The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the Courts) acknowledge that family law matters can be extremely difficult and complex. The vast majority of parents in Australia resolve their parenting and financial arrangements following separation without the need to engage with the Courts. This means that the families who come to the Courts seeking help to resolve their disputes, especially those that continue to a trial, generally have complex needs and circumstances. Like all families, every case is different, and every decision is made on the evidence before the Court, with the safety and best interests of children as the paramount consideration.
When reporting on such cases, great care must be taken, particularly because views sought from only one parent or carer may not reflect all of the evidence that was presented to the Court, and may not be impartial.
On 7 September 2026, the Herald Sun published the first in a series of articles about the Courts.
Prior to publication of the stories, the Courts offered the reporter an opportunity to speak to some of the Courts’ experts, and access to anonymised judgments of the cases they were featuring – neither of these offers were accepted by the reporter. Having access to the judgments would have allowed the reporter to check the evidence (of both parties) and the facts that were presented in the cases, and to understand the reasons for the decisions made by the Court. Unfortunately, the reporter would not provide the case names and so the Courts could not provide them with the judgments, or provide a more fulsome response before the stories were published.
Therefore, it is necessary for the Courts to now address the unsubstantiated claims published in the articles which have the potential to mislead the public.
- The articles claim the Courts send children to abusive parents, relying on unverified data from 20 cases.
- The Courts reject any suggestion that children are routinely placed in harm’s way. Every parenting decision is based on the evidence presented and the child’s best interests. The safety of each child, including consideration of any risk of abuse or family violence, is a mandatory consideration in assessing the best interests of every child.
- Where risk is identified, the Courts can impose supervision, protective conditions, injunctions and other safeguards. The Courts can, and do, make orders that a child spend no time with a parent if that is what is required to ensure the child’s safety.
- The FCAN material is based on a small, self-selected and non-peer-reviewed sample. It cannot support broad conclusions about a system that receives over 100,000 filings each year.
- The articles claim that allegations of family violence and sexual abuse are routinely dismissed, minimised or not believed.
- The Courts take allegations of child abuse and family violence extremely seriously.
- The Courts do not assume allegations are true or false. They assess all available evidence and determine what arrangements best protect the child’s safety and welfare.
- Risk screening, specialist case management, information-sharing arrangements and judicial education have been substantially strengthened in recent years. All Judges, Registrars, Court Child Experts and staff receive world-leading education in identifying and responding to family and sexual violence, including coercive and controlling behaviours.
- The existence of an allegation does not remove the Courts’ obligation to make findings fairly and on the evidence.
- The articles claim that children are “silenced”, their wishes are ignored and that their views have no impact on decisions.
- The Courts recognise the importance of carefully considering children’s views.
- The law requires the Courts to consider a child’s views where appropriate, but decisions cannot be based solely on a child’s stated preference.
- Children’s views are considered alongside all other evidence, with the weight given to them depending on factors including the child’s age, maturity and other circumstances.
- The Courts employ a specialist workforce, the Court Children’s Service, who have expertise in assessing the impact of family separation on children. Children interviewed by Court Child Experts have the opportunity to give their views, which are then put before the court.
- Independent Children’s Lawyers are also appointed by the Courts, particularly in high risk matters, and have an obligation to meet with children unless it is not age-appropriate to do so. The role of the ICL is specifically to advocate in the best interests of the children, which may be different to the positions of the parents or carers.
- The articles claim that judges authorise extreme force, police use force to “drag children away”, and recovery orders traumatise children.
- Recovery orders exist to enforce lawful parenting orders and protect children from unlawful removal or retention in contravention of court orders.
- The Courts make recovery orders only where considered necessary and lawful.
- The Courts do not authorise extreme force to be used, and have no power to do so. How a recovery order is acted upon is a matter for the enforcing agency.
- Without sufficient details to identify the case, the Courts cannot review or respond to the individual circumstances reported.
- The articles claim that family violence intervention orders become meaningless because Family Court orders prevail.
- The relationship between federal family law orders and state and territory protection orders is governed by legislation.
- The Courts require parties to file a copy of any intervention order with their application in every parenting case.
- Consideration of the existence of an intervention order (or other family violence order) is mandatory when assessing arrangements in a child’s best interests, but, does not alone determine the parenting arrangements.
- The Courts make thousands of information sharing orders every year to ensure that relevant information held by police and child protection agencies is available to the Courts to inform decision making in the best interests of children.
- The articles describe the Courts as a “closed shop”, “accountable to nobody” and lacking transparency.
- Privacy safeguards in family law proceedings protect children and vulnerable families from public identification. They are set by legislation passed by Parliament.
- Family law proceedings are conducted in open court and members of the public can attend and view proceedings.
- Anonymised judgments explaining the Courts’ decisions are routinely published online and are freely available for the public to read.
- The Courts are also accountable through legislation, appeal rights, judicial complaints mechanisms, parliamentary oversight, annual reporting and independent review.
- The articles claim that the Courts are routinely used by perpetrators as an extension of coercive control.
- The Courts recognise that legal processes can be misused to cause financial or psychological harm. This is known as systems abuse.
- Judges and staff are trained to identify patterns of systems abuse, while preserving procedural fairness and legitimate access to justice.
- The Courts can manage vexatious, harmful and unmeritorious proceedings, including by restricting further proceedings and making appropriate costs and case-management orders.
- Recent reforms have strengthened the Courts’ ability to address misuse of litigation. Information about these measures was provided to the Herald Sun before publication.
The Courts’ provided the Herald Sun with the following responses to their questions ahead of publication (Herald Sun questions in bold):
Research by the Family Court Accountability Network found that in cases of serious alleged abuse, children are frequently ordered into the sole custody of alleged abusers and their disclosures are often disbelieved. How does the Court respond to these findings?
The Courts take allegations of child sexual abuse, family violence and other risks to children extremely seriously. In every parenting matter, the Courts are required by law to regard the best interests of the child as the paramount consideration, and does so.
The Herald Sun refers to research carried out by the ‘Family Court Accountability Network’. Among other issues, the research report does not identify its authors or their qualifications, provides limited information about the organisation behind it, and draws broad conclusions about "systemic" issues from a small, unrepresentative sample of published judgments, without peer review or the perspectives of other participants in these matters. The Courts caution that the purported research and apparently selective data put forward by the Network is not reliable and has the potential to be misleading.
Importantly, the Courts have a transparent, accessible process by which third party requests for access to data to inform research on the Courts is received, documented on the Courts’ website.
Critics and legal experts say perpetrators exploit legal processes to financially exhaust victims and force them into unrepresented litigation. What safeguards does the Court use to identify and stop litigation abuse? Is the Court planning to do more in this space?
The Courts recognise that legal processes can themselves be misused as a means of continuing coercive control, including by imposing financial and psychological harm on another party. The Courts’ judges and staff are highly trained to identify patterns of systems abuse, and have introduced measures that address systems abuse while preserving procedural fairness and legitimate access to justice.
The Family Law Act 1975 (Family Law Act) gives courts specific powers to deal with unmeritorious, harmful and vexatious proceedings. This includes powers to make a "harmful proceedings order” preventing a party from commencing further proceedings without leave where there are reasonable grounds to believe further proceedings would cause harm. The Courts have already exercised these new powers. The Courts also have broader case management, costs and procedural powers available to address misuse of litigation and regularly use them.
Legal services highlight a dangerous ongoing disconnect between magistrates’ courts and the Family Court. How is the Court addressing information-sharing gaps to ensure historical family violence is identified before parenting orders are made?
Since late 2021, significant reforms have been implemented to strengthen information sharing between the federal family law courts and state and territory systems.
Importantly, through the Co-location Program, child protection and police officials are physically based in or near family law court registries in every state and territory. The officials provide the Courts efficient access to important information about a family or individuals, such as family violence orders that have made in the state courts.
The National Strategic Framework for Information Sharing provides for nationally consistent two-way information sharing between the federal family law courts and state and territory courts, child protection, police and firearms agencies. Since May 2024, strengthened provisions in the Family Law Act have also given the family law courts enhanced powers to obtain information about family violence, child abuse and neglect from prescribed agencies. The Courts routinely seek and consider information provided by state and territory child protection authorities and police in parenting matters.
The Courts support continued improvement in timely, secure and proportionate information sharing and stronger coordination across jurisdictions.
Does the Court support accountability reforms for family report writers?
It is important to distinguish between report writers engaged by or working under the supervision of the Courts (known as Court Child Experts and Panel Family Consultants), and private report writers engaged directly by court users.
Court Child Experts and Panel Family Consultants undertaking reports for the Courts are subject to clinical governance, quality assurance arrangements, professional development and supervision. Their reports are expert evidence, not judicial decisions or determinative recommendations, and the Courts are not bound by them.
The Courts support strong professional standards, quality assurance and accountability for experts giving evidence before the Courts. The regulation of private family report writers is a matter for government.
We have data related to court-ordered hair tests where the majority of subjects who are victims of domestic violence return negative drug results. These tests are expensive and paid for entirely by them on the Court’s orders, often early in proceedings when little evidence is put forward alleging a drug risk. Would the Court consider requiring higher evidentiary thresholds before ordering testing, or shifting costs to the accuser if results are negative?
The safety of children is the Courts’ priority, and parties involved in family law proceedings often seek orders for a party to participate in drug or alcohol testing. The results of such tests may form part of evidence that assists the Court to make orders that are in the best interests of the child involved in those cases. There is no prescribed approach to who pays for the testing as the circumstances in each case will differ.
Is the Court aware of criticism that ELISA (enzyme-linked immunosorbent assay) tests frequently submitted are known not to detect certain drugs?
The Courts do not mandate or endorse a particular commercial laboratory or toxicology methodology.
Critics and advocacy groups argue that section 121 restrictions shield the Court from public scrutiny and accountability rather than solely protecting privacy. How does the Court respond?
The publishing restrictions under the Family Law Act (no longer section 121 but section 114Q through to section 114S) do not prohibit reporting or scrutiny of the Courts, judicial reasoning or family law more generally.
Family law cases are conducted in open court and any member of the public, including journalists, can attend, observe and report on those proceedings, so long as the parties, children, witnesses and associated people cannot be identified through that reporting.
This restriction on identifying parties is an important legislative safeguard for children and families involved in often sensitive parenting and family law disputes.
In addition, (anonymised) judgments that explain the reasons for decisions made by the Courts are routinely published online and are accessible for the public to access.
The publication provisions in Family Law Act were enacted by Parliament and any changes would be a matter for government.
How does the Court respond to calls that the FCFCOA should be dissolved and replaced by state courts which deal with parenting and protection/criminal matters under one roof?
The FCFCOA operates very effectively nationally. However, the structure and jurisdiction of Australian courts are matters for parliament and government.
Are there any reforms in the works that respond to criticism of the Court?
The Courts have made significant changes in recent years and continue to review and strengthen their family violence response and engagement with people with lived experience, specialist services, legal assistance providers, governments, researchers and other stakeholders.
Recent and continuing reforms include:
- Family Violence Best Practice Principles
- Family Violence Plan
- Lighthouse and the specialist Evatt List for early identification and management of family-safety risk;
- the Magellan List for serious child abuse matters; strengthened information sharing with police and child protection agencies;
- the national Safety at Court Protocol and improvements to safe facilities;
- Indigenous Family Liaison Officers and Specialist Indigenous Lists;
- Child Impact Reports and other child-focused initiatives (such as Kids’ Corner on the FCFCOA website and the Childrens’ Charter); and
- ongoing education on family violence, coercive control, systems abuse and sexual violence.
The Courts have publicly identified three continuing priorities: strengthening responses to family-violence risk and safety, addressing systems abuse within family law proceedings, and improving equitable access to justice.
