Australia: What to expect on the first return date

Regardless of whether it is a parenting or property dispute, the Federal Magistrates Court expects that even represented parties will attend all court events to provide instructions.

This is extremely important, as particularly in parenting matters, even a supposedly simple mention can be transformed into an interim hearing. Principals should also note that there have been costs orders made recently against non-attending parties. If there is an unavoidable and cogent reason why a party cannot be present in court, it is vital that that person at least be available by telephone to give instructions.

It is expected by the court that anybody appearing, whether as solicitor on the record or as agent, will have a sufficient understanding of the matter to fully inform the court of all relevant matters.

Parenting Matters

In all parenting matters the court will expect that anybody appearing will have the following information at their fingertips:

  • the details of the relationship, such as commencement date, date of separation, ages and state of health of the parties;
  • the relationship of the parties to the child or children (eg are there grandparents or stepparents involved, or are the parties the biological parents) 
  • the names and dates of birth of each child; 
  • whether there are any special circumstances such as illness or disability affecting any child; 
  • whether or not there has been any participation in Family Dispute Resolution; 
  • whether there are allegations of family violence or child abuse, and if so whether a Form 4 has been filed or is proposed to be filed; 
  • whether it is appropriate to appoint an Independent Children's Lawyer; 
  • details of the orders sought by each party.

Given this, it is very important that you provide complete instructions (including copies of pleadings and affidavits) to any agent appearing on your behalf.

The court is particularly focussed on appropriately dealing with allegations of violence, abuse and neglect. Accordingly, if issues such as family violence are significant in your client's matter you should consider filing a Form 4 well prior to the return date, as this document usefully distils the relevant issues for the court, for the ICL and for any family consultant. If the allegations are extremely serious, such as allegations of child sexual abuse, then the matter will likely be transferred to the Family Court.

Form 4

The Notice of Child Abuse or Family Violence is now, mysteriously, the only form that carries a number.

It is important when filling this form out that you pay very careful attention to the rules, as abuse is a defined term in the Act and the court may reject a Form 4 that, for example, incorrectly cites a risk of family violence as a risk of abuse. It is also important to properly cross reference affidavit and subpoena material in the Form 4 so that it is clear to a reader just what allegations are being raised and what evidence supports those allegations. If the Form 4 is unclear, incorrectly drafted, or simply refers to general allegations without properly identifying any underlying evidence, it will likely irritate the Federal Magistrate and potentially damage your client's credibility.

The Re K factors

In Re K (1994) FLC 92-461, the Full Court of the Family Court of Australia identified the sorts of cases in which an Independent Children's Lawyer ought to be appointed. These cases are as follows:

  1. Cases involving allegations of child abuse, whether physical, sexual or psychological. 
  2. Cases where there is an apparently intractable conflict between the parents. 
  3. Cases where the child is apparently alienated from one or both parents. 
  4. Where there are real issues of cultural or religious difference affecting the child. 
  5. Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare. 
  6. Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare. 
  7. Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children. 
  8. Any case in which, on the material filed by the parents, neither seems a suitable custodian. 
  9. Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent. 
  10. Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child. 
  11. Cases where it is proposed to separate siblings. 
  12. Parenting cases where none of the parties are legally represented. 
  13. Applications in the Court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

It is important to be familiar with the above factors, since even if your client does not want an ICL to be appointed, if some of these issues are present either the other party can seek an appointment of an ICL, or the court can do so of its own motion. If your client is not legally aided, this will have costs consequences for your client, as the Legal Aid Commission requires a contribution be paid by the parties toward the ICL's costs.

The allocation of parental responsibility on an interim basis

S 61DA(1) establishes the presumption of equal shared parental responsibility; nevertheless, there are three distinct circumstances that affect the presumption.

In summary, the presumption does not apply in the following circumstances:

  1. if there are reasonable grounds to believe that a parent or person who lives with them has engaged in abuse or family violence (s61DA(2));
  2. in the case of interim orders, if the court considers it would not be appropriate (s61DA(3)).

The presumption applies, but is rebutted, by evidence that equal shared parental responsibility would not be in the child's best interests (s61DA(4)).

We know from the Full Court's decision in Goode & Goode that the court cannot make a parenting order, even on an interim basis, without either applying the presumption or dealing with the other parts of the section. While the court can decide it is not appropriate to apply the presumption in interim proceedings (61DA(3)) there must be some reason for this, which can be as simple as that it is not possible to determine rival factual accounts on an interim basis, as Collier J did in Goode & Goode at first instance (an approach that was approved of by the Full Court).

Some judicial officers take this obligation very seriously and will not make consent orders that do not allocate parental responsibility without first hearing extensive argument on the issue; others will take the somewhat pragmatic approach that if parties are at loggerheads on parental responsibility but agree on an interim basis to some time arrangement, that is enough to satisfy them that it is not appropriate to apply the presumption.

Interim Hearing

It is vital that the material filed by your client is sufficient to support their case through an interim hearing. Even if your client is not seeking to have the matter dealt with on an interim basis, a Federal Magistrate may well agree to conduct an interim hearing at the request of the other party or on his or her own motion. While issues of procedural fairness carry significant weight, it is nevertheless true that any court event can develop into an interim hearing, and once made, interim orders have a habit of remaining intact until final hearings, which can be many months in the future. Given this, thorough preparation of matters and adequate briefing of agents are vitally important, even at the first return date stage.

Property Matters

Generally, if both parties have filed their documents (that is, Application or Response, affidavit and Financial Statements) the court will, provided the matter is ready to proceed, set the matter down for a conciliation conference.

The exception is if the matter has been transferred to the FMC after an unsuccessful conciliation conference in the Family Court, in which case the court will move toward setting the matter down for hearing.
Whether the matter is to be referred to a conciliation conference or set down for hearing, it will be expected that whoever appears will be able to provide the court with a clear outline of the following issues:

  • details of the relationship;
  • the size of the property pool or pools, including superannuation; 
  • whether or not there is disagreement about the value of any asset, and how the parties propose to deal with that dispute (eg by the appointment of a single expert valuer or by settling on an agreed value); 
  • the issues in dispute (that is, whether the argument will revolve around any or all of issues of inclusion of an asset in the pool, value, contribution or s 75(2) matters); 
  • details of the orders sought by each party; 
  • if a splitting order is sought, whether the relevant superannuation trustee has been accorded procedural fairness by being served with a copy of the proposed orders; 
  • if the matter is to be set down for a hearing, the number of witnesses to be called, details of what each non-party witness will be addressing, and an estimated hearing time.

If any of these details are unable to be provided to the court it is possible that the matter will be adjourned with costs consequences, so it is vital that whoever attends court, whether principal or agent, is properly prepared.

The advantage to the client is that maximum use can be made of the court's time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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