Last updated 1 April 2022
If the family dispute resolution conference does not resolve the parenting arrangements, the FCFCOA requires the parties, unless an exception applies, to exchange written correspondence to clearly identify the issues that remain in dispute. This written notice of intention should include the issues in dispute, the parenting orders a party will seek if a court action is started and a genuine offer to resolve the issues. If a notice of intention is received, it must be replied to in writing and state whether the offer is accepted. If the offer is not accepted, a written response must detail the issues in dispute, the orders sought in response and a genuine counter offer to resolve the issues.
There is also a requirement to comply with the duty of disclosure to ensure all relevant information to the issues in dispute is exchanged.
Where an agreement is not reached after reasonable attempts by correspondence, filing an application in court may be necessary.
Applicants must file with the FCFCOA an Initiating Application (Family Law) form to commence proceedings, setting out the final and interim orders they seek.
The Initiating Application must be supported by an affidavit (unless only seeking final orders), the s 60I certificate from a family dispute resolution practitioner (see Family Dispute Resolution) (r 2.02 Family Law Rules 2004 (Cth) (Family Law Rules)), a Notice of Child Abuse, Family Violence or Risk, a Genuine Steps Certificate and a Parenting Questionnaire.
The Initiating Application form requires the applicant to answer all relevant questions and to set out in detail the nature of the orders being sought. The Initiating Application should be filed electronically (eFiled) on the Commonwealth Courts Portal.
The respondent to an Initiating Application, if consenting to or opposing the orders sought by the applicant, files a Response to Initiating Application form supported by a Notice of Child Abuse, Family Violence or Risk, a Genuine Steps Certificate and a Parenting Questionnaire. An affidavit is only required by a respondent in some circumstances including when responding to or seeking interim orders. If a respondent does not wish to contest any orders sought by the applicant and is agreeable to any order the court may make, a Submitting Notice should be filed (r 2.22 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (FCFCOA Family Law Rules).
The FCFCOA has step-by-step guides to apply for parenting orders available on their website to assist people who are applying for parenting orders and/or representing themselves.
An application for interim parenting orders can only be filed where an Initiating Application has already been filed. That means that there must be an application for final orders yet to be decided. When proceedings have commenced and interim orders are subsequently sought, an Application in a Proceeding can be filed in both the FCFCOA. An affidavit containing the evidence relied upon to support the Interim Application must be filed at the same time as the application.
A response to an Application in a Proceeding must be filed with a supporting affidavit by the respondent, if they seek different orders than the applicant.
The application, response and affidavit forms are available from the FCFCOA website.
Practical steps to obtain a court order
In all courts, the applications (the Initiating Application and Application in a Proceeding), the supporting affidavit (if seeking interim and final orders), the Notice of Child Abuse, Family Violence or Risk, the Genuine Steps Certificate, Parenting Questionnaire and the other required documents including an s 60I certificate (if applicable) are to be eFiled via the Commonwealth Courts Portal accessible at http://www.commcourts.gov.au. If eFiling is not available, you can file the documents in the relevant court registry. A filing fee is payable depending upon the nature of the application and the applicant’s financial circumstances.
Unless an urgent interim hearing date is allocated, a date for the first court event before a judicial registrar will be allocated to the application approximately one to two months from the date the application is filed.
The minimum time between filing the documents and the first court event will be no less than 28 days and, in practice, may be up to three months, unless the matter is extremely urgent.
The applications (including the supporting documents) and supporting affidavits must be served on the respondent. For details of the manner and time frames applicable refer to the rules of procedure of the family law courts.
Contesting the Initiating Application
On receiving an Initiating Application for parenting orders, the other party must decide whether to consent to the orders sought, seek additional or different orders to those sought or seek that the court dismiss the application (see Responding documents above).
A Response to Initiating Application must be filed within 28 days of service of the Initiating Application. If the application was served on a respondent prior to the first court event, and the respondent is not contesting the orders sought, a Submitting Notice must be filed before the first court event. It should be filed and served as quickly as possible. If the responding material is not provided to the applicant in time for them to consider its contents, an adjournment may be necessary. Adjournments can have significant costs implications.
Parenting matters in the FCFCOA are subject to div 12A of the Family Law Act 1975 (Cth) (Family Law Act). This division sets out the following principles to be applied:
- The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
- The court is to actively direct, control and manage the conduct of the proceedings.
- The proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect, and the parties against family violence.
- The proceedings are to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
- The proceedings are to be conducted without undue delay and with as little formality and legal technicality and form, as possible.
The FCFCOA attempts to limit the number of appearances the parties are required to make at court, and the process generally involves filing, first court event, interim hearings (if necessary), dispute resolution, compliance and readiness hearing, trial management hearing (if required) and a final hearing (or trial).
On the first court event, a judicial registrar will determine how best to progress the matter. This may include whether any orders can be made by consent between the parties, determine if the pre-action procedures have been complied with, whether court-based dispute resolution is suitable and whether an independent children’s lawyer and/or family consultant should be appointed. It is best to be ready to answer the judicial registrar’s questions as to whether the pre-action procedures have been complied with, what are the issues in dispute and whether an interim hearing is required. The judicial registrar will case manage the application in the way they consider best meets the needs of the parties and the children depending upon the facts of a case.
If the matter requires an interim hearing, it will be listed on a date before a senior judicial registrar or where necessary or appropriate a judge after the first court event. Whether or not an interim hearing occurs, within five months of the matter being commenced, the FCFCOA requires the parties to participate in dispute resolution whether private, legal-aid facilitated or court based unless exceptional circumstances exist. Where proceedings involve family violence and safety concerns, consideration will be given to whether dispute resolution is appropriate and the measures to be implemented to facilitate dispute resolution occurring safely including conducting the dispute resolution electronically or in separate rooms.
If, after those events, parties remain unable to reach a final agreement, the matter will be listed on a date as close to six months from the date of filing for a compliance and readiness hearing (CRH) before a judge or senior judicial registrar. Prior to the CRH, parties are expected to have made a genuine effort to identify and agree on a trial plan, including the timing and duration of the evidence of each witness proposed to be called. No later than seven days prior to the CRH, each party must file an Undertaking as to Disclosure and a Certificate of Readiness. Orders or directions about what other documents (including further affidavits) parties need to supply before the continuation and final hearing may also be made at the CRH. Parties are expected to comply with those directions and cost consequences may flow from any failure to comply.
Family consultants may be present at each or any court event, but cross-examination of them prior to a final hearing is not common.
The FCFCOA lists matters for final hearing, wherever possible within 12 months of the date the application was filed. Evidence at final hearings is by way of affidavit of the parties and their witnesses. The applicant’s case is heard first and each witness is to be available for cross-examination. The respondent’s case follows, and again each witness is to be available for cross-examination. If there is an independent children’s lawyer, their witnesses, including expert witnesses, such as the court child expert, are called last and are also to be available for cross-examination.
Section 69ZT of the Family Law Act states that rules of evidence are not to apply unless the court is satisfied that the circumstances are exceptional. Evidence of children is not inadmissible solely because of the law against hearsay, and the court can give such weight (if any) to that evidence as it sees fit (s 69ZV Family Law Act).
Section 69ZX(1)–(2) of the Family Law Act gives the court wide powers and duties in relation to evidence, so the court can make orders and give directions about:
- the matters in relation to which the parties are to present evidence, who is to give that evidence and how it is to be given
- the matters in relation to which an expert is to provide evidence, how many experts will be required and how that evidence is to be provided
- the answering of questions or production of further evidence from parties, witnesses and experts
- the use and length of written submissions
- the timing and length of oral submissions
- the manner in which evidence is to be given including in relation to oral and affidavit evidence
- evidence of a particular kind that may or may not be presented by a party
- limiting or refusing cross-examination
- limiting the number of witnesses.
Once all of the relevant evidence is before the court, including any documentation under subpoena, each party is then asked to make submissions to the court. The judge may reserve their decision or provide an extempore judgment immediately.
Division 1 of the FCFCOA has a list of matters referred to as ‘Magellan matters’. The Magellan List provides for a child-focused, coordinated and timely response by the court, taking a case management approach that are judge led from the start. Matters are referred to the Magellan List where allegations of sexual abuse or significant physical abuse of a child are made by a party to parenting proceedings. The matters are referred initially to the Magellan registrar for consideration and initial directions. Usually, a court child expert acting as a family consultant is allocated to a matter, an independent children’s lawyer is appointed, funded by Legal Aid, and the court orders expert investigations and assessments from the respective state or territory child protection.
The matter is then listed as quickly as possible before the Magellan judge for further consideration and directions.
Generally, the aim is to determine Magellan cases within six months from the case being listed on the Magellan List.
An appeal against an order of a judge of the FCFCOA (Division 1) must be heard by a Full Court. Decisions from a judge of the court (Division 2) will usually be heard by a single judge. The Chief Justice may, however, direct that such an appeal be heard by a Full Court of three judges. An appeal is commenced by completing a Notice of Appeal and filing it, preferably by email in the National Appeals Registry via the Appeals Registry where the matter is being heard within 28 days of the decision. Appeals are dealt with under pt X of the Family Law Act. A filing fee may be payable depending on the financial circumstances of the appellant. The rules in relation to appeals are set out in ch 13 of the FCFCOA Family Law Rules and must be strictly adhered to. Appeals to the High Court of Australia are only by special leave of that court (s 55 Federal Circuit and Family Law Court of Australia Act 2021 (Cth)).
The role of the judge is to determine issues of fact and, having done so, to apply the law to those facts and make the appropriate order. In determining the facts of the case, the judge must exercise their discretion on the merits of the case and make an appropriate finding. It may therefore be quite difficult to successfully maintain that the trial judge has made a manifest error on the facts of the case. An appellant may be able to do this if it can be established to the satisfaction of the appeal court that the trial judge decided some issues before all of the evidence was received or misconstrued the evidence.
It may be difficult for an appellant to show that there has been a miscarriage of justice. A miscarriage of justice will only be proved if it can be established that the conduct of the trial was interfered with (e.g. by tampering with the opposition witness, destruction of evidence, duress or fraud). Generally, the trial will not miscarry simply because available evidence was not produced at the trial.
A review of a registrar’s decision, known as an Application for Review, must be made within 21 days of the order or decision being made. The review proceeds as a hearing de novo (a new hearing).
Appeals from state court decisions are made by filing in the FCFCOA a Form 20 Notice of Appeal within 28 days of the date of the decision and complying with the provisions of ch 13 of the FCFCOA Family Law Rules (state magistrate’s decision). A single judge of the FCFCOA hears these appeals.