Many people are rightly very concerned about bringing parenting matters to the attention of the Courts. The impact upon the children can be significant and no parent would wish to see their child exposed to that unnecessarily.
Fortunately, the Australian court system is also very conscious of this fact and has developed procedures to ensure the impact on children is minimised while their welfare remains at all times the paramount consideration.
The principles are set out in Division 12A of the Family Law Act 1975 and provide as follows:
- The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
- The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
- The third principle is that the proceedings are to be conducted in a way that will safeguard:
- the child concerned against family violence, child abuse and child neglect, and
- the parties to the proceedings against family violence.
- The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
- The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
At the first court event, which will occur after an application and subsequent response have been filed, the parties are encouraged to explore settlement options.
It may be possible for the parties to meet with a family consultant on the first day at court. The Family Consultant will speak to both parties to try and assist them to minimise the issues between them and to move towards settlement. The family consultant will prepare a short report for the court called a memorandum.
If agreement is reached then Orders in the terms of the agreement can be made by the judge on the day.
If settlement is not possible then orders (called directions) will be made regarding the future conduce of the matter. The court will have regard to the content of the memorandum provided by the family consultant in making such orders.
The directions will usually involve the appointment of a further family consultant who will prepare a longer report to the court. The family consultant will also interview the child/children and observe the parents with the children at this stage. The family consultant will make recommendations which are usually very helpful in progressing settlement negotiations.
The main differences in family matters dealt with in this way are that the rules of evidence are not strictly applied, and the judge will play a much more hands on role than has traditionally been the case.
The benefits to you, the client, are immense. The whole procedure is far less intimidating and the likelihood of settlement, as opposed to lengthy proceedings culminating in a full trial, is significantly increased.
