Child-related proceedings

  • Guidelines for Independent Children’s Lawyer (2013).
    Open via Family Court of Australia website
    Open via Federal Circuit Court of Australia website

    ‘The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the family law courts, with information about the courts' general expectations of ICLs. The Guidelines set out these expectations as they relate to children in circumstances where allegations of child abuse and/or family violence are made, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Strait Islander children, and where applications arise for the authorisation of special medical procedures and other orders relating to the welfare of children.’

    See in particular at section 6.4 (p 6) –

    ‘The ICL is to remain independent, objective and focused upon promoting the child's best interests in all dealings throughout the proceedings. The parties and their legal representatives should be encouraged to be non-adversarial where possible and to maintain a focus on the child's best interests. The ICL should promote this approach whenever appropriate.’

  • Indigenous Action Plan Family Court of Australia 2014-16.
    Open via Family Court of Australia website

    This Indigenous Action Plan 2014–2016 aims to address the following identified barriers that exist for Aboriginal and Torres Strait Islanders when accessing the Family Court of Australia:

    • a lack of understanding about the family law system among Aboriginal and Torres Strait Islander clients
    • resistance to engagement with, and even fear of, family law system services
    • literacy and language barriers
    • a need for indigenous specific and culturally competent mainstream services
    • the challenges arising from lengthy and multi-step Court processes for Aboriginal and Torres Strait Islander clients
    • the setting being based on Western notions of child-rearing, kinship and family, and concerns as to whether they operated in a culturally safe way; and
    • lack of access to services for communities in regional and remote areas (pp 5-6).

    See in particular ‘Action 28’ at p 15, which deals with ‘Reviewing the accessibility and appropriateness of court processes for Aboriginal and Torres Strait Islander people in particular in regional and remote areas and promoting those processes such as the less adversarial trial, which may be particularly appropriate for Aboriginal and Torres Strait Islander court users. This would include consideration of the development of national protocols on the use of indigenous interpreters in the family law system.’

  • Less Adversarial Trial Handbook (2009).
    Open via Family Court of Australia website

    This handbook provides extensive guidance in relation to ‘Less Adversarial Trials’ (LAT) for cases involving children in the family court. It is generally relevant. Section 69ZN (Division 12A) of the Family Law Act 1975 (Cth) sets out 5 principles that are the focus of the LAT. The report summarises these principles -

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

      1. the child concerned against family violence, child abuse and child neglect and
      2. the parties to the proceedings against family violence’
    • Principle 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.
    • Principle 5: The proceedings are to be conducted without undue delay and with as little formality as possible’ (p 11).

    Further, in determining the layout of the courtroom, the judge should consider a range of factors. These factors include cultural and family violence issues (p 26).

  • Reconciliation Action Plan 2014-2016: Federal Circuit Court of Australia.
    Open via Federal Circuit Court of Australia website

    This document explains the jurisdiction of the Court, including is family law jurisdiction, and the Court’s aspirations for engagement with Aboriginal and Torres Strait Islander (ATSI) people. A key focus is on formulating ways to assist ATSI litigants to better understand the nature of the Court’s role, how it decides parenting arrangements for children in separating families and how the Court processes work. It is noted that the Family Law Act 1975 (Cth) requires the Court to consider family violence issues when making decisions about children and to protect children and parents who are victims of family violence. The Family Law Act 1975 (Cth) also requires the Court to consider a child’s ATSI heritage and that their children have a right to know and enjoy their ATSI heritage.