These Directions have the status of law and assist with the conduct of proceedings before the Family Court of Australia
BACKGROUND
Practice Direction No 2 of 2004 dated 27 February 2004 describes the Children's Cases Program that operates in the Sydney and the Parramatta Registries of the Family Court of Australia.
The implementation of the Children's Cases Program in the Melbourne Registry together with the pilot child responsive pilot will provide a different pathway for cases to progress to the first day of hearing from those cases in Sydney and Parramatta.
As a consequence, a practice direction for Melbourne will be required to cover this new pathway.
1. INTRODUCTION
1.1 This Practice Direction describes a program for children's cases that will operate in the Melbourne Registry of the Family Court of Australia beginning in October 2005. It comprises the Children's Cases Program, incorporating a child responsive approach in the pre- and post-hearing phases.
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 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 have, 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 s 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 become eligible to enter the Program after the first court event is completed, being either a Case Assessment Conference or an interim hearing in the Judicial or Senior Registrar's Duty Lists.
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.
1.8. The approach will generally be focussed on the interests of the child and the parties' parenting proposals for the future of the child. The Court is very concerned about the adverse impacts on children who are exposed to or witness family violence and any history of violence in the parties’ past or present relationship will be highly relevant during the Program.
1.9. The Program is available in relation to all children's cases other than Hague Convention applications, applications for contempt or contravention, and matters identified as Magellan cases. 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 more timely 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.
1.11. The Program has three phases, pre-hearing, hearing and post-hearing. The pre-hearing phase has three stages: the intake and assessment interview, the family and child conference and the preliminary report with feedback interview(s). These steps build sequentially and provide opportunities for settlement by parents and through negotiations with legal representatives.
1.12. The same Family and Child Specialist will meet with the parties, and children, throughout the three phases.
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. In most cases the orders made by the Judge will require substantial departure from the Rules.
3. PATHWAY FOR PROGRAM CASES
3.1. The applicant will receive an information brochure at the time of filing an application for final orders and will be provided with an additional copy of the brochure to serve on the respondent with the application for final orders.
3.2. The application will be listed to a Case Assesssment Conference before a Family and Child Specialist or in a Judicial or Senior Registrar's Duty List if the matter has been abridged. The Family and Child Specialist will provide answers to specific questions about the Program during the Case Assessment Conference.
3.3. At the conclusion of the Case Assessment Conference, the parties will be required to sign a consent form if they wish to immediately participate in the Program. If either or both parties are uncertain about which pathway they wish to follow, the matter will be adjourned to a procedural hearing list conducted by a Registrar.
3.4. Where an application has been listed in a Judicial or Senior Registrar's Duty List, parties will be asked to inform the Judge, Judicial Registar or Senior Registrar whether they wish to participate in the program.
3.5. To be admitted to the Program all of the parties must sign the consent form.
3.6. Before signing the consent form parties are advised to take independent legal advice. Duty Lawyer services will be provided at the Court to explain the effect of the consent where one or both parties are self-represented.
3.7. Once the parties have completed the consent forms they will be eligible to enter the program.
3.8. Procedural orders will be made by the Registrar upon receipt of the signed consent form, including listing the matter to an intake and assessment appointment with a Family and Child Specialist. A Child Representative may also be appointed.
3.9. Anything said by the parties to the Family and Child Specialist as part of the program is not privileged and therefore may be included in any report prepared by the Family and Child Specialist.
3.10. Prior to the first appointment with the Family and Child Specialist each party will complete the CCP questionnaire. The completed questionnaires will be placed on the Court file and form part of the evidence the Judge will consider.
3.11. On attending the intake and assessment interview with a Family and Child Specialist, the parties will be interviewed separately, recognizing any family violence issues and may also be interviewed together.
3.12. Legal representatives will not participate in the intake and assessment interview or attend the family and child conference.
3.13. At the conclusion of the intake and assessment interview the Family and Child Specialist will provide the parties with an appointment time for the child/ren to be interviewed as part of a family and child conference where this is considered appropriate. Children may be interviewed separately or in sibling groups.
3.14. At the conclusion of the child/ren interviews with the Family and Child Specialist the parents will be provided with feedback on the experience and views of the children. Children would only be present during the feedback session in exceptional circumstances.
3.15. The parents will be advised by the Family and Child Specialist when the preliminary report will be released and the time for their next appointment with the Family and Child Specialist.
3.16. A preliminary report will be prepared by the Family and Child Specialist based on the information gained during the interviews with the parents and the children.
3.17. After the preliminary report has been distributed, the parties and their legal representatives will attend a meeting with the Family and Child Specialist. Children's Representatives, where appointed, will also attend the meeting. The meeting will provide the parties with further feedback from the Family and Child Specialist if required, an opportunity to explore resolution of some or all of the issues in dispute and to consider alternative methods of resolution such as external mediation.
3.18. In addition the parties, their legal representatives and the child representative, where appointed, will be able to seek clarification of information provided in the preliminary report but will not be able to cross examine the Family and Child Specialist.
3.19. A Registrar will attend the feedback interview to make orders either by way of final consent orders or procedural orders to progress the matter to the first day of hearing.
3.20. Parties may also be referred to community based organisations at any stage in the process.
3.21. Once the parties have entered the Program, they may not withdraw from the Program except with leave of the Judge hearing the case or upon the making of final orders during the pre-hearing phase. They will also be required to attend a post-hearing interview with the Family and Child Specialist. 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 will be conducted in an ordinary courtroom 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 or gowns.
4.1.4. During the hearing parties who 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. The Family and Child Specialist who has worked with the parties during the pre-hearing phase will normally sit in on the first day of the hearing and, as directed by the Judge, may assist the Judge to clarify issues and provide social science advice about the impact on child development of different approaches to parenting. The Specialist may assist the parties to resolve the issues or assist with a referral to a community organisation.
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. Each party and the child representative may re-list the matter at any time prior to conclusion of the hearing by arrangement with the Case Coordinator.
4.2.6. On the first day of the hearing all parties will be administered an oath or affirmation. Thereafter anything said by the parties to the Judge is part of the evidence.
4.2.7. No party is to file or serve any document without leave first obtained from the hearing judge.
4.3 During the hearing the Judge will identify and clarify the following matters with the parties (including the Child Representative):
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 the Family and Child Specialist to clarify the issues.
4.5 The relevant non-contentious facts and contentious facts as resolved by the Judge will be embodied in the court record. The record may take the form of a document, 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 contested facts can be amended at any time by adding or removing items for determination if approved by the Judge.
4.6 The Judge will make orders which prescribe the conduct of the CCP hearing.
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. The Judge will determine:-
5.3.1. what evidence is to be given in relation to the disputed facts.
5.3.2. the method of receiving evidence and the manner in which it is given.
5.3.3. what witnesses are to be called and the disputed facts about which a witness will give evidence.
5.4. 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.
5.5. 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.
5.6. All evidence is to be conditionally admitted. The Judge will determine the weight to be given to the evidence. The Judge will usually make an order pursuant to s 190 of the Evidence Act 1995 (Cth).
5.7. 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).
5.8. 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.
5.9. 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, depending on the need of the case or particular issues in the case, at the discretion of the judge.
5.10. The Judge may speak with and address questions to the parties, whether they are legally represented or not.
Experts
5.11. 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.5.12. The Judge will encourage reports to be limited and in short form, with recommendations and a short summary of reasons in dot points, if appropriate. The expert may be required by the Judge to orally expand on the report.
Subpoenas
5.13. No subpoena is to be issued without leave of the Court. Where possible subpoenas are to be settled on the day the issues for determination are settled.5.14. Leave to issue subpoenas can be sought by telephone attendance upon the Judge.
5.15. The Judge may release documents for inspection by an order made in chambers.
5.16. 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.
5.17. 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
5.18. The Program will provide opportunities for the child to be heard in a manner which is consistent with his/her wishes, developmental level and the circumstances of the case. This will usually be by way of a Family Report prepared by the Family and Child Specialist who has been working with the parties since their entry into the program or through an expert appointed under the Rules ("Court Expert").5.19. 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 Family and Child Specialist will provide advice to the Judge about whether or not the child wishes to speak to the Judge and the arrangements that should be put in place to enable that to occur. The Judge may direct that other persons, such as the Family and Child Specialist and/or the Child Representative, be present at such an interview.
5.20. 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.
5.21. The Judge will provide a report through a Family and Child Specialist or some other means of the outcome of any child interview. The content and method of provision of such report is a matter solely within the discretion of the Judge and will be determined having regard to the particular circumstances of the case, the best interest of the child(ren) and the interests of fairness to the parties.
Procedural
5.22. A Case Coordinator will be assigned to the Program project team in each registry and will be responsible for:-5.22.1. Checking that all time limits have been complied with and in cases of non-compliance to bring it to the attention of the Judge.
5.22.2. 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.
5.23. 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.
5.24. 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.
6. CHILD REPRESENTATIVES
6.1. The 'Guidelines for Child's Representative' apply to cases in the Program.
6.2. Where a Child Representative is appointed for a case in the Program, Victoria Legal Aid is to be provided with copies of documents filed in the proceedings 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 the Case-Coordinator.
6.4. Child Representatives have the following particular roles and responsibilities in the Program:
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.
7. MEDIATION AND FAMILY REPORTS
7.1. Family and Child Specialists may perform both mediation and family reporting functions.
7.2. A Family Report may be ordered pursuant to s 62G of the Family Law Act 1975 to assist the Court in a final determination of a dispute. A Family Report is separate to the preliminary report prepared during the pre-hearing stage. In all but exceptional circumstances, the Family Report will be prepared by the same Family and Child Specialist who prepared the preliminary report.
7.3. Anything said or done by the parties in the course of receiving assistance from a Family and Child Specialist during the hearing process is not privileged unless otherwise ordered by the Judge and may therefore be included in a Family Report.
7.4. Family and Child Specialists 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 the trial Judge on the day if possible or otherwise to the list Judge. The Family and Child Specialist 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 will be restricted to those matters absolutely necessary to be reported upon.
7.6. Reports may be ordered at any stage of the hearing and additional reports may be ordered at any time.
7.7. Reports are to be limited to the matters set out in the order for preparation of the report, but additional matters may be included if the report writer considers that it is relevant to the child's best interests.
7.8. The report writer is to be provided with the Court record of the non-contentious background facts and the settled list of contentious facts for determination and any other material ordered by the Judge.
7.9. 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.
7.10. The report should contain a brief summary of facts on which any opinion of the report writer is based.
7.11. In the event of the report writer identifying issues which are not referred to in the Court record, the reporter will identify those matters in the report.
7.12. The Judge may direct that the nature of the orders made and the reasons for decision are to be explained to the children by the Family and Child Specialist or such other person as the Judge considers to be appropriate.
7.13. Family and Child Specialists may recommend a course of counselling or education for the parties to address parental and child issues and the Judge may make orders accordingly.
7.14. Where the Judge considers it necessary, use will be made of s 65L of the Family Law Act 1975 to order the Family and Child Specialist to have a supervising role for the Court orders.
THE HONOURABLE JUSTICE DIANA BRYANT
CHIEF JUSTICE
FAMILY COURT OF AUSTRALIA
DATE: 30 September 2005