These Directions have the status of law and assist with the conduct of proceedings before the Family Court of Australia
The following Practice Direction is an amended version of Practice Direction No. 2 of 2004 which took effect on 1 March 2004.
The Practice Direction immediately following describes the continuing program for children's cases that will operate in all registries of the Family Court of Australia except Victoria for which there is a separate Practice Direction (Practice Direction No. 2 of 2005). This Practice Direction will take effect from 1 January 2006.
SECTION HEADINGS
1. INTRODUCTION
2. RULES OF COURT
3. PATHWAY FOR PROGRAM CASES
4. HEARINGS
5. EVIDENCE AND THE POWERS OF THE JUDGE
6. CHILD REPRESENTATIVES
7. MEDIATION AND FAMILY REPORTS
1. INTRODUCTION
1.1. This Practice Direction describes a Program for children's cases that will operate in all the Registries of the Family Court of Australia (except in Victoria) by 1 July 2006.
1.2. The purpose of the Children's Cases Program ["the Program"] is to provide 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, 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 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.
1.8. The approach will be focussed on the interests of the child and the parties' parenting proposals for the future.
1.9. 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 may be highly relevant.
1.10. 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.
1.11. 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. The Family Law Rules do not apply unless ordered by the Judge.
3. PATHWAY FOR PROGRAM CASES
3.1. At the conclusion of the Case Assessment Conference parties will receive an information brochure, pro-forma consent form (Form X) and questionnaire.
3.2. At the Case Assessment Conference the Mediator and/or Registrar will provide answers to specific questions about the Program.
3.3. All of the parties must sign the consent form and complete the questionnaire to be admitted to the Program.
3.4. 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 consent where one or both parties are self represented.
3.5. Cases will not enter the Program prior to the end of the Resolution Phase. The Determination Phase commences with the issuing of a Trial Notice.
3.6. 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.
3.7. 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.
3.8. Cases can also be referred to the Program by a Judge, Judicial Registrar or Registrar. 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.
3.9. 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.
3.10. Where the parties inform the Judge, Judicial Registrar or 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.
3.11. A Judge, Judicial Registrar or Registrar will make consent orders for the case to proceed as a Children's Cases Program case.
3.12. 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 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. 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.
4.1.4. A Court appointed mediator will normally sit in on the first day of the hearing and, as directed by the Judge, may assist the Judge or the parties to resolve the issues. The information from the mediator is general in nature and to assist the judge and the parties but is not evidence in the proceedings unless given under oath and in circumstances where there has been an opportunity for cross-examination.
4.1.5. All proceedings will be recorded and the Judge (or the parties at their own expense) may order transcript as required. If a party orders a transcript a copy is to be provided to the Judge.
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 the conclusion of hearing by arrangement with the Case Coordinator.
4.2.6. On the first day of the hearing all parties, and the mediator, 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 a Court appointed mediator in resolving the issues.
4.5. The relevant non-contentious facts and contentious facts to be determined by the Judge may 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 for determination 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 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
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 issues 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 video link. 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.
5.7. The Judge will usually make an order pursuant to s 190 of the Evidence Act 1995 (Cth).
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. 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 may speak with and address questions to the parties, whether they are legally represented or not.
Experts
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 expand the report orally.Subpoenas
5.13. 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.5.14. The Judge may release documents for inspection by an order made in chambers.
5.15. 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.
5.16. 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
5.17. 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").5.18. 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 or a Court appointed mediator, may be present at such an interview.
5.19. The Judge should consult any relevant report writer or expert involved in the case on these issues.
5.20. The Judge may provide a report through a mediator 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 interests of the child(ren) and the interests of fairness to the parties.
Procedural
5.21. A Case Co-ordinator will be assigned to each case in the Program in each registry and will be responsible for:5.21.1. Checking that all time limits have been complied with and in cases of non-compliance to bring it to the attention of the Judge.
5.21.2. 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.
5.22. 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.
5.23. 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 'Guidelines for Child's 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 completed Questionnaires 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. However, at the time that final orders are made, a Child Representative or Court appointed mediator 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 the trial Judge on that day if possible or otherwise to the list judge. 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 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 may be provided with the court record of the non-contentious background facts and the settled 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, if relevant, 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 a mediator or such other person as the Judge considers to be appropriate.
7.13. Where the Judge considers it necessary, use will be made of s 65L of the Family Law Act to order mediators to have a supervising role for the Court orders.
THE HONOURABLE JUSTICE DIANA BRYANT
CHIEF JUSTICE
FAMILY COURT OF AUSTRALIA
DATE: 20 December 2005