not dispute resolution has been attempted. Whilst there are many services that can provide family dispute resolution such as mediation and counselling, not all are registered practitioners. The main agencies which provide these services such as the Family Relationships Centres, Relationships Australia and Centacare are registered. See the online Family Dispute Resolution Provider Register.

What happens if we agree about the children?

Where an agreement has been reached there is no need for a family law court to ratify the decision and no formal orders are required. Agreements can be verbal, but parents are encouraged to prepare parenting plans to help avoid disputes. Parenting plans are written agreements between parents regarding arrangements for a child and assistance with these can be provided by a Family Relationship Centre or other accredited family dispute resolution service.

Is family dispute resolution right for every situation?

Family dispute resolution may not be right for every situation. Examples of instances in which family dispute resolution is not recommended are:

  • where there is family violence or child abuse, or a risk that these will happen
  • where one person cannot make decisions on an equal basis with the other because they feel intimidated or unsafe
  • in urgent situations, for example, if children have not been returned from a visit, or if one party thinks that the other might take or damage property that they are entitled to
  • where one person refuses to participate
  • where the ability of one of the parties to participate is affected by a mental illness or a drug or alcohol abuse problem

If you cannot make decisions equally with your ex-partner because you feel intimidated or unsafe, or there has been family violence you should tell the family dispute resolution practitioner immediately.

Is family dispute resolution confidential?

What is said during family dispute resolution sessions is normally confidential and not admissible in court. However, a family dispute resolution practitioner may (but does not have to) give information to the court if they believe that to do so:

  • is necessary to protect a child from harm (both physical and psychological)
  • is necessary to protect someone’s life or health or property
  • may prevent a crime involving violence or threats of violence or report a crime involving threats or violence
  • will assist a lawyer independently representing a child’s interests.

Family dispute resolution and legal aid

If you apply for legal aid, you may be referred to Family Conferencing, a form of dispute resolution provided by the Legal Services Commission. At least one party must be eligible for legal aid to participate in a family conference. Usually, both parents and their lawyers are present. Agreements made may then be made into legal orders.

For more information see our pamphlet on Family Law Conferencing.

If you are not eligible for legal aid, you can go to a Family Relationship Centre or other family dispute resolution provider.

Are parenting plans legally binding?

Without being filed in a family law court as consent orders, parenting plans have no legal force. After reaching an agreement some people prefer to apply to the court for a binding order. This can be done by preparing a consent order. The Family Court has a Consent Order Kit but you should get independent legal advice first.

We had a parenting plan but can no longer agree — can we still apply to the court for orders?

Yes, you can still make an application to a family law court for parenting orders. However, the first stage of the process for all applicants will involve attending mediation. After the 1st July 2007 all applicants for parenting orders will need to provide with their application a certificate issued by a family dispute resolution practitioner stating that they have attended or tried to attend family dispute resolution, or, in the opinion of the practitioner, do not need to go.

I want to change an order — what do I need to do?

If both parents agree on how it should be changed, an application can be made for consent orders, unless the original orders say that any variation must involve the court.

Where only one parent seeks a variation an application must be made to the court with evidence to justify the variation.

Mediation and counselling

Mediation is a way of resolving disputes without going to court. Mediation is a voluntary process and works best when both sides are on an equal footing - it is generally not suitable where there has been family violence or where both people do not feel totally safe.

The role of a mediator is to help the parties discuss issues, consider options and work out agreements that suit them both. Mediators do not give advice so it is important to get legal advice before going to mediation.

A mediated agreement may be registered with the court to make it legally binding. This is done using the Family Court Consent order kit. It is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.

Counsellors give advice and assistance to couples who are considering separation or who are finding it difficult to cope with separation. Counsellors can also help to resolve differences over the rearing of and contact with children. Counselling may help resolve a problem without going to court.

Counselling and mediation services are offered by organisations such as Relationships Australia and Centacare.

Before commencing court action, parties to a dispute must attempt family dispute resolution (which may take the form of mediation or counselling), unless they come under an exempt category.

Applying for parenting orders

What is a parenting order?

Regardless of their relationship status (i.e. married, never married, separated or divorced) all parents have legal responsibility for their children aged under 18, unless a family law court orders otherwise. What follows is a brief description of the types of orders that the Family Law Courts can make with regard to children. All orders relating to children are known as 'parenting orders'. Parenting orders cover all aspects of care and welfare arrangements for children.

Applications for parenting orders can be made in the Federal Circuit Court or the Family Court.

Terms such as “contact” and “residence” were used previously but the court now uses the terms “spends time with” and “lives with”.

If you have a court order that was made prior to the 1st July 2006 it will use the terms “residence” and “contact” and, unless you make a new agreement or the court makes a new order, these changes will not affect how your orders work.

Other specific types of parenting orders include:

  • Location Order — to find where a child is living
  • Recovery Order — to return a child to a party

Equal shared parental responsibility

When the court makes orders concerning children it must always consider the ‘best interests of the child’ [Family Law Act 1975 s 60CA]. The court is to presume that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ [s 61DA]. This is a starting point for the court’s decision-making process and the court may determine, in the circumstances of an individual case, that shared parental responsibility is not appropriate.

Equal shared parental responsibility means that both parents share the right to make major long term decisions about the children of the relationship. If a parenting order says that both parents have shared parental responsibility, then the parents should talk to each other and make a genuine effort to make major long term decisions regarding the children themselves. Shared parental responsibility does not include day to day decisions about children such as what they wear.

Equal time

Equal shared parental responsibility is different to a child spending equal time with both parents. If the court presumes that the parents should have equal shared parental responsibility, it must look at whether spending equal time with each parent would be in the child’s best interests and also whether it is reasonably practical.

Substantial and significant time

Where equal time is not appropriate, the court must look at whether an order for ‘substantial and significant time’ is a practical alternative and in the best interests of the child. ‘Substantial and significant time’ means that the child spends time with a parent on weekends, holidays and weekdays so that the opportunity exists for time to be spent together in daily routine activities and also for events that are important to the child such as sporting events, birthdays and school activities.

In deciding whether an order should be made for either equal time or substantial and significant time, the court will consider the following:

  • how far apart the parents live from one another
  • each parent’s ability to care for the child currently and in the future
  • the ability of both parents to talk to each other and resolve any difficulties they might face with parenting arrangements, both currently and in the future
  • how either arrangement will affect the children
  • anything else that the court thinks is important.

The Commonwealth Attorney General's Department have a comprehensive guide Parenting Orders - what you need to know PDF

Who can apply for parenting orders?

Most disputes concerning children are between the parents of the children. However, anyone who is concerned about the care, welfare and development of the child may apply [Family Law Act 1975 (Cth) s 69C(d)].

A wide range of other people may be so concerned about the children including:

  • grandparents;
  • aunts and uncles; and
  • new partners of either parent.

Grandparents may find National Legal Aid's Fact Sheet Having a Grandchild in Your Care helpful.

For the court to have jurisdiction over a child, the child must be present in Australia, be an Australian citizen or ordinarily residing in Australia and so must one of the parties to the application. The court does not have the power to make any orders in relation to a child who is outside Australia, including situations of international child abduction.

Can children apply?

Children can also apply for parenting orders (not including child maintenance orders) from the Family Law Courts [Family Law Act 1975 (Cth) ss 64B and 65C(b)].

A child who applies for parenting orders must have a case guardian (also known as a next friend), unless the court is satisfied that the child understands the nature and possible consequences of their case and is capable of conducting it. If a child applies without a case guardian, the court may appoint one [Family Law Rules 2004 r 6.08]. Any adult that has no interest adverse to that of the child and who can fairly and competently conduct the case for the child may consent to being a case guardian [r 6.09].

The court may order the case guardian to pay costs [r 6.13] or that costs of a case guardian be paid by another party to the proceedings or from the income or property, if any, of the child [r 6.14].

What needs to be done before applying?

Before any action is taken in the Family or Federal Circuit Court, certain steps must usually be taken (called pre-action procedures), unless the matter is exempt or potentially exempt from this requirement. These steps are designed to ensure that reasonable attempts are made to resolve the matter without going to court.

Family dispute resolution required for all parenting order applications

Prior to commencing an application for parenting orders, whether in the Family Court or the Federal Circuit Court, it is necessary for both parties to attempt to resolve their dispute by family dispute resolution unless an exemption applies. A certificate must be issued by a registered family dispute resolution practitioner indicating that mediation has been attempted. Exemptions apply in cases where the application is an urgent one (e.g. recovery of a child), where allegations of child abuse or family violence have been made and where there is a genuinely intractable dispute (e.g. where one person refuses to negotiate).

Pre-action Procedures in the Federal Circuit Court

Parenting order applications

All applications for parenting orders in the Federal Circuit Court are now required to follow the pre-action procedures followed in the Family Court (see below).

Non-parenting order applications

Pre-action procedures that are required before taking action in the Family Court do not apply in the Federal Circuit Court for non-parenting order applications.

Pre-action Procedures in the Family Court

For both parenting order applications and non-parenting order applications you must complete certain pre-action procedures before you can file an application in the Family Court. Family Law Rules 2004 (Cth) r 2.02 sets out which forms you need to file. See also the Family Court brochure on Pre-Action Procedures for Parenting Cases.

In most cases, once an application has been lodged in the Family Court it will be necessary to serve copies of any application and supporting documents on the other person.

The pre-action procedures are set out in schedule 1 to the Rules. They require the following.

  • The applicant must give a copy of the pre-action procedures to the other party and invite them to participate in primary dispute resolution.

  • Parties (unless exempt) must participate in dispute resolution services, such as mediation, counselling, negotiation, conciliation or arbitration.

  • If dispute resolution is unsuccessful, the applicant must give notify the other party of their intention to commence an application in writing, stating:
  • the issues in dispute,
  • the orders that will be sought if a case is started, and
  • a genuine offer to resolve the issues.
  • The letter must state how long the other party has to respond and a period of at least 14 days must be allowed.

  • The other party must reply to the letter within the required time, stating whether they agree to the offer or not. If not, they must state in their letter:
  • the issues they believe are in dispute,
  • the orders they will seek if a case is started, and
  • a genuine counter-offer to resolve the matter.
  • The letter must state how long the other party has to respond and a period of at least 14 days must be allowed.

  • Both parties must comply, as far as practicable, with the duty of disclosure set out in Chapter 13 of the Rules. [See also the Family Court brochure Duty of Disclosure].

  • Unless exempt from these procedures, a party should only start court proceedings if the other party does not respond to a notice of intention to start a case, or if no agreement can be reached after a reasonable attempt to settle the matter.

Anyone who does not comply with these requirements (unless exempt) risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management.

The court expects parties to take a sensible and responsible approach to pre-action procedures and parties must not use the pre-action procedure for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay). Parties must not raise in their correspondence irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position [see schedule 1 to the Rules].

How does one apply?

Applications for both the Federal Circuit Court and the Family Court are filed in the Family Court Registry. (Applications for consent orders can only be filed in the Family Court.) An original and two copies of the application must be filed.

The court keeps the original application and returns to the applicant the other stamped copies, on which the hearing date has been noted. A stamped copy of the application must be served on the respondent (the person against whom the proceedings are being taken). If the application is to be contested the respondent must prepare a document called a Response.

Forms are available from the Family Law Court and the Federal Circuit Court websites.

What will it cost?

For information on fees in the Family Law Court and Federal Circuit Court, and possible reduction in fees - see the Family Court's fee information on their website which contains details of fees in both courts.

Chapter 19 of the Family Law Rules 2004 (Cth) describes the costs solicitors may charge for work done in family law proceedings in the Family Court. Under Rule 19.18, costs may be charged in accordance with a costs agreement or, if there is no costs agreement, in accordance with the Itemised Scale of Costs [see Family Law Rules 2004 (Cth) sch 3].

Costs agreements in relation to work in the Family Court are permitted in accordance with rules 19.14 and 19.15. When making a costs agreement with a client, a lawyer must advise the client to obtain independent legal advice about the costs agreement. If the client agrees to enter into a costs agreement, the costs to be charged must be set out in a written agreement signed by the client and the solicitor.

How soon will the court hearing take place?

Unless the matter is urgent, it is first heard four to six weeks after the application was filed. The parties can represent themselves, and anyone over the age of 18 years can attend.

In certain emergency situations - for example, when one parent fails to return the child to the other parent in accordance with a court order, parenting plan or the child’s long term living arrangements - an application for an urgent hearing can be made.

Limited police involvement

In these cases it should be noted that, even if the other party is breaching existing court orders, the police will not get involved unless there is another court order authorising them to do so. If you are concerned about a child’s welfare you can ask the police to check on the child, but usually they cannot do more than that without the court specifically authorising them to. You therefore need to apply for an urgent hearing.

Urgency

The application must be filed with the court and served on the other party immediately, and the matter is heard as soon as possible.

Applications forms and what orders to ask for

If there are no current court proceedings, you need to use an Initiating application form. Most new family law applications go to the Federal Circuit Court. You will have to ask for final orders (for example, that the child lives with you) as well as interim orders. The interim orders you should ask for include an order that the application be heard urgently. Other orders you should seek could include orders that the other person return the child immediately; that the parties be restrained from changing the child’s place of residence and that the child’s name be added to the Airport Watch List. You will need to file an Affidavit with your application, in which you explain why the matter is urgent and why you are asking for those orders.

If there is already a case going through court, the form to use is Application in a case, together with an Affidavit.

Ex parte hearings

In cases of extreme urgency - for example, where it is feared that a child may be taken out of the country – you can ask the court to make an order before you have served the application on the other party. This means that the other party is not given notice of the hearing, so the hearing is held ex parte (in the absence of the other party). The court usually wants to hear from both parties, so ex parte orders are rarely made.

Passports and police warrants

As with any application, the court can order the surrender of passports (including the child's), and may issue a warrant to authorise the police to stop and search any vehicle, vessel or aircraft, or enter and search any premises, in order to take possession of a child.

To finalise a matter

Ordinarily, a matter takes about 18 months to progress from application to trial.

If the court is unable to hear the matter at the time it is listed for trial it may be put off for a further two or three months.

There is however provision for a matter to be listed for trial urgently in certain circumstances. The procedure is to write to the Judges Listing Committee requesting an urgent listing and setting out convincing reasons. Of course there is often a wide gap between the court's perception of urgency and that of the parents. If the Committee is satisfied that the case is urgent, they will give the matter an early pre hearing conference date leading to a trial in a much abbreviated time.

In general, an urgent trial listing should not be expected where the issue of urgency can be adequately addressed by interim orders addressing the situation until trial.

How does the court make decisions?

The Court applies part VII of the Family Law Act 1975 (Cth), which relates to children.

Section 60B of the Act sets out the main aim and principles of part VII.

The main aim of the part is to ensure the best interests of children are met by:

  • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
  • protecting children from physical or psychological harm (from being subjected to, or exposed to abuse, neglect or family violence)
  • ensuring that children receive adequate and proper parenting to help them achieve their full potential
  • ensuring that parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children

The principles underlying that main aim are:

  • children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together
  • children have a right to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children
  • parents should agree about the future parenting of their children
  • children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)

Under s 60CA of the Family Law Act 1975 (Cth) the Court’s paramount consideration in making any parenting orders must be the best interests of the child.

How does the Court work out what's in the best interests of the child?

When determining what's in the best interests of the child the Court must consider a set of primary considerations and a set of additional considerations [s 60CC].

Primary considerations

  • the benefits of the child having a meaningful relationship with both parents; and
  • the need to protect the child from physical or psychological harm (from being subjected to, or exposed to, abuse, neglect or family violence)

In applying these two primary considerations the Court must give greater wight to protecting th child from pyhsical and psychological harm [Family Law Act 1975 s 60CC (2A)].

Additional considerations

  • any views expressed by the child
  • the nature of the child’s relationship with:
    • each parent
    • other persons, including grandparents and other relatives
  • the extent to which each of the parents has taken or failed to take the opportunity to communicate and spend time with the child and particiipate in making decisions about major long-term issues relating to the child
  • the extent to which each of the parents has fulfilled or failed to fulfill the parent's obligations to maintain the child
  • likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
    • either of their parents
    • any other child
    • other person, including grandparents and other relatives, with whom the child has been living
  • the practical difficulty and expense of a child communicating and spending time with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
  • the ability of each of the child's parents and any other person, including grandparents and other relatives, to provide for the needs of the child, including emotional and intellectual needs
  • the maturity, sex, lifestyle and background (including culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child the Court thinks are relevant
  • the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
  • any family violence order involving the child or the child’s family and any relevant inferences that can be drawn from it
  • whether it would be preferable to make the order least likely to lead to further proceedings in relation to the child
  • any other fact or circumstance the Court thinks is relevant

What needs to be disclosed?

Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner. This duty starts at the pre-action procedure stage before the case commences and continues until the case is finalised.

In South Australia, a Notice of Risk document must be filed with an initiating application to the Federal Circuit Court. This document deals with possible child abuse or neglect, family violence or other risks to a child.

In attempting to resolve a parenting disupte, parties should also, as soon as practicable, exchange copies of documents in their possession relevant to an issue in dispute (e.g. medical reports, school reports, letters, drawings, photographs).

Any documents that have been disclosed can only be used for the purpose of resolving the dispute for which they were disclosed.

What about the children's views?

In making any decision about a child the Court will take into account any views expressed by the child, but the weight the Court will give to the child's views will depend on any factors the Court thinks is relevant, such as the child's maturity and level of understanding.

There is no rule that says that children of a particular age can make independent decisions about where they may live. There are a number of reasons for this, including the fact that age does not necessarily always match maturity.

However, despite this a number of practical issues will invariably arise, particularly with children aged 16 and over. For example, a child of 17 years is unlikely to be able to be made to follow a parenting order about where they should live. In these circumstances, resorting to the Court to enforce an existing order may be a fruitless task.

See also, Parental Authority - Case Study which explains the decision in the Gillick case, a children's rights case regarding at what age children are mature enough to make decisions without their parents.

It should be noted that children do not give evidence to the Court, nor will the Judge ordinarily see or speak to the children. Rather, the children's wishes are ascertained via a family assessment, or through the appointment of an Independent Children's Lawyer.

It is important to bear in mind that children often express to each parent a wish to live with them, and that they may do so out of concern to maintain close contact with that parent and not to lose them from their lives, rather than with an adult understanding of the consequences.

Do the children get a lawyer?

The court may order (of its own motion, or when a child or any other person or organisation concerned with the child's welfare applies) that the child's interests be independently represented [Family Law Act 1975 (Cth) s 68L] and ask the Legal Services Commission to arrange the representation.

In the case of Re K (1994) FLC 92-461 the Full Court of the Family Court laid down an extensive list of guidelines for cases in which an independent children’s lawyer should be appointed. These stipulate that a lawyer may be appointed where:

  • there are allegations of abuse of the child
  • there is intractable conflict between the parties
  • the child is alienated from one or both parties
  • there are cultural and religious differences between the parents
  • there are concerns about the mental or physical illness or personality disorder of either parent
  • neither party seems to be a suitable residential parent for the child
  • a child of mature years indicates that they do not wish to have contact with one parent
  • there is a threat of removal of the child from the jurisdiction
  • the determination of the case may involve separation of siblings, or
  • neither party is represented

It is well established that the independent children’s lawyer does not act on instructions from the child and in this sense, is not the child's lawyer. Rather, they gather evidence to be presented to the court to assist it in determining where the child's best interests may lie. The independent children’s lawyer may seek any orders he or she considers to be in the best interests of the child, and may choose to support or oppose the making of orders proposed by one or other parent. Naturally, this can give rise to dissatisfaction on the part of the other parent and the child. In general it is not considered desirable for an independent children’s lawyer to interview children who have already been extensively interviewed for example by doctors, counsellors, social workers, psychologists etc.

What evidence will the court consider?

At trial, parties do not normally give oral evidence in chief. Rather evidence is presented by way of affidavits which must be sworn, filed and served on the parties in advance of the trial. Directions for the dates for completing this task are usually given at the pre hearing conference and a compliance check ensues.

The affidavit sets out the evidence in chief of each witness proposed to be called by a party. In the case of the applicant or the respondent their affidavit should be comprehensive. The following matters should normally be addressed:

  • the applicant's personality and background.
  • their schooling and occupation.
  • their health including their mental health.
  • their proposals for where the child will live and spend time.
  • the arrangements they propose for the child's care and education.
  • the arrangements they propose in respect of relevant moral issues, religious matters and cultural background issues particularly where the child is of Aboriginal or Torres Strait Islander descent.
  • their evidence in relation to any allegations of family violence.
  • details of any subsequent marriage or de facto relationship in which they have been involved which could be relevant in the proceedings, for example, details of any re-marriage and step children.
  • issues relating to the children's stability and the status quo. If it is to be changed, they may wish to set out why this would be in the child's best interests. However, they should stick to presenting the facts, rather than arguing their case.

As with all affidavits, the deponents should normally stick to factual matters and should not contain speculations or expressions of opinion. They should also be free of hearsay reports, that is, evidence of things which are not within the parent's personal knowledge but have been gleaned from other sources such as second hand reports, the media, text books etc. As a parent is not considered by the court to be an expert in respect of their child, they should also not include any opinion material about the child's mental or physical health etc. It is sometimes difficult to draw the line, for example it is not unusual for affidavits to contain matter which could be considered comment, for example, on the other party's parenting skills, truthfulness etc.

Family assessments/counselling reports

Section 62G(2) of the Family Law Act 1975 (Cth) provides for the court to direct a family consultant (court counsellor) to make a report. In making a report, the consultant will commonly interview each parent and the child individually, unless the child is of an age or maturity where this is inappropriate. Commonly also the consultant will observe interactions between the child and each party. Conversations with a consultant are not confidential. A report is prepared for the court and circulated to the parties. Although the consultant's opinion is not binding on the court and is just another opinion to be considered with the rest of the evidence, as it is an independent assessment of the situation it is generally persuasive.

Because of the high demand for reports, it is not practicable to obtain family assessment reports on an interim basis and they can normally only be ordered at a pre-hearing conference. For this reason, the parties sometimes arrange for a family assessment by a private practitioner in order to have an early report. Where the parties agree, they can do this without there being an independent children's lawyer appointed, but if agreement cannot be reached then an application for an independent children's lawyer to be appointed may result in the representative arranging a family assessment. Parents are normally required to contribute to the cost of the family assessment, and where they are unable to do so and are not legally aided, the report ordered by the court is an alternative.

Psychological reports

Although a party can apply to the Family Court that a child be referred for a report relating to psychiatric or psychological assessment, the unnecessary and unjustified exposure of a child to this kind of assessment is discouraged by the court. Referrals of children to psychiatrists or psychologists are limited to appropriate cases only, and the court can give any direction relating to the assessment that appears necessary having regard to the welfare of the child. Where a direction of the court has not been obtained, the court can refuse to admit the report in evidence unless all parties gave written consent to the referral. Where someone is threatening to obtain a psychological assessment it may be possible to obtain an injunction preventing it.

Expert witnesses

As part of the pre-action procedures, a party may require that information be sought from an expert witness. The rules about instructing and obtaining reports from an expert are in part 15.5 Family Law Rules 2004 (Cth).

In summary:

  • An expert must be instructed in writing and must be fully informed of her or his obligations.
  • Where possible, parties should seek to retain an expert on an issue only where an expert’s evidence is necessary to resolve the dispute.
  • Where practicable, parties should agree to obtain a report from a single expert instructed by both parties.

If separate experts’ reports are obtained, reports must be exchanged.

How does the court view alternative lifestyles?

Each individual case is assessed on its merits, and the fact that a parent seeking orders for a child to live with them where they are living in a homosexual relationship or in some alternative lifestyle is not directly relevant. What is relevant is the whole environment and the effect it will have on the child. Factors such as the personality and attitudes of the parties involved in the relationship or lifestyle, the strength of the relationship and the effect the relationship will have on the child will all be considered.

In a Family Court judgment in the case of Schmidt (1979) FLC 90-685, which considered the question of homosexual relationships, Chief Justice Evatt said:

'the ordinary observations of life would lead me to the view that one lesbian relationship could not necessarily be judged by another ... It could be a mistake to regard a person's sexual proclivities as the dominating trait of their personality as if it were something which occupied their sole attention and thoughts. The difficult task always confronting the Family Court is that of searching for the quality of a relationship and in assessing the personality and character of the persons concerned in access and custody matters.'

In determining what is in the best interests of the child the Family Law Courts view homosexual relationships in the same light as heterosexual relationships.

How is paternity determined?

Ordinarily the paternity of a child is acknowledged by both parties. The court will in these circumstances presume paternity [Family Law Act 1975 (Cth) s 69R]. A man is assumed to be a child's father if the man:

  • was married to and living with the child's mother when the child was born [s 69P]
  • has signed a document acknowledging he is the child's father (and has not rescinded it) [s 69Q]
  • cohabited with the child's mother in the ten months before the child was born [s 69R]
  • is acknowledged on the child's birth certificate as the father [s 69T]

Declaration of paternity

Disputes sometimes arise where there is a request for child support or contact. If paternity is at issue in a matter before the Family Court, either parent may ask the court for a declaration of paternity. If satisfied that the relationship exists the court will make an order of paternity. A man wanting to deny a presumption of parentage must prove on the balance of probability that he is not the child's biological father.

DNA paternity testing

Whether contesting or asserting paternity, DNA (Deoxyribonucleic Acid) tests are available which will establish paternity to the satisfaction of the court. DNA is made up of identifiable substances unique to each person, but which include some inherited from parents. DNA testing is accepted as the most definite proof of the physical relationship between humans. It is often referred to as a 'genetic fingerprint' and shows the links between individual body fluids in separate blood samples. The technique used to detect these links is known as DNA profiling. This technique is more effective than blood tests and blood typing because DNA can determine the identity of the parent to within 99.5% as opposed to the process of elimination used in blood typing.

When will the court order DNA testing?

The court does not order DNA testing alone. This can only be done as an ancillary procedure to a parenting application. Thus, orders for DNA testing cannot be made simply to satisfy the curiosity of a parent. They will only be ordered where they are needed in order to determine whether any parenting application is in the best interests of the child concerned.

Costs

Tests are done privately for a fee of around $800. Family Court orders for paternity tests are paid by the person who wants the results as evidence in their case or if on legal aid, the Legal Services Commission may pay. The unsuccessful party will normally be ordered to pay costs. If therefore there is no real doubt about paternity, applicants should be warned against baseless or vexatious applications, as they will be likely to pay the costs.

What if one parent refuses to return the children?

Location and recovery orders are provided for by sections 67J and 67Q of the Family Law Act 1975 (Cth) and cover the situation where a person is prevented from having contact with their children because the other parent has taken the children without disclosing their whereabouts. In appropriate circumstances the court can order that any body which may have knowledge of the other parent's whereabouts to disclose this information to the court. Such orders are commonly made to obtain information from Centrelink, the ATO, banks etc.

Parenting orders required for location or recovery order

To apply for a location or recovery order, a person must also apply for a parenting order or have an existing order. If a person has only a parenting plan or verbal agreement about who the children live with and spend time with, he or she will need to apply for parenting orders at the same time as applying for the location order.

Protection for family violence victims

Section 67P provides that any information divulged to the court under a location order must not be provided to the person who applies for the order. Instead, the information is disclosed to other persons such as a lawyer, court official, process server or police officer. This is to protect a victim of family violence from being at risk from a former partner. In the case of an unrepresented party, if a location order is granted, the usual procedure would be for the court to either to supply the information to a marshal who can arrange for the other party to be served, or else to appoint a child representative to contact the other party.

Police powers under recovery orders

The court may order the return of the child by way of a recovery order which will be carried out by the Federal police [Family Law Act 1975 (Cth) s 67R]. As an ancillary power, the police may stop and search any vehicle, vessel or aircraft on which the child is suspected to be. In practice, Federal police may not have the resources at any given time to retrieve a child and this can lead to some delays or to the involvement of State police at the request of Federal police.

Also it should be noted that the police will not normally execute a recovery order unless the parent entitled to the benefit of the order is with them at or near the place where the child is to be recovered. If therefore the child has been taken interstate, the parent seeking the recovery of the child will have to travel interstate at their own expense before the order can be executed. If a parent has no resources from which to make the journey, it may be possible to seek emergency financial assistance from the Department for Child Protection.

Children taken overseas

The Hague Convention provides for the return of children from one member country to which they have been taken, to the member country of their origin. These applications are dealt with by the Australian Central Authority. For more information about making an application for the return of an abducted child to Australia, call the Australian Central Authority on 1800 100 480 or visit the Commonwealth Attorney-General's Department webpage on International parental child abduction, which includes a Guide for applicants - Applying for the return of a child under the Hague Convention. Assistance to complete applications may be available from the International Social Service, call 1300 657 843.

What if one parent wants to relocate?

It is not at all uncommon for one (or both parents) to wish to relocate after a separation. If the relocation will not affect existing or proposed arrangements for children, it is less problematic. When it will affect those arrangements, these cases can be difficult to resolve with fairness to all parties involved.

If considering relocation legal advice is essential. If one parent relocates without the other parent’s consent, the other parent (or person concerned with the care, welfare and development of the child) may apply to the Court for an order that the child be returned. The Court has the power to order a child’s return if it determines that to be in the child’s best interests, and will often do so pending its determination. It is therefore advisable to obtain the other parent's consent and/or a court order permitting the relocation first.

Remember that an attempt at family dispute resolution is usually necessary before applying for parenting orders, including orders relating to relocation, see What needs to be done before applying?

Whilst the Family Law Courts have ruled that relocation cases are not a separate type of case, in determining the best interests of a child, the following is a list of factors that may be considered. This list is by no means exhaustive as each case will be assessed individually according to the circumstances involved.

  • The reason/s why the parent wants to relocate (for example, employment prospects, new partner, family support, to escape family violence) and how these may relate back to the child's best interests, which is the paramount consideration
  • The parent's proposal to ensure the children can still spend time or communicate with the other parent (for example, communication by phone, holiday time with the other parent or even the relocation of the other parent)
  • The ease of travel between the residence of each parent
  • Each parent's attitude to the other parent (for example, where there is evidence of an unwillingness on one parent’s behalf to facilitate the child's relationship with the other parent this can weigh against them)
  • The willingness of others (for example, extended family, parent’s new partners) to facilitate the child's relationship with the other parent
  • The relationship the child has with siblings, half-siblings or other family members and how that would be affected by the proposed relocation
  • The child's age and their wishes

What if one parent dies?

If a parenting order states that a child is to live with one parent and that parent dies, and the parenting order does not say what is to happen in the event of that parent's death, then the surviving parent cannot just require the child to live with him or her [see Family Law Act 1975 (Cth) s 65K]. A parent can appoint someone else to take over as guardian of the child in the event of their death, but this is not in any way binding either, and will merely be taken as an expression of the deceased parent’s wishes.

In the event of a dispute, the surviving parent (or another person such as a relative or friend of the deceased parent who is acting as guardian) may make an application to the Family Law Court's to determine this and any other issues. The application would be decided in the same way as any other, on the basis of all of the circumstances at the time, and with the child's best interests as the paramount consideration.

How long do parenting orders last?

All orders cease when the child turns 18 years, marries, enters into a de facto relationship or is adopted by another person [Family Law Act 1975 (Cth) ss 65H(2) and 65J(2)].

Where the child is adopted by a step parent, parenting orders are not altered unless the Family Caw Courts approved the adoption, see FAMILY RELATIONSHIPS - Adoption.

An order can be varied at any time, but unless there has been a significant change in the circumstances of either of the parents or the child, the court is generally reluctant to change existing orders except by consent of the parties.

What if there is a dispute about costs?

Rules 19.20 - 19.38 of the Family Law Rules 2004 (Cth) set out the process for disputing costs.

Party to party costs

From the 1 July 2008 only disputes about costs between parties (i.e. party to party costs) can be adjudicated by the Family Law Court. Where a party wishes to dispute the costs awarded to or against them a Notice Disputing Itemised Costs Account must be served on the other party within 28 days of being served with the account.

The parties to the dispute must make a reasonable and genuine attempt to resolve the dispute [See r 19.24(2)]. If the dispute cannot be resolved, either party can take it to court by filing the itemised costs account and a Notice Disputing Itemised Costs Account with the court no later than 42 days after the Notice Disputing Itemised Costs Account was served.

Lawyer/client costs

Disputes between lawyers and clients regarding costs are no longer dealt with by the Family Law Courts. Where a person has a dispute with their lawyer regarding costs they must make an application to either the Legal Profession Conduct Commission (see Complaints about overcharging) or to the Supreme Court of South Australia for the resolution of the dispute (see Adjudication of legal costs).

    Arrangements for children  :  Last Revised: Fri May 4th 2018
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