Any adult that has no interest adverse to that of the child and who can fairly and competently conduct the case for the child may consent to being a case guardian [r 6. The court may order the case guardian to pay costs [r 6. Before any action is taken in the Family or Federal Circuit Court, certain steps must usually be taken called pre-action procedures , unless the matter is exempt or potentially exempt from this requirement.
These steps are designed to ensure that reasonable attempts are made to resolve the matter without going to court.
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Family dispute resolution required for all parenting order applications. Prior to commencing an application for parenting orders , whether in the Family Court or the Federal Circuit Court, it is necessary for both parties to attempt to resolve their dispute by family dispute resolution unless an exemption applies. A certificate must be issued by a registered family dispute resolution practitioner indicating that mediation has been attempted. Exemptions apply in cases where the application is an urgent one e. All applications for parenting orders in the Federal Circuit Court are now required to follow the pre-action procedures followed in the Family Court see below.
Pre-action procedures that are required before taking action in the Family Court do not apply in the Federal Circuit Court for non-parenting order applications. For both parenting order applications and non-parenting order applications you must complete certain pre-action procedures before you can file an application in the Family Court. Family Law Rules Cth r 2. In most cases, once an application has been lodged in the Family Court it will be necessary to serve copies of any application and supporting documents on the other person.
Anyone who does not comply with these requirements unless exempt risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management.
The court expects parties to take a sensible and responsible approach to pre-action procedures and parties must not use the pre-action procedure for an improper purpose for example, to harass the other party or to cause unnecessary cost or delay.
Parties must not raise in their correspondence irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position [see schedule 1 to the Rules]. Applications for consent orders can only be filed in the Family Court. An original and two copies of the application must be filed.
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The court keeps the original application and returns to the applicant the other stamped copies, on which the hearing date has been noted. A stamped copy of the application must be served on the respondent the person against whom the proceedings are being taken. If the application is to be contested the respondent must prepare a document called a Response. For up-to-date information on fees in the Family Law Court and Federal Circuit Court, and possible reduction in fees - see the Family Court's fee information on their website which contains details of fees in both courts.
Chapter 19 of the Family Law Rules Cth describes the costs solicitors may charge for work done in family law proceedings in the Family Court. Under Rule Costs agreements in relation to work in the Family Court are permitted in accordance with rules When making a costs agreement with a client, a lawyer must advise the client to obtain independent legal advice about the costs agreement.
If the client agrees to enter into a costs agreement, the costs to be charged must be set out in a written agreement signed by the client and the solicitor. Time frames for hearings may vary depending on the nature of the application, how many matters the court already has listed, and whether the application was lodged during a busy period of year i.
Unless the matter is urgent, it is generally first heard approximately six weeks after the application was filed. The parties can represent themselves, and anyone over the age of 18 years can attend. In these cases it should be noted that, even if the other party is breaching existing court orders, the police will not get involved unless there is another court order authorising them to do so. You therefore need to apply for an urgent hearing. The application must be filed with the court and served on the other party immediately, and the matter is heard as soon as possible.
If there are no current court proceedings, you need to use an I nitiating application form. Most new family law applications go to the Federal Circuit Court. You will have to ask for final orders for example, that the child lives with you as well as interim orders. The interim orders you should ask for include an order that the application be heard urgently. You will need to file an Affidavit with your application, in which you explain why the matter is urgent and why you are asking for those orders.
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If there is already a case going through court, the form to use is Application in a case, together with an Affidavit. In cases of extreme urgency - for example, where it is feared that a child may be taken out of the country — you can ask the court to make an order before you have served the application on the other party. This means that the other party is not given notice of the hearing, so the hearing is held ex parte in the absence of the other party. The court usually wants to hear from both parties, so ex parte orders are rarely made.
As with any application, the court can order the surrender of passports including the child's , and may issue a warrant to authorise the police to stop and search any vehicle, vessel or aircraft, or enter and search any premises, in order to take possession of a child. If the court is unable to hear the matter at the time it is listed for trial it may be put off for a further two or three months.
There is however provision for a matter to be listed for trial urgently in certain circumstances. The procedure is to write to the Judges Listing Committee requesting an urgent listing and setting out convincing reasons. Of course there is often a wide gap between the court's perception of urgency and that of the parents. If the Committee is satisfied that the case is urgent, they will give the matter an early pre hearing conference date leading to a trial in a much abbreviated time.
In general, an urgent trial listing should not be expected where the issue of urgency can be adequately addressed by interim orders addressing the situation until trial. How does the Court work out what's in the best interests of the child? When determining what's in the best interests of the child the Court must consider a set of primary considerations and a set of additional considerations [s 60CC].
In applying these two primary considerations the Court must give greater wight to protecting th child from pyhsical and psychological harm [Family Law Act s 60CC 2A ].
Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner. This duty starts at the pre-action procedure stage before the case commences and continues until the case is finalised.
This document deals with possible child abuse or neglect, family violence or other risks to a child. In attempting to resolve a parenting dispute, parties should also, as soon as practicable, exchange copies of documents in their possession relevant to an issue in dispute e. Any documents that have been disclosed can only be used for the purpose of resolving the dispute for which they were disclosed.
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In making any decision about a child the Court will take into account any views expressed by the child, but the weight the Court will give to the child's views will depend on any factors the Court thinks is relevant, such as the child's maturity and level of understanding. There is no rule that says that children of a particular age can make independent decisions about where they may live. There are a number of reasons for this, including the fact that age does not necessarily always match maturity.
However, despite this a number of practical issues will invariably arise, particularly with children aged 16 and over. For example, a child of 17 years is unlikely to be able to be made to follow a parenting order about where they should live. In these circumstances, resorting to the Court to enforce an existing order may be a fruitless task.
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See also, Parental Authority - Case Study which explains the decision in the Gillick case, a children's rights case regarding at what age children are mature enough to make decisions without their parents. It should be noted that children do not give evidence to the Court, nor will the Judge ordinarily see or speak to the children. Rather, the children's wishes are ascertained via a family assessment, or through the appointment of an Independent Children's Lawyer. It is important to bear in mind that children often express to each parent a wish to live with them, and that they may do so out of concern to maintain close contact with that parent and not to lose them from their lives, rather than with an adult understanding of the consequences.
The court may order of its own motion , or when a child or any other person or organisation concerned with the child's welfare applies that the child's interests be independently represented [ Family Law Act Cth s 68L] and ask the Legal Services Commission to arrange the representation. These stipulate that a lawyer may be appointed where:. Rather, they gather evidence to be presented to the court to assist it in determining where the child's best interests may lie.