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Law Notes > Family Law Notes

Process Notes

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This is an extract of our Process document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


Application of the principles

  1. The court must give effect to the principles in this section:

  1. in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and

  2. in making other decisions about the conduct of child-related proceedings.

Failure to do so does not invalidate the proceedings or any order made in them.

  1. Regard is to be had to the principles in interpreting this Division.

Principle 1

  1. 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.

Principle 2

  1. The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

  1. The third principle is that the proceedings are to be conducted in a way that will safeguard:

  1. the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

  2. the parties to the proceedings against family violence.

Principle 4

  1. 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.

Principle 5

  1. 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.

Section 69ZP - Powers under this Division may be exercised on court's own initiative

The court may exercise a power under this Division:

  1. on the court's own initiative; or

  2. at the request of one or more of the parties to the proceedings.

Section 69ZQ - General duties

  1. In giving effect to the principles in section69ZN, the court must:

aa) ask each party to the proceedings:

  1. whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and

  2. whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and

  1. decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and

  2. decide the order in which the issues are to be decided; and

  3. give directions or make orders about the timing of steps that are to be taken in the proceedings; and

  4. in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and

  5. make appropriate use of technology; and

  6. if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and

  7. deal with as many aspects of the matter as it can on a single occasion; and

  8. deal with the matter, where appropriate, without requiring the parties' physical attendance at court.

  1. Subsection(1) does not limit subsection 69ZN(1).

  2. A failure to comply with subsection(1) does not invalidate an order.

Section 69ZR - Power to make determinations, findings and orders at any stage of proceedings

  1. If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

  1. make a finding of fact in relation to the proceedings;

  2. determine a matter arising out of the proceedings;

  3. make an order in relation to an issue arising out of the proceedings.

Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

  1. Subsection(1) does not prevent the court doing something mentioned in paragraph(1)(a), (b) or (c) at the same time as making final orders.

  2. To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection(1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

Section 69ZS - Use of family consultants

At any time during child-related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings.

Note 1: Family consultants have the functions described in section11A. These include assisting and advising people involved in proceedings, and this assistance and advice may involve helping people to better understand the effect of things on the child concerned. Family consultants can also inform people about other services available to help them.

Note 2: The court may also order parties to proceedings to attend, or arrange for a child to attend, appointments with a family consultant. See section11F.

Section 69ZT - Rules of evidence not to apply unless court decides

  1. These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

  1. Divisions3, 4 and 5 of Part2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections26, 30, 36 and 41;

Note: Section26 is about the court's control over questioning of witnesses. Section30 is about interpreters. Section36 relates to examination of a person without subpoena or other process. Section41 is about improper questions.

  1. Parts2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

  2. Parts3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

  1. The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection(1).

  2. Despite subsection(1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

  1. the court is satisfied that the circumstances are exceptional; and

  2. the court has taken into account (in addition to any other matters the court thinks relevant):

    1. the importance of the evidence in the proceedings; and

    2. the nature of the subject matter of the proceedings; and

    3. the probative value of the evidence; and

    4. the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

  1. If the court decides to apply a provision of a Division or Part mentioned in subsection(1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

  2. Subsection(1) does not revive the operation of:

  1. a rule of common law; or

  2. a law of a State or a Territory;

that, but for subsection(1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

Section 69ZV- Evidence of children

  1. This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.

  2. Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.

  3. The court may give such weight (if any) as it thinks fit to evidence admitted under subsection(2).

  4. This section applies despite any other Act or rule of law.

  5. In this section:

"child" means a person under 18.

"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.

Less adversarial trial

  • The Less Adversarial Trial is used in parenting matters to limit the harm of the legal process for children.

  • It is closely directed by the judge and aimed at encouraging parents to focus on arrangements in the best interests of children. It is also meant to cost less, spend less time in court and provide more flexible solutions.

  • A family consultant acts as an expert advisor to the judge and parties.

  • A final evaluation report of the program by Professor Rosemary Hunter found that the process assisted parents to parent more cooperatively. Many parties were found to have benefited from speaking directly to the judge, irrespective of whether they were legally represented. It is an active and engaging process which allows judges and family consultants to confront and challenge parents about the impact their conflict is having on their children.

  • Note: s 62G (copied above) is the section about reports by family consultants – in that a report may be made for children under 18 if the court directs one to be made because it is desirable (they may adjourn proceedings to have one made). This report must include the wishes of the child – but they ascertain the wishes because a child is not cannot be required to express their views.

  • Also s 69ZN sets out the guiding principles for the LAT (above in process).

Children’s evidence under the Family Law Rules 2004

Part 15.1Children

15.02 Restriction on child’s evidence

  1. A party applying to adduce the evidence of a child under section 100B of the Act must file an affidavit that:

  1. sets out the facts relied on in support of the application;

  2. includes the name of a support person; and

  3. attaches a summary of the evidence to be adduced from the child.

NoteFor the procedure for making an application in a case, see Chapter 5.

  1. If the court makes an order in relation to an application mentioned in subrule (1), it may order that:

  1. the child’s evidence be given by way of affidavit, video conference, closed circuit television or other electronic communication; and

  2. a person named in the order as a support person be present with the child when the child gives evidence.

NoteSubsections 100B(1) and (2) of the Act provide that a child (other than a child who is, or is seeking to become, a party to a case) must not swear an affidavit and must not be called as a witness or remain in court unless the court otherwise orders.

15.04 Family reports

If a family report is prepared in a case, the court may:

  1. release copies of the report to each party, or the party’s lawyer, and to an independent children’s lawyer;

  2. receive the report in evidence;

  3. permit oral examination of the person making the report; and

  4. order that the report not be released to a person or that access to the report be restricted.

Family reports

  • Answer in conjunction with s 62G and the rules of evidence.

  • Rule 15.02 of the Family Court Rules 2004 makes it clear that kids cannot give evidence in court without the court’s consent. The court must give specific permission – either orally or by affidavit. This consent is rare.

  • So how does the child’s interests get communicated? The family report is the standard way to get information about what the children think. An independent children’s lawyer often comments on what is already there in the report.

  • Also see 15:04. It discusses who may view the family law report.

Section 62G - Reports by family consultants

  1. This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.

  2. The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

  3. If the court makes a direction under subsection(2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.

(3A) A family consultant who is directed to give the court a report on a matter under subsection(2) must:

  1. ascertain the views of the child in relation to that matter; and

  2. include the views of the child on that matter in the report.

Note: A person cannot require a child to express his or her views in relation to any matter (see section60CE).

(3B) Subsection(3A) does not apply if complying with that subsection would be inappropriate because of:

  1. the child's age or maturity; or

  2. some other special circumstance.

  1. The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.

  2. For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).

Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section11E).

  1. If:

  1. a person fails to comply with an order or direction under subsection(5); or

  2. a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection(5);

the family consultant must report the failure to the court.

  1. On receiving a report under subsection(6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.

  2. A report given to the court pursuant to a direction under subsection(2) may be received in evidence in any proceedings under this Act.

McKee (1976)

  • Father was unhappy about something said in court because he did not have a chance to respond – he had to travel several hours to the registry of the court and the welfare officer could only spare him ten minutes or so – he thought this was prejudicial and should be excluded from evidence.

  • Wood J: Family reports are not subject to the normal rules of evidence. Welfare reports can make a substantial and valuable contribution in determination of questions of child placement – and the court should be able to rely with confidence upon facts reported and the views expressed in the report. However, reports can be prepared inadequately, without adequate time for investigation necessary to produce a balanced view. In this situation the court decides what weight to give to the family report.

  • In these circumstances, the report was unbalanced and prejudicial. Therefore no weight was placed on the report, apart from the uncontested ground that the child wished to return to their mother.

Hall v Hall (1979)

  • General observations.

  1. A judge is not bound to accept a family report and there should be no suggestion that the counsellor is usurping the judge.

  2. Family Reports are meant to be and usually are valuable and relevant material to assist a judge – when their views coincide with the judgement it is because the judge has found them consistent with the evidence before him.

  3. The counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted by which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviews, may be different from the opportunity in court to cross examine people – and they may prove to be of a different character than what the counsellor has accepted.

  4. Sometimes the family report will be neutral.

  5. Whatever the reports, it will still serve the court well and assist the court’s investigation.

Judge must not dispense with examining the parties and hearing oral evidence

Wood (1976)

  • TJ failed to cross examine the parties or hear any oral evidence. Instead he directed the parties to have appointments with a psychiatrist, including other family members.

  • Full Court: s108(2) allows the court to dispense with formalities and procedures as it sees fit with the consent of the parties, and to inform itself on any matter in such a manner as it thinks just. This power does not absolve the court or the parties from the responsibility of ensuring that the best evidence available is before the court.

  • Welfare reports can be of great assistance in contested custody cases – it can provide an objective analysis of the circumstances of each party and the children and their relationships.

  • The court’s desire to exclude irrelevant material, allegations and cross examination should not lead the judge to exclude completely the oral testimony of the parties. In doing so, the judge loses the opportunity of seeing and hearing them and forming an opinion of them.

  • The court cannot order parties or children to attend a psychiatrist or counsellor. The court may suggest this and if the suggestion is followed, the court counsellor may assist. Judge cannot attach consequences to an order like this. Appears to cast an onerous burden on court counsellor to ‘police’ the parties, which the court seeks to avoid.

  • Decision to invoke or not invoke criminal jurisdiction in relation to an assault should not be pressured by the judge. The judge may advise the possible benefits etc of abandoning the charges – not pressure etc.

Rule about standing

  • S 65C is the rule about standing. A child may apply if they get standing under this section. You would need legal representation.

Section 65C - Who may apply for a parenting order

A parenting order in relation to a child may be applied for by:

(a) either or both of the child's parents; or

(b) the child; or

(ba) a grandparent of the child; or

(c) any other person concerned with the care, welfare or development of the child.

Examination of children:

Section 102A - Restrictions on examination of children

  1. Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.

  2. Where a person causes a child to be examined for the purpose of deciding:

  1. to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or

  2. to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused; subsection(1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.

  1. In considering whether to give leave for a child to be examined, the court must have regard to the following matters:

  1. whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;

  2. the qualifications of the person who proposes to conduct the examination to conduct that examination;

  3. whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;

  4. any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings;

  5. any other matter that the court thinks is relevant.

  1. In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:

  1. the evidence relates to relevant matters on which the evidence already before the court is inadequate; and

  2. the court will not be able to determine the proceedings properly unless the evidence is admitted; and

  3. the welfare of the child concerned is likely to be served by the admission of the evidence.

  1. In this section:

"examined" , in relation to a child, means:

  1. subjected to a medical procedure; or

  2. examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).

Note: Section69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the law against hearsay.

In the matter of P (a Child) (1993)

  • Custody dispute. Husband alleged to have sexually abused child. Husband sought examination of the child.

  • Applied s 102A.

  • Full Court: Custody cases are still conducted within the broad confines of the adversary system, but that is in my view clearly subject to the overall fundamental principle of the welfare of the child or children. The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.

  • The rights to ‘natural justice’ with respect to the disputants are qualified to the extent that those rights encroach on or are in conflict with the obligation that the court must consider the child’s interests as paramount.

  • The husband wanted examinations of the child – in his favour is that he may be denied natural justice if he were not entitled to the orders which he sought – however, he also had not give any explanation as to why for two years he did not take any steps to seek the orders.

  • HOWEVER, those factors aside, the decisive consideration is the welfare of the child. The child has been subject over 2 years (she is only 5) to an excessive number of examinations and investigations. They may have had a serious effect upon her. It could not possibly be said that further examinations are in her interests or welfare. They will force the child to again go over painful experiences and recollections with little prospect of the litigation or the child’s welfare being advanced.

  • The child can look to the Court to protect her from abuse by litigation (i.e. protection from system abuse) – further orders for examination denied.

Independent children’s lawyers

  • The independent child’s lawyer represents the children’s best interests – it is best interests representation, not what the child wants necessarily.

68L Court order for independent representation of child’s interests

  1. This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration.

  2. If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:

  1. may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

  2. may make such other orders as it considers necessary to secure that independent...

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