Appearing at the Family Court can be daunting. Even for the most seasoned legal practitioners. This doesn’t mean you can’t prepare yourself. Here is some of what you can expect for Family Court parenting matters.
*Given the current situation with coronavirus, some of these measures may have changed. Please visit the Family Court of WA for the most up-to-date directions or read our blog entries on the impacts of coronavirus on family court matters.
Procedural guidelines for parenting proceedings
The procedural guidelines set out in the Family Court of Western Australia’s Case Management Guidelines and the Family Law Rules 2004 provide the best idea of how a typical case might run.
The guidelines for case management differ, depending on which orders are being sought.
On a basic level, applications seeking parenting orders on a final basis only should follow the general process outlined below:
Child Related Proceedings Hearing (also known as First Return Hearing)
After filing an application for parenting orders with an accompanying certificate from a Family Dispute Resolution (FDR) practitioner or exemption form, a Child Related Proceedings hearing is likely to be scheduled.
This is a litigant’s first opportunity to stand before the Family Court. The hearing will most often be in a Judicial Officer’s Child Related Proceedings list with other cases at a similar stage of proceedings. Occasionally, the matter will be scheduled into a General list. Either way, each matter in the list will be called up for hearing, one by one.
The Judicial Officer’s main concern will be managing the matter in the best interests of the child or children. In a Child Related Proceedings list, a Court appointed Family Consultant will be present to weigh in on any child related issues raised at this preliminary stage. Family Consultants are often qualified social workers or psychologists, with extensive experience working with families in the Family Court system.
According to the Case Management Guidelines, the Family Court may do the following in a Child elated Proceedings hearing:
- make consent orders;
- receive evidence from the parties and/or the Family Consultant;
- consider whether the parties have complied with pre-filing FDR procedures and/or would benefit from further FDR with an external service provider;
- determine if a Case Assessment Conference is required and make appropriate procedural orders for scheduling of that conference;
- for applications seeking both parenting and property determine if a Conciliation Conference is required and make appropriate procedural orders for scheduling of that conference;
- determine if an interim hearing is required and make appropriate procedural orders for scheduling that hearing;
- make any appropriate orders regarding allegations of child abuse or family violence; and
- appoint an Independent Children’s Lawyer
Allocation to a track
During the course of family court parenting proceedings, the parties will be required to advise the Court of the issues involved and update the Court on those that have been resolved. This information can impact upon the estimated length of final hearing (trial) if the matter cannot be resolved by agreement.
Based on this information, cases will be assigned to the appropriate case management track.
In some cases, the appropriate case management track is able to be determined from the outset of proceedings. For example, an application seeking final orders for interstate relocation of a child (that is opposed) is able to be allocated to the Complex Track at the very first Child Related Proceedings hearing. In most cases, the appropriate track becomes apparent as the case progresses. Cases can be re-allocated at any time if circumstances change.
Matters will be allocated as follows:
- Magistrate Track – matters with an estimated final hearing time of not more than 2 days, with no complicated issues of fact, law or evidentiary material.
- Complex Track – matters where:
- the case involves international or interstate relocation of a child;
- the case involves international issues such as jurisdiction;
- the case involves familicide or homicide;
- a Magistrate does not have jurisdiction to hear the case;
- the estimated hearing time for the case is 6 days or more; or
- the case involves complicated issues of fact, law or evidentiary material which would benefit from individual case management by a Judge.
- Standard Track – matters with an estimated final hearing time that exceeds 2 days but does not require allocation to the Complex Track.
Case Assessment Conference
A Case Assessment Conference is conducted by a Family Consultant in a conference room at the Family Court.
The Family Consultant interviews the parties separately, with their lawyers if represented, and will meet with the parties together if they agree to do so. The conference allows the Family Consultant to understand the issues in the case, identify any risks and make a preliminary assessment about how the case should proceed in the short term.
After the conference, the Family Consultant will write a report to assist the Judicial Officer at the next Family Court hearing. The report will:
- Identify relevant issues and risks of the case;
- Make recommendations as to case management options that are likely to help the Family Court resolve the dispute; and
- Make recommendations as to any arrangements that are likely to best serve the child’s/children’s best interests.
A Family Consultant’s report can be used as evidence at later stages of proceedings.
A Procedural Hearing will be scheduled to discuss recommendations of the Family Consultant’s report and any orders that can be made in consideration of the recommendations. At this stage of proceedings, these orders will not be final unless all parties agree to them being so.
The Judicial Officer will determine any outstanding issues in dispute and make case management orders accordingly. Such orders can include the appointment of a Single Expert Witness or programming of an interim hearing.
If the matter is to proceed to a final hearing for determination, parties will be allocated a Readiness Hearing date and the Judicial Officer will make orders for the filing of trial material. Depending on the urgency of the matter and the capacity of the Family Court for parenting matters, this can be some months away but will be eight weeks at a minimum.
Filing deadlines are usually made with reference to the Readiness Hearing. For example, orders may be made for the Applicant’s trial material to be filed no less than 42 days prior to the Readiness Hearing and so on.
A Readiness Hearing is a procedural hearing to make sure a case is ready for trial. This is not an opportunity for further negotiation or argument.
According to the Case Management Guidelines, the parties should be able to satisfy the Court at the Readiness Hearing of:
- the issues of fact and law;
- whether any amendment to an application is anticipated or required;
- compliance with the Family Law Rules 2004;
- Compliance with any previous directions or orders of the Court;
- completion of all necessary interlocutory matters, including disclosure and inspection;
- which of the other party’s witnesses will not be required for cross-examination;
- the availability of counsel and of each witness;
- whether the matter requires a fixed date for trial;
- an accurate estimate of the likely length of the trial;
- whether interpreters, video or telephone facilities are required.
If the Court is satisfied that the case is ready for trial, it may be allocated a callover date (or entered into the list of matters awaiting callover). Further orders will be made to ensure that the case is ready to proceed to trial, including the filing of a callover certificate.
If a party or both parties fail to comply with previous procedural orders and the case is not ready for trial, the Court has a number of options as to how to proceed. For example, the Court may make further procedural orders to prepare the matter for trial, consider dismissal of a defaulting parties’ application or make an order as to costs.
The callover is a procedural hearing in which trial dates are allocated to those matters in the list.
Trial (also known as Final Hearing)
At a trial in the Family Court for parenting matters, each party presents relevant and admissible evidence to support their respective positions on the issues in dispute. Submissions are made advancing each party’s application.
The unique circumstances of each case and the discretion of the presiding Judicial Officer makes it difficult to predict the exact procedure of any given trial.
At the conclusion of a trial, the Judicial Officer should be in a position to make their decision and final orders.
It is important to remember that Family Court parenting proceedings are not linear, particularly when children are involved. Some parenting proceedings can take years to reach a final hearing, in which time children develop and circumstances change.
So long as legislative requirements are satisfied, Judicial Officers have great discretion as to which hearings or procedure are appropriate at any given time.
Issues can arise warranting additional hearings or conferences, that were not foreseen at the outset of proceedings.
For example, a case may diverge from the above guide in circumstances of:
- Settling of a case where parties reach final orders by consent;
- Applications seeking property orders as well as parenting orders;
- Interim applications;
- Costs applications;
- Subpoenas; or
- Judicial Conference.