Where to start?
It is always best to try to resolve matters without resorting to a Court Application. At an initial appointment we can discuss with you your options for resolving issues regarding your children. You may then decide to have an informal arrangement with the other parent or you may wish to formalise the arrangement by way of Consent Orders or a Parenting Plan.
A Consent Order is a legal document which sets out the specific Orders that the parents have agreed to in relation to their children’s care arrangements or other specific issues concerning the children such as schooling and travel. It is a document that must be filed in the Family Court Registry along with a second document called an ‘Application for Consent Orders’. We strongly recommend that you make an appointment to see us if you are considering signing or entering into a Consent Order. In our experience it is best if these documents are prepared by an experienced family law solicitor. This will ensure that the Orders that you enter into with the other party are drafted in a way which reflect the agreement made and in a format that will be accepted by the Court.
A Parenting Plan is another option which parties may consider to document their agreement as to care arrangements for children upon separation. A Parenting Plan is a written document signed and dated by both parties. No legal advice is necessary and a Parenting Plan does not need to be prepared or signed by a solicitor. However we strongly recommend that you seek legal advice before signing a Parenting Plan to ensure that it covers the issues in your individual matter. This is especially so as a Parenting Plan is not binding on the parties and cannot be enforced. However a Court must have regard to a Parenting Plan when making an order concerning the care arrangements for the child/ren and a Parenting Plan can override a previous Court Order.
We aim to ensure that you are provided with detailed advice relevant to your individual circumstances. If you would like to discuss any of the above matters in more detail please do not hesitate to telephone Stewart Family Law on 3221 0100 and make an appointment with one of our experienced solicitors.
We understand that it is not always possible to reach an agreement with the other parent and in some matters the circumstances require urgent action. We can advise you as to the Court process at an initial consultation and then assist you in deciding whether your matter is one in which a Court decision is preferable or required, or alternately, whether there is a possibility to negotiate a resolution with the other party.
If your matter is one where you believe a Court Application is necessary, or may be necessary in the near future, then it is likely you will need to obtain a Section 60I Certificate before you can commence Court proceedings. A section 60I Certificate is not required if your circumstances are urgent. More detail can be provided in relation to these circumstances at your initial appointment with one of our solicitors.
Section 60I Certificate
A Family Dispute Resolution Practitioner will issue a Section 60I Certificate when parents are unable to agree at mediation as to what is to happen with the care of their children (or any other specific issues regarding the children such as which school they should attend) or in circumstances where one party refuses to attend mediation or mediation is not appropriate. Many people attend at Family Dispute Resolution Centres for this purpose. Please be aware that it can take a number of weeks to obtain an appointment with the Centres and undertake the Family Dispute Resolution process (and if no resolution at the Centre, then obtain a certificate). Another option is to attend Family Dispute Resolution with a private Family Dispute Resolution Practitioner (FDRP). Although there is a cost involved the process is usually much quicker and you can have your solicitor present if you wish.
Once you have a Certificate and assuming no agreement or resolution was reached through the Dispute Resolution process, then either party can make an Application to the Court seeking Orders in relation to the children. It is important to note that there are circumstances where the Court waives the need for a Certificate (one example is if there there is some urgency requiring an immediate Court Order, for example a Recovery Order if children have been withheld). A certificate is also not required if you are applying for Consent Orders.
What is an Interim Hearing?
It is usual in your Court Application to seek both Interim and Final Orders. The first hearing you will have at Court will be an Interim Hearing. The Interim Hearing may take place on the first Court date or another allocated date after the first Court date. An Interim Hearing is a shorter hearing where the Court makes an “interim” decision that stays in place until there is a further order, for example at a Final Hearing or until the parties resolve the matter by consent. In our experience often once an Interim Order is made it can assist the parties in reaching an agreement without needing to have a Final Hearing.
An Interim Hearing is conducted ‘on the papers’. This means that the Judge will make a decision once they have read all of the evidence that has been filed on behalf of the parties and submissions have been made. This evidence includes the parties Affidavits and any subpoenaed documents. Usually there is no cross examination or evidence given in the witness box at an Interim Hearing (except in exceptional circumstances). In some matters a Family Report may be needed to assist the Court in making a decision or an Independent Children’s Lawyer is appointed (however this depends on the types of issues involved in the matter.) We can provide you with advice regarding whether your matter is likely to be one where the Court will consider the need for a Family Report or Independent Children’s Lawyer. At an Interim Hearing the Judge will read the material and hear submissions from legal representatives (or the parties if they are self-represented). The Court will then make an Interim decision/Order.
The last step – a Final Hearing (Trial)
Once there is an Interim Order the Court will make directions for the future progress of the matter in the Court system – to allow the matter to proceed to a Final Hearing (a Trial). These directions could issue at the same time as the Interim Order or at a later date (that date being decided by the Court). Due to the extremely large number of cases before the Federal Circuit Court and the Family Court, a Final Hearing is usually not listed for a number of months after the Interim Hearing (this could be up to, or longer than, 12 months later). A Final Hearing is where the evidence that has been placed before the Court in the matter to date, by way of Affidavit, is “tested”. This means that the parties are cross-examined along with any witnesses, including any expert witnesses such as a Family Report Writer. A Final Hearing can take anywhere from one day to a number of days depending on the complexity of the issues involved and the number of witnesses who need to be cross-examined. You should be aware that if you have a Final Hearing you may not get a decision from the Court straight away at the conclusion. Sometimes a decision may not issue for some time after (being weeks after, or in some matters months after the Hearing).
A lot of preparation is necessary in the lead up to a Final Hearing to ensure that all of the evidence in support of your case is before the Court. If you are preparing for a Final Hearing we strongly recommend that you make an appointment to see one of our experienced solicitors well in advance of the Hearing date.
We can provide you with advice about what specific Orders you should be seeking in your matter – for example, whether it be an Order to spend time with a child/ren or an Order for a child to live with you (either in a shared situation or full-time).
What is a Family Report?
If the Court orders a Family Report to be prepared in your matter then this is a process whereby both parties and the child/ren (and other important people in the child/ren’s lives such as a partner of one of the parties) is interviewed by a Family Report Writer. If a Family Report is needed then it will usually be obtained before an Interim decision is made by the Court. It may later be updated before a Final Hearing depending on the issues and the time between an Interim and Final Hearing.
A Family Report Writer is usually an experienced Counsellor, Social Worker or Psychologist. The Report Writer interviews all of the people involved in the matter and then prepares a Family Report. Once prepared the Family Report will be sent to the Court or Independent Children’s Lawyer and then released to the parties. That report will contain recommendations. Those recommendations will usually include recommendations for the child/ren’s living and care arrangements, but may also include other types of recommendations (one example may be that one or both of the parties by psychiatrically assessed).
We can advise you if your matter is one that is likely to need a Family Report and provide you with further details about that process.
What does the Court have to consider when determining children’s matters?
There is a ‘presumption’ of equal shared parental responsibility when making parenting Orders. Parental responsibility does not mean who the children live with or equal time. Parental responsibility refers to the decisions that need to be made when raising children, such as medical/schooling/last names/religion etc. In most cases, both parents should agree on these issues and one parent should not make a decision about these issues without consulting the other parent.
In Family Law the terms that we use in children’s matters include:
- ‘a live with Order’ – i.e. who the children are to live with most of the time (i.e. the resident parent),
- ‘an Order for equal time’ – where the children are living in a shared arrangement, or
- ‘a spend time with Order’ – where the children live with one parent and spend time with the other (the non-resident parent).
If the Court decides that parents should have equal shared parental responsibility (which is most of the time) then the Court must consider:-
- Whether the children spending equal time with each parent is in the best interests of the child (i.e. a shared care arrangement);
- Whether spending equal time is reasonably practical; and
- If spending equal time is reasonably practical, consider making such an Order.
If the Court does not make an Order for equal time then it must consider whether the child spending substantial and significant time with each parent would be in the child/ren’s best interests and whether spending substantial and significant time is reasonably practicable, and consider making such an Order.
Here is a link to Section 60CC of the Legislation and Section 60CC(2) and (2A). These sections set out what the Court must have regard to when considering substantial and significant time. We urge you to read these Sections of the Family Law Act (1975) Cth as they are very important in matters that proceed to Court. Each parent’s behaviour, living circumstances and other matters will be compared to these Sections to see how they meet with these considerations. It is important to note here that when a Judge is determining a case in which there are significant child protection issues, they must prioritise the protection of the child over a meaningful relationship with the non-resident parent.
As you will see after reading the sections of the Act, there are a large number of issues the Court must consider. We can assist you in isolating and highlighting the important issues in your matter.
The above is general advice only. Please contact us at Stewart Family Law if you wish to make an initial fixed fee appointment to discuss your matter in further detail.