Family Law Practice Direction – Parenting proceedings

(FAM-PARENTING)

1. Introduction

1.1 This Practice Direction sets out the procedure for all family law proceedings seeking parenting orders or any other order under Part VII of the Family Law Act 1975 (Cth) (Family Law Act), save and except for surrogacy proceedings1, passport proceedings2, medical procedure proceedings3 or child maintenance proceedings4 (parenting proceedings).

1.2 It is to be read together with:

  1. the Family Law Act;
  2. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
  3. Central Practice Direction – Family Law Case Management.

1.3 The parties are directed to refer to Family Law Practice Direction – Financial proceedings in the event the proceeding also involves an application for financial orders. In proceedings where both parenting and financial orders are sought, both Practice Directions apply to the proceeding.

1.4 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.5 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislative provision (whether or not expressly listed above), the act, regulation, rule or other legislative provision shall prevail.

Before a proceeding starts

1.6 Each prospective party to the proceeding must comply with the pre-action procedures in Schedule 1 of the Family Law Rules, unless an exception in rule 4.01(2) applies. Those pre-action procedures require parties to take genuine steps to resolve the dispute before proceedings are instituted.

1.7 A Genuine Steps Certificate must be filed with any Initiating Application (Family Law) or Response to Initiating Application seeking parenting orders.

Risk screening at point of filing

1.8 Each party to an eligible proceeding will be asked to complete the Lighthouse Risk Screen via a confidential and secure online platform (accessible on a computer, tablet or mobile), and may also be referred to a Triage Counsellor.

1.9 Eligible proceedings are defined as proceedings:

  1. seeking parenting orders only, or both parenting and financial orders only;
  2. filed at one of the Court’s family law registries; and
  3. filed after the date of commencement of the Lighthouse model at the relevant family law registry (see paragraph 1.10) (eligible proceedings).

1.10 The commencement date, unless otherwise formally announced by the Court, for the Lighthouse model is:

  1. Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville, Wollongong – 28 November 2022.

1.11 Any other proceeding that does not meet the criteria of an eligible proceeding in paragraph 1.9 will be conducted in accordance with the Court’s case management pathway as outlined in Central Practice Direction – Family Law Case Management.

2. Application

Parties to parenting proceedings

2.1 A parenting proceeding may only be commenced by a person listed in section 65C of the Family Law Act.

2.2 An application must include all necessary parties: see Part 3.1 of the Family Law Rules.

Making an application and documents to file

2.3 A parenting proceeding is commenced by filing an Initiating Application (Family Law), unless the proceeding involves an application for consent orders only (which requires an Application for Consent Orders: see rule 10.04(4) of the Family Law Rules).

2.4 An Initiating Application (Family Law) may include an application for interlocutory orders.

2.5 The following documents must be filed with an Initiating Application (Family Law) in parenting proceedings:

  1. a certificate given to the applicant by a family dispute resolution practitioner under section 60I(8) of the Family Law Act, unless a party submits that an exemption applies under section 60I(9) of the Family Law Act, in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under section 60I(9) is required: see rule 4.02 of the Family Law Rules;
  2. a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
  3. a Notice of Child Abuse, Family Violence or Risk;
  4. unless the Family Law Rules require an affidavit to be filed, a Parenting Questionnaire;
  5. an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules;
  6. a copy of any family violence order affecting the child or a member of the child’s family in accordance with rule 2.10 of the Family Law Rules; and
  7. if the application seeks interlocutory orders, an affidavit stating the facts relied on in support of the interlocutory orders sought.

2.6 The applicant must also pay the filing fee set by regulation, unless an exemption applies. A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.

When an affidavit is required

2.7 An affidavit is not required to be filed with an Initiating Application (Family Law) seeking final orders only.

2.8 Any affidavit filed must be in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.

Urgent applications

2.9 If an application is urgent, the applicant must seek an order that the proceedings be given an urgent listing (urgent application). An urgent application must be accompanied by:

  1. an affidavit stating the facts relied on in support of the urgent application; and
  2. a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.

2.10 If no application for final orders has been made, the urgent application should be included in the interlocutory orders sought in the Initiating Application (Family Law). If an application for final orders has already been made, an urgent application should be made by filing an Application in a Proceeding.

Notifying the other party/parties

2.11 The applicant must serve the following documents on all other parties in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:

  1. Initiating Application (Family Law);
  2. any affidavit filed;
  3. Notice of Child Abuse, Family Violence or Risk;
  4. Any Parenting Questionnaire filed;
  5. Genuine Steps Certificate; and
  6. the Marriage, Families and Separation brochure.

2.12 If an interlocutory order is sought to be made by the Court without notice being given to the respondent (application without notice), the applicant must satisfy the Court of the requirements set out in rule 5.11 of the Family Law Rules. The Court will also send an email to complete the confidential Family DOORS Triage online risk screen detailed in Part 4 below.

What the Court will do next

2.13 Upon filing an Initiating Application (Family Law) and supporting documents, the Court will fix a date as soon as practicable for the first Court event.

2.14 Any application made by a party for an urgent listing will be determined by a Judicial Registrar on the papers.

2.15 If an Initiating Application (Family Law) or Response to Initiating Application is filed without a Genuine Steps Certificate, or before pre-action procedures have been complied with, and no exemption is applicable, the Court may stay the application until such time as the parties comply with the pre-action procedures: see rule 4.04 of the Family Law Rules.

2.16 If an Initiating Application (Family Law) is filed without:

  1. a certificate issued pursuant to section 60I(8) of the Family Law Act;
  2. an affidavit setting out the factual basis of the exception claimed under section 60I(9) of the Family Law Act; or
  3. an Affidavit – Non-Filing of Family Dispute Resolution Certificate,

the Court must stay the application until such time as the applicant complies with the requirements of section 60I: see section 60I(7) of the Family Law Act.

2.17 Prior to the first Court event, each party must disclose documents which may contain information relevant to a parenting proceeding. This includes documents listed in rule 6.05(2) of the Family Law Rules.

3. Responding to an application

3.1 A respondent must file a Response to Initiating Application if consenting to or opposing any of the orders sought by the applicant, or if seeking any other final orders in accordance with Part 2.4 of the Family Law Rules.

3.2 However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the Court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.

3.3 The following documents must be filed with a Response to Initiating Application:

  1. a Genuine Steps Certificate, confirming the respondent’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
  2. if the respondent:
    1. opposes any of the interlocutory orders sought by the applicant an affidavit;
    2. seeks interlocutory orders in their Application in a proceeding and an affidavit;
  3. unless the Family Law Rules require an affidavit to be filed, a Parenting Questionnaire
  4. a Notice of Child Abuse, Family Violence or Risk; and
  5. an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules.

3.4 A Response to Initiating Application must be filed and served within 28 days of service of the application to which it relates: see rule 2.18(2) of the Family Law Rules.

If the Response to Initiating Application raises a different type of proceedings

3.5 In the event a Response to Initiating Application raises financial proceedings or another type of proceedings not sought by the applicant in the application, the parties are directed to refer to Family Law Practice Direction – Financial proceedings or such other relevant Practice Direction. In such cases, both Practice Directions apply to the proceeding.

3.6 Where a respondent raises financial proceedings or another type of proceedings for the first time in the Response to Initiating Application and the applicant seeks to oppose those orders or seek different orders, the applicant must file a Reply with respect to those orders: see rule 2.21 of the Family Law Rules.

4. Family safety risk screening process

4.1 Parties should complete the Family DOORS Triage online risk screen (risk screening process) as soon as possible after filing their initial court documents in order to benefit from safety planning, service referrals and appropriate case management.

4.2 Parties in an eligible proceeding will be asked to complete the risk screen via a confidential and secure online platform (accessible on a computer, tablet or mobile), and may also be referred to a triage counsellor.

4.3 Lawyers should discuss the importance of risk screening with their clients when providing advice.

Party’s personal contact details

4.4 In order to ensure that all parties complete the risk screen, parties and lawyers are requested to ensure that the party’s personal email address and mobile telephone number (personal contact details) are provided to the Court. This information can be provided on a confidential basis.

4.5 Unrepresented parties can provide their personal contact details when filing their Initiating Application (Family Law) or Response to an Initiating Application on the Commonwealth Courts Portal.

4.6 Lawyers are directed to provide their client’s personal contact details when filing an Initiating Application (Family Law) or Response to Initiating Application on their behalf on the Commonwealth Courts Portal.

4.7 Where a party is represented and their lawyer has not provided their personal contact details, the lawyer will be contacted by the Lighthouse Team to obtain their client’s personal contact details for the purpose of the risk screening process via the online Personal Information Form.

4.8 The lawyer must, within 24 hours of receiving such a request, respond to the Lighthouse Team in the form prescribed by providing the personal contact details or alternatively, explaining why their client’s personal contact details have not or cannot be provided.

4.9 Personal contact details provided at the request of the Court will not be disclosed to any other party and will be used by the Courts solely for the purpose of providing a link to the risk screen.

5. Family safety risk screening - Confidentiality and Inadmissibility

5.1 Sections 10Q to 10W of the Family Law Act protect the confidentiality and inadmissibility of any information provided in response to the risk screen. This means that any information or documents obtained (whether orally or in writing) or generated, including whether or not a party to proceedings completed a risk screening process, are:

  1. confidential; and
  2. cannot be used as evidence in Court (whether or not exercising federal jurisdiction); and
  3. cannot be requested by another party.

5.2 This protection also extends to reports prepared, recommendations made or referrals created by a family safety risk screening person, such as a Triage Counsellor.

5.3 Disclosure or exceptions to the confidentiality and inadmissible of family safety risk screening information is only permitted in very limited circumstances, including imminent risk of harm to a child or adult, or child abuse. Further details can be found on the Court’s website and in Part IIA of the Family Law Act.

6. Case Management Options

6.1 The case management of the matter will be determined by either specialist practice direction or the Court’s risk informed case management pathway. Specialist practice directions include Magellan, Evatt, National Contravention List, Critical Incident List, Surrogacy, Medical Procedures or Passport.

6.2 For parties who have completed the risk screening process, the Lighthouse Team, including Triage Counsellors and Judicial Registrars, will consider and determine the most appropriate case management pathway, assisted by an Associate, Legal Case Manager and Lighthouse Support Officer (triage and risk screening process).

6.3 Eligible proceedings will be directed into the most appropriate case management pathway:

  1. High risk cases will be referred for immediate action with a Triage Counsellor who will provide a tailored, clinical review, and will also be referred to an Evatt List Judicial Registrar for consideration to be placed onto the Evatt List, or such other case management pathway as may be deemed most appropriate for the particular case (see paragraph 6.1 of this Practice Direction).
  2. Medium and lower risk cases will be offered safety planning and service referrals as part of the secure online process and will be considered for a range of case management pathways in accordance with the Central Practice Direction - Family Law Case Management and paragraph 6.1 of this Practice Direction.

6.4 The case management pathway allocation will be determined by the appropriate judicial officer taking into account information including:

  1. the results of the risk screening process;
  2. any observations made by the Triage Counsellor;
  3. the Notice of Child Abuse, Family Violence or Risk and any other Court documents filed; and
  4. any relevant information made available to the Court including protection orders or from police or State child welfare departments.

Further information about the Lighthouse model can be found at https://www.fcfcoa.gov.au/lighthouse.

7. Further information

7.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Division 12A of Part VII of the Family Law Act and Central Practice Direction – Family Law Case Management.

7.2 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for further information about parenting proceedings.

 

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021
Updated: 28 November 2022

Footnotes

1 For applications seeking a parenting order in relation to a child born under a surrogacy arrangement, see Family Law Practice Direction – Surrogacy proceedings.

2 For applications seeking orders related to a passport only, see Family Law Practice Direction – Passport proceedings.

3 For applications seeking orders for major medical procedures for a child, see Family Law Practice Direction – Medical procedures proceedings.

4 For applications seeking orders for child maintenance, see Family Law Practice Direction – Child support and child maintenance proceedings.