Last updated 8 August 2016
Applicants must file an Initiating Application (Family Law) form to commence proceedings, setting out the final and interim orders they seek in either the Family Court or the Federal Circuit Court. The Federal Circuit Court also requires a supporting affidavit to be filed, but the Family Court only requires an initial supporting affidavit if interim orders are sought.
When parenting orders are sought in the Initiating Application (Family Law), a Notice of Risk must also be filed with the application.
Respondents use the Response to Initiating Application form in the Family Court, and a Response in the Federal Circuit Court. A respondent must also file a Notice of Risk when seeking parenting orders.
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 is prepared in triplicate along with a copy of any documents required to be filed with the form including the relevant certificate from a family dispute resolution practitioner (see Family dispute resolution (r 2.02 Family Law Rules 2004 (Cth) (Family Law Rules)).
Generally, family law applications are filed in the Federal Circuit Court, however, the Family Court of Australia website does set out the types of matter that should be filed in the Family Court.
The Family Court has an Initiating Application Kit (do-it-yourself) available on its website to assist people who are applying for parenting orders and 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 Case can be filed in both the Family Court and Federal Circuit Court, although each court has its own form. An affidavit containing the evidence relied upon to support the application must be filed at the same time as the application.
A response to an application must be filed with a supporting affidavit by the respondent, if they seek different orders than the applicant.
The application, response and affidavit forms for each court are available from the respective court’s website.
Practical steps to obtain a court order
In all courts, the applications (the Initiating Application and Application in a Case), the supporting affidavit and the Notice of Risk are to be filed with the relevant court registry. If filing in the Family Court, a copy of other documents (as relevant) may need to be filed (rr 2.02, 2.05 Family Law Rules). A filing fee is payable depending upon the nature of the application and the applicant’s financial circumstances.
In the Family Court, unless an urgent interim hearing date is allocated, a date for an initial procedural hearing before a registrar will be noted on the Initiating Application when filed. In the Federal Circuit Court, unless an urgent interim hearing date is allocated, a date for a directions hearing before a judge will be noted on the Initiating Application. On this first court date after the application is filed, the court will determine how best to progress the matter. In the Federal Circuit Court, it is best to be ready to argue for the orders being sought on the first return date. All of the Federal Circuit Court judges run their list of matters in the way they consider best meets the needs of the parties and the children depending upon the facts of a case.
The minimum time between filing the documents and the return date will be no less than 28 days, unless the matter is extremely urgent. In practice, the period between filing and the hearing will generally be up to three months because of a backlog of applications.
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 or oppose the application.
If the party seeks orders different to those sought in the application, they must make, file and serve a response (Response to Initiating Application or a Response), an affidavit (if responding to an interim application) and a Notice of Risk. The time frames for filing response material can vary, but it should be filed and served as quickly as possible. In the Federal Circuit Court it must be filed and served within 14 days of the date of service. If the 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.
Children’s matters in both courts 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 family law courts attempt to limit the number of appearances the parties are required to make at court, and the process generally involves filing, interim hearings (if necessary), directions hearings and a trial.
The Federal Circuit Court has a docket system, which means that from the first time the matter is listed in court, it is listed before the judge who has the management of the matter up to and including its conclusion at final hearing.
The Family Court of Australia, due to the nature of some of the more complex matters it must deal with and the fewer judicial officers available to determine matters, can have longer waiting lists for final hearings. The Family Court also uses a Child Responsive Model. This model involves court events being managed by registrars initially and attendance upon a family consultant. If, after those events, parties remain unable to reach a final agreement, the matter is likely to be allocated to the docket of a particular judge and managed according to that judge’s case management requirements. For some matters, this will mean an appearance before the judge to determine the outstanding issues and the making of directions about what documents (including further affidavits) parties need to supply before the continuation and final stage of the trial. Parties are expected to comply with those directions and cost consequences may flow from any failure to comply.
For other matters, the registrars may maintain more direct involvement until the matter is finally ready to be listed for final hearing, and then trial dates will be allocated. Family consultants may be present at each or any court event, but cross-examination of them prior to a final hearing is not common.
Essentially, final hearings are conducted in the usual way. Evidence is by way of affidavit of the parties and their witnesses. The applicant’s case is heard first and each witness is made available for cross-examination. The respondent’s case follows, and again each witness is made available for cross-examination. If there is an independent children’s lawyer, their witnesses, including expert witnesses, are called last and are also made 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.
The Family Court has a list of matters referred to as Magellan matters that the court case-manages separately. These matters involve allegations of sexual abuse or significant physical abuse of a child. The matters are referred initially to the Magellan Registrar for consideration and initial directions. Usually, a family consultant is allocated to a matter and an independent children’s lawyer is appointed. The matter is then listed as quickly as possible before the Magellan Judge for further consideration and directions.
According to the Family Court of Australia website, Magellan is based on the following principles:
- There is an inter-organisational approach to cases involving allegations of serious physical and sexual abuse.
- There is a focus on the children in the dispute.
- The cases are judge-led and managed from the start, with a tightly managed and time-limited approach.
- The court orders expert investigations and assessments from the respective state or territory child protection agency or the court family consultant.
- There is a court-ordered independent children’s lawyer for every child, funded by Legal Aid.
Generally, the aim is to complete Magellan cases within six months from the case being listed into the Magellan program.
An appeal against a final or interim order of a judge is made to the Full Court of the Family Court by completing a Notice of Appeal pursuant to r 22.02 of the Family Law Rules and filing it in the registry of the Family Court 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 pts 22.3 and 22.4 of the Family Law Rules and must be strictly adhered to. A single judge of the Family Court in practice hears an appeal from a decision of a judge in the Federal Circuit Court. Appeals to the High Court of Australia lie only by special leave of that court (s 95 Family Law Act).
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 interim order must be made within either seven days or one month, depending on the nature of the order (r 18.08 Family Law Rules). The review proceeds as a hearing de novo (a new hearing).
Appeals from state court decisions are made by filing in the Family Court a Form 20 Notice of Appeal within 28 days of the date of the decision and complying with the provisions of pt 22.5 of the Family Law Rules (state magistrate’s decision). A single judge of the Family Court hears these appeals.