People involved in disputes about the future arrangements for their children after relationship breakdown are required to make a genuine effort to resolve the matter by family dispute resolution.
Section 60J of the Family Law Act sets out circumstances when families do not have to attend family dispute resolution services before applying to a court. The grounds relate to:
- there being abuse or a risk of child abuse if there was a delay in applying for an order, or
- family violence or a risk of family violence by one of the parties.
Section 67ZBB of the Family Law Act requires the Court to take ‘prompt action’ in cases where a person applies for parenting orders and files a Notice of child abuse, family violence, or risk alleging ‘as a consideration that is relevant to whether the court should grant or refuse the application’ that there has been abuse of the child by one of the parties or risk of such abuse if there were to be delay in applying for the order or that there has been or is a risk of family violence by one of the parties.
In considering the application, the Court must consider what interim or procedural orders (if any) should be made:
- to have evidence provided about the allegations, and
- to protect the child or any of the parties to the proceedings and make orders as the Court considers appropriate.
Magellan case management in the Family Court
The Magellan program was developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse. As these cases involve the most vulnerable children, the Family Court has implemented this fast-track program in all of its registries.
- rigorous judicial management including the imposition of strict timeframes
- an early ‘front loading’ of resources such as the appointment of an independent children’s lawyer
- requesting information from the relevant state or territory welfare authority early in the trial process, and
- close liaison on case management between external information providers and a small team of judges, registrars and family consultants.
The Magellan approach is based on:
- cooperation with other organisations, such as state welfare authorities, which have had contact with the family
- a focus on the children in the dispute
- a judge leading and managing the proceedings from the beginning within a tightly managed and time limited approach
- the Court’s ability to order expert investigations and assessments from the respective state/territory child protection agency and/or a court family consultant, and
- a designated court-ordered independent children’s lawyer for every child, funded by legal aid.
A Magellan team consisting of judges, registrars and family consultants at each family law registry manages the cases. Ideally, each case is managed by the same team from start to finish. Generally, the aim is to complete Magellan cases within six months from the case being placed on the Magellan list.
Early steps in a Magellan case include:
- making appropriate interim orders to protect the child until the matter comes to trial
- ordering a report from the respective state/territory child protection agency including:
- whether it intends to intervene in the Family Court proceedings
- whether it has previously investigated these or other allegations
- the conclusion and the reasons for the conclusion of the investigation
- any recommendations or other relevant information
- ordering a subpoena of the respective state/territory child protection agency
- ordering the appointment of an independent children’s lawyer, and
- ordering a detailed family report, where appropriate, which analyses the family dynamics and the needs of the children.