Court and Dispute Resolution Processes
Parenting plans are written agreements between parties about parenting arrangements for children. They are a means for parties to formalize agreement without obtaining a court order. Parenting plans are not binding or enforceable but they will be taken into account by the Court if a subsequent parenting dispute arises. Further, despite their non-binding nature, a later parenting plan will vary an earlier parenting order unless the latter expressly states otherwise.
Consent orders are orders that are agreed to by the parties. They can be sought by way of settlement of ongoing litigation or by application to the Family Court where there is no proceeding is on foot. As an order of Court, a consent order is both binding and enforceable.
In family law matters, the Court will need to be convinced of certain matters before making an order by consent, namely:
- for parenting orders, that the order is in the child(ren)’s best interests.
- for property orders, that the order is just and equitable.
However, in practice the Court will be more likely to make a given order if the parties are in agreement.
The Family Law Act requires that certain steps be taken to try and resolve a dispute before seeking orders relating to children and/or starting a case in the Family Court.
In general, parties are required to participate in family dispute resolution (FDR) before seeking orders relating to children. An applicant must file a certificate from a registered FDR practitioner as evidence of such participation alongside their court application. In some circumstances the requirement will not apply (e.g. if consent orders are sought) or a party may seek exemption (e.g. if the matter is urgent).
Further pre-action procedures are required to be complied with before initiating a case (whether parenting or financial) in the Family Court, including making a genuine offer to resolve the issues.
A family report is an independent assessment of the issues in a parenting case by a family consultant appointed by the Court. Family reports may be sought by the parties or ordered by the Court of its own motion. While the Court remains the final arbiter of all issues, a family report may be of substantial persuasive weight, with the consultants being qualified psychologists or social workers that are experts in children’s matters. That said, an unfavourable family report may be challenged via cross-examination or, in some circumstances, by leading contrary expert evidence.
Family reports are also the most common mechanism for the Court to gauge the views of children, since they are not allowed to give evidence directly in family law proceedings, and direct interviews between children and judicial officers in chambers are now rarely ordered.