These Directions have the status of law and assist with the conduct of proceedings before the Family Court of Australia
The following Practice Direction will take effect as from this date:
1 March 2004
The Practice Direction immediately following describes a program for children's cases that will operate and be evaluated in the Sydney and Parramatta Registries of the Family Court of Australia beginning 1 March 2004.
1. INTRODUCTION
1.1. This Practice Direction describes a Program for children's cases that will operate and be evaluated in the Sydney and Parramatta Registries of the Family Court of Australia beginning 1 March 2004.
1.2. The purpose of the Children's Cases Program ["the Program"] is to examine a new way of conducting family law litigation that is intended to alleviate some of the problems associated with the current adversarial system of determining a dispute. Participation in the Program will require the informed consent of all parties.
1.3. It is intended that parties in children's cases will be able to participate in the Program irrespective of whether they are represented by lawyers or not. While the presence of lawyers is highly desirable in all family law litigation, the Court recognises that there are circumstances where parties either do not wish to, or are unable to afford legal representation.
1.4. The focus of the Program will be on producing the best outcomes for the child. To this end, it is necessary for there to be a departure from some traditional features of the adversarial process and various provisions of the Evidence Act 1995 (Cth) such as the admissibility of hearsay evidence (see section 190 Evidence Act)) and for all the parties to the proceedings to provide informed consent to this departure. It is believed that the removal of these technical rules will greatly assist in achieving this focus.
1.5. The parties' agreement to the different way of determining children's cases will be formalised in a consent order. Parties who are not represented by lawyers will have access to legal advice about giving consent.
1.6. Cases will only become eligible to enter the Program after completion of the Resolution Phase of the Court's Case Management system. Most cases involving children are resolved during this phase. Mediated solutions are considered to be the most desirable outcome in most children's cases. The Program is not intended to be a substitute for mediated solutions. It is therefore only when mediation has been unsuccessful or is inappropriate that cases will be eligible to enter the Program.
1.7. It is an essential feature of the Program that the Judge is in charge of the case and will play the leading role in relation to the conduct of the hearing, including deciding the issues to be determined, the evidence that is called, the way the evidence is received and the manner in which the hearing is conducted. The Judge will also have the discretion of shifting between the processes of determining contentious material facts and issues and using mediation techniques to assist in determining the case.
1.8. The approach will be focussed on the interests of the child and the parties' proposals for the future of the child rather than the past history of the parties' relationships.
1.9. The Program is available in relation to all children's cases other than Hague Convention applications, and applications for contempt or contravention. These matters will continue for the present at least, to be dealt with in the existing manner.
1.10. The Program aims to provide significant benefits to children and their families and also to lawyers and other professionals through the speedier progression of these cases to determination facilitated by less formal and less costly procedures. It builds upon rather than supplants the highly effective outcomes seen in the settlement of cases by practitioners and Court mediated settlement.
2. RULES OF COURT
2.1. Subject to any orders that the Judge may make, the 2004 Family Law Rules will apply to Program cases, including cases which are accepted into the Program before the Rules come into effect.
3. PATHWAY FOR PROGRAM CASES
3.1. At the Case Assessment Conference parties will receive an information brochure, Consent form and questionnaire. 3.2. At the Case Assessment Conference the Mediator and/or Deputy Registrar will provide answers to specific questions about the Program. 3.3. To be admitted to the Program all of the parties must sign the consent form and complete the Questionnaire. 3.4. Before signing the consent form parties are advised to take independent legal advice. 3.5. The Legal Aid Commission will provide a solicitor to explain to self -represented parties the effect of the consent except where a Commission solicitor is at that time representing the other party. 3.6. Cases will not enter the Program prior to the end of the Resolution Phase which is where otherwise a Trial Notice would be issued. 3.7. Where all parties decide to enter the Program the case will be listed before a Judge as the next event after entering the Determination Phase. 3.8. Each party's signed consent form and completed Questionnaire is to be provided to the other side as soon as possible after completion and prior to the hearing or as directed by the Judge. 3.9. Cases can also be referred to the Program by a Judge, Judicial Registrar, Registrar or Deputy Registrar at any time. The case is to be listed before a Judge on a nominated day or on the day that the referral is made if the parties are ready and a judge is available. 3.10. Mediators may recommend that the parties be involved in the Program where the mediator is satisfied that the case is unlikely to settle and a judicial determination is required. In those circumstances a mediator may refer the case to the Program. 3.11. Where the parties inform the Judge, Judicial Registrar, Registrar or a Deputy Registrar, that they wish to enter the Program, and the case is one which requires a Child Representative, then, if appropriate, an order will be made for the appointment of a Child Representative. The usual criteria for the appointment of a Child Representative will apply. 3.12. Registry Managers should invoke the protocol with the Legal Aid Commission for speedy notification to the Commission. It is the Court's expectation that the Child Representative will be available to attend the first hearing before a Judge provided sufficient notice is given to the Commission. 3.13. Once the parties have entered the Program, they may not withdraw from the Program except with leave of the Judge hearing the case. Agreement to this condition will be part of a consent order made in the case.
4. HEARINGS
4.1 The Court Setting
4.1.1 The hearing may be conducted in an ordinary courtroom or in a conference room or at some other place at the discretion of the Judge. The layout of the hearing venue will be determined by the Judge in a manner that he/she considers will best meet the needs of the case. In this regard, attention will be paid to cultural and family violence issues.
4.1.2 There will be no formal requirements as to where lawyers as distinct from parties should sit in the courtroom.
4.1.3 Lawyers are not required to wear wigs.
4.1.4 During the hearing parties that are not legally represented will normally be allowed to have a support person sit with them. The extent of the support person's involvement in the hearing will be at the discretion of the Judge.
4.1.5 A Court appointed mediator may sit in on the hearing and, as directed by the Judge, may assist the Judge or the parties to resolve the issues.
4.1.6 All proceedings will be recorded and the Judge (or the parties at their own expense) may order transcript as required.
4.2 Outline of the Court Proceedings
4.2.1 The hearing commences when the case first comes before the Judge.
4.2.2 The hearing will proceed as expeditiously as possible at such times and places as the Judge considers appropriate.
4.2.3 Each party has the right to be heard in keeping with the rules of natural justice and procedural fairness.
4.2.4 Each party has an obligation to make full and frank disclosure of all issues relevant to the child and his/her best interests.
4.2.5 On the first day of the hearing all parties will be administered an oath. Thereafter anything said by the parties to the Judge during the hearing is part of the evidence.
4.3 At the beginning of the hearing the Judge will identify and clarify the following matters with the parties (including the Child Representative):-
the current arrangements for the parenting of the children and the proposals of each party specified in the answers to the questionnaire.
any material non-contentious facts.
4.4 The Judge will determine and clarify with the parties (including the Child Representative) the contentious facts and issues that are material to the proposals of each party. The Judge may be assisted by a Court appointed mediator in resolving the issues.
4.5 The relevant non-contentious facts, contentious facts and the issues for determination resolved by the Judge will be embodied in the court record. The record may take the form of a document signed by the parties and the Judge, or an oral statement by the Judge where the agreement of the parties is acknowledged on the record. If a Child Representative is appointed after this time then a further opportunity will be given to the Child Representative for input to the issues. The record of the settled issues for determination can be amended at any time by adding or removing issues for determination if approved by the Judge.
4.6 Orders will then be made by the Judge in accordance with the signed consent orders.
4.7 The Judge may continue to hear and determine the case regardless of whether he/she makes findings in relation to issues during the hearing. The exercise of this power by the Judge shall not provide a basis for his/her disqualification from continuing the hearing.
4.8 Judgment may be given in specific parts rather than in one event at the conclusion of the hearing.
4.9 The time for lodging an appeal against any order made, otherwise than by consent, will not commence to run until the conclusion of the hearing and the making of the last orders in the hearing, unless the Judge otherwise orders.
4.10 The rights of a party to appeal against an order are not affected except that he or she will not be allowed to complain about matters to which he or she has agreed and, in particular, his or her consent to participating in this Program.
5. EVIDENCE AND THE POWERS OF THE JUDGE
5.1. The powers of the Judge described in this Practice Direction are intended to supplement and in no sense detract from the existing powers of a judge.
5.2. The Judge may direct the parties (or any other appropriate person) to make inquiries and obtain evidence on any issue the Judge determines is relevant to his or her decision. The Judge may direct this to occur irrespective of what the parties contend, including what reports are required and from whom and whether or not a Child Representative should be appointed.
5.3. In the context of this Program, "issues" are disputed facts on which findings need to be made in order to decide what orders should be made in the best interests of the child.
5.4. The Judge will determine:-
5.4.1. what evidence is to be given in relation to the issues.
5.4.2. the method of receiving evidence and the manner in which it is given.
5.4.3. what witnesses are to be called and the issues about which a witness will give evidence.
5.5. The parties will normally give their evidence by an affidavit unless otherwise directed by the Judge. The affidavit should only address the issues for determination settled by the Judge.
5.6. Unless otherwise directed by the Judge all evidence by other witnesses (with the exception of experts) is to be given orally and where appropriate by telephone or videolink. The Judge may direct that an outline of the evidence in respect of each witness is to be filed and served within a reasonable time before the evidence is scheduled to be called. The Judge may decide that on the basis of the outline of evidence, a witness is not required.
5.7. All evidence is to be conditionally admitted. The Judge will determine the weight to be given to the evidence.
5.8. Parties to cases in the Program do not waive their right to appeal an order on the ground of inappropriate weight having been given to evidence (or any other usual ground).
5.9. No objections are to be taken to the evidence of a party or a witness or the admission of documents, photographs, videos, tape recordings etc other than on the grounds of privilege, illegality, or other such serious matter.
5.10. The Judge will determine the order, sequence and manner of questioning by the parties. The hearing in some circumstances may proceed as an orderly discussion between the Judge, the parties and their legal representatives (if any) and a witness or witnesses, rather than a traditional style of oral examination by cross-examination and re -examination. In other cases a more traditional approach will be used. It is entirely in the discretion of the Judge whether cross-examination is permitted and the Judge may set limits on the length and nature of the cross-examination.
5.11. The Judge is able to use mediation techniques to assist in determining the matter where he/she sees fit and is not thereby disqualified from continuing to hear and determine the case. Anything said or done while the Judge is using mediation techniques is not privileged.
5.12. The Judge may speak with and address questions to the parties, whether they are legally represented or not. Additionally, the Judge may hold private discussions with the parties subject to the same being recorded and copies of the transcript being made available to the other parties if required.
Experts
5.13. Unless a specific Direction is made, all experts other than court staff will be required to comply with the Family Law Rules relating to expert witnesses.
5.14. Reports are to be limited and in short form, with recommendations and a short summary of reasons in dot points. The expert will expand the report orally if required.
Subpoenas and Discovery
5.15. No subpoena is to be issued without leave of the Judge. Where possible subpoenas are to be settled on the day the issues for determination are settled.
5.16. Leave to issue subpoenas can be sought by telephone attendance upon the Judge.
5.17. The Judge may release documents for inspection by an order made in chambers.
5.18. An order will be made specifying the final day for inspection of subpoenaed documents before any hearing day. This is to avoid the circumstances when parties and lawyers seek to inspect documents at the hearing.
5.19. Any documents sought to be tendered, where the documents are a file or an accumulation of documents, must have the pages and portions of pages sought to be relied upon flagged or readily identifiable.
Children
5.20. The Program will provide opportunities for the child to be heard in a manner which is consistent with her/his wishes, developmental level and the circumstances of the case. This will usually be by way of a Family Report or through an expert appointed under the Rules ("Court Expert").
5.21. In the discretion of the Judge, and in appropriate cases, the Judge may interview the child. This should normally be done only with the consent of the child. The Judge may direct that other persons, such as the Child Representative, may be present at such an interview.
5.22. The Judge should consult any relevant Report Writer or expert involved in the case on these issues. It is open to the Judge to act on the views expressed by the children in such interviews.
Procedural
5.23. A Case Co-ordinator will be assigned to the Program Project team in each Registry and will be responsible for:-
5.23.1. Checking that all time limits have been complied with and in cases of noncompliance to bring it to the attention of the Judge.
5.23.2. Where a request is made for a case to be relisted for case management directions, to arrange for the hearing to be conducted by way of telephone link.
5.24. The parties and Child Representative are encouraged to bring to the attention of the Judge circumstances where time limits have not been complied with by the parties and where non-compliance may interfere with the further hearing of the case.
5.25. The parties and the Child Representative may re-list the matter for case management directions at any time by arrangement with the Case Coordinator and such an appointment may be conducted by telephone link up.
6. CHILD REPRESENTATIVES
6.1. The Practice Direction 2003/02 Guidelines for Child Representatives apply to cases in the Program.
6.2. Where a Child Representative is appointed for a case in the Program, the Legal Aid Commission is to be provided with copies of documents filed in the proceedings, the Questionnaire forms and, if available at the time of appointment , the Court record of the background facts, the non-contentious issues and the issues for determination.
6.3. The Child Representative will be able to list the matter for any reason at any time by arrangement with Case-Coordinator.
6.4. Child Representatives have the following particular roles and responsibilities in the Program:
To have input to the identification of the background facts, the non -contentious issues and the issues for determination in consultation with parties or otherwise.
To make recommendations as to whether a Family Report or a Court Expert report should be ordered.
To liase with the mediator or the Court Expert generally to ascertain whether any further evidence should be obtained for the hearing.
To liase with the mediator and the Court Expert to ensure that those persons have a clear idea of all the configurations of residence and contact orders which may be made in the case. This is in order to ensure that the children have had an opportunity to consider those proposals and have a say about each should they choose to do so. The Child Representative should also brief the mediator or Court Expert as to any particular matters which might be canvassed with the children for the purpose of being able to put specific evidence before the Judge.
To ensure that the child's views are properly recorded and provided to the Judge.
To appraise the Judge of any request made by the child in the proceedings to speak in court or to see the Judge.
To make recommendations at any stage during the hearing process.
6.5. Any Rule which requires the disclosure of any communication between the Child Representative and a Court Expert is inoperative in relation to the Program.
6.6. Child representation ceases when final orders are made. However, at the time that final orders are made, a Child Representative will usually confirm arrangements for referral to post-order programs.
7. MEDIATION AND FAMILY REPORTS
7.1. Program cases may be allocated to selected mediators who may perform both mediation and family reporting functions.
7.2. Anything said or done by the parties in the course of receiving assistance from a Mediator during the hearing process is not privileged unless otherwise ordered by the Judge and may therefore be included in a family report.
7.3. Mediators may recommend a course of counselling for the parties which addresses parental and child education and the Judge may make orders accordingly.
7.4. Mediators appointed to prepare a Family Report will actively pursue settlement with the parties. If a settlement is reached with unrepresented parties then the matter is to be referred to a Judge on that day. The mediator will accompany the parties to Court to advise the Judge of the settlement and to assist the Judge in the formulation of the orders.
7.5. The order for the preparation of the Family Report is to be restricted to those matters absolutely necessary to be reported upon.
7.6. Family Reports are to be prepared within no more than four weeks of the date of order.
7.7. Reports may be ordered at any stage of the hearing and additional Reports may be ordered at any time.
7.8. Reports are to be limited to the matters set out in the order for preparation of the Report, but additional matter may be included if the report writer considers that it is relevant to the child's best interests.
7.9. The Report is to be available within a reasonable time before the hearing at which the report is to be considered.
7.10. The report writer is to be provided with the court record of the background facts, the noncontentious issues and the settled issues for determination.
7.11. The Report is to have a specific section which addresses the children's wishes in relation to residence and/or contact, if relevant, and to specifically seek the children's views on the proposals of each competing party together with the children's independent views. The report will also contain a section which records any comments the children may wish to convey to the Judge, if they so desire.
7.12. The report should contain a brief summary of facts on which any opinion of the report writer is based.
7.13. In the event of the report writer identifying issues which are not referred to in the court record of the settled issues for determination, the reporter will provide an urgent report to the Judge identifying the issue together with a short statement of the reason it is seen to be important. The Judge then will arrange a "Case Management" telephone conference with the parties and the Child Representative.
7.14. The Judge may direct that the nature of the orders made and the reasons for decision are to be explained to the children, by a mediator or such other person as the Judge considers to be appropriate.
7.15. Where the Judge considers it necessary, use will be made of section 65L of the Family Law Act to order mediators to have a supervising role for the Court orders.
Practice Direction 2004/2, 27 February 2004, issued by the Hon. Chief Justice Alastair Nicholson AO RFD