Child-related proceedings

Part VII, Division 12A of the Family Law Act 1975 (Cth) and Part 5, Division 11A of the Family Court Act 1997 (WA) contain the provisions relating to the conduct of child-related proceedings. Section 69ZN FLA and Section 202B FCA set out the five principles governing the conduct of proceedings relating to children as follows:

  1. 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.
  2. The Court is to actively direct, control and manage the conduct of the proceedings.
  3. The proceedings are to be conducted in a way that will safeguard:

    • the child concerned against family violence, child abuse and child neglect, and
    • the parties to the proceedings against family violence.
  4. The proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
  5. The proceedings are to be conducted without undue delay and with as little formality as possible.

The Family Court of Australia has a particular case management approach for parenting matters known as the “Less Adversarial Trial” (LAT). The LAT process encourages an issue-based focus and has the benefit of judicial consistency, greater control by the judicial officer over the proceedings and the admission of and weight given to evidence, and early disclosure of dysfunctional behaviour and how it may be addressed.

The Family Court of Australia has published a resource, the Less Adversarial Trial Handbook, intended to assist judicial officers and legal professionals in developing a better understanding of the LAT process.

Research indicates that cases involving allegations of domestic and family violence may present additional challenges as the objective of parents setting aside their conflict and working cooperatively to achieve a shared parenting arrangement may work against the interests of the party experiencing violence. Allegations of domestic and family violence may require a factual determination as to their veracity. The safety of children and other parties at risk of violence is paramount, while also ensuring that the party experiencing violence has the opportunity to engage in the proceedings. It may be more difficult than usual for a person who has experienced violence to be self-represented and to have to conduct their own proceedings.