The Federal Circuit Court, which deals with most cases involving children, has started a new initiative to help parents reach agreement about the future care of their children without having to go to trial.
The main difference between this new process and the previous arrangements is that a Court Registrar, as well as a Court Counsellor (rather than only a Counsellor) is involved with parents in two meetings to discuss parenting of children and, hopefully, to reach agreements which can be turned into binding Court Orders.
Step 1: Apply for Parenting Orders
The first step in this new process is that one parent makes an Application to the Federal Circuit Court for parenting orders. This happens if the parents were unable to agree between themselves about arrangements for the ongoing care of their children.
The first time the case goes to Court (usually called the Directions Hearing) either parent can apply to the Court for an Order under Section 13 of the Family Law Act for this new process to begin. This can be done through their lawyers or by a parent if neither parent has a lawyer. The Independent Children’s Lawyer (ICL) can also apply, if one has been appointed.
Step 2: Complete Questionnaire
Once the order for this parenting conference has been made, each parent completes a questionnaire about themselves and the children, including their living arrangements, details of the children’s schools, the parent’s work, how often the children see the other parent and other details. The information provided in the questionnaire allows the Registrar and the Counsellor to understand the background and where each parent is coming from.
The questionnaire is non-confrontational – it does not allow the parent who is completing it to engage in the claims and accusations which so often fill the affidavits of the parents, which will have been filed with the Court before the Directions Hearing. And it’s the parents who fill out these documents, not their lawyers.
Once each party’s questionnaire has been completed it is sent to the other side, the ICL, the Court, and the Registrar.
Step 3: Telephone Conference (Part 1)
The Registrar then arranges a 45 minute telephone conference with the parents, their lawyers, the ICL, the Registrar and the Court Counsellor.
The telephone conference (called Part 1) is designed to clarify the differences between the parents about bringing up their children.
Step 4: Parenting Conference (Part 2)
The next step is the parenting conference (called Part 2) involving the same parties who were at Part 1 telephone conference. The parenting conference will be face to face or by video conference if necessary (for example if there are COVID restrictions or one parent lives too far away to personally attend the meeting).
At the parenting conference, the parties are expected to explore the possibilities of reaching an agreement, on at least some of the issues between them. For example, if the parents have different wishes on how long the children should spend with each of them during the year, can they agree on, say, school holiday time, Christmas/New Year, birthdays, religious holidays? Progress on those issues may lead to an overall settlement, either at the conference or through later negotiations.
Both parties (and the ICL, if there is one) take Minutes of Proposed Orders to the Part 2 meeting, so that everyone can see how close or far apart they are.
In material issued by the Court about this process, the role of the parties’ Family Lawyer is emphasised – they are expected to have a positive input into the conference, encouraging settlement, while at the same time putting forward their client’s case, but in a non-confrontational way.
Step 5: Registrar makes Final Parenting Orders by Consent
If agreement is reached, either the Part1 or Part 2 meetings, the Registrar can make Final Parenting Orders by Consent. This saves both parents the time and expense (as well as the emotional trauma) of having to go through a trial in the Court to determine the future care of the children.
Many attempts have been made over the years to take the heat out of parenting cases. Let’s hope that, with some goodwill on all sides, this new initiative will prove successful.
As always, our Family Law team is here to help you navigate the process of separating from your partner and negotiating agreement on parenting, living and financial arrangements moving forward. Please contact us to book an appointment today.