Children's Cases Re-invented
The Family Court Children's Cases Program

Publish Date 4 April 2006

By Silvio Auditore, Accredited Specialist, Auditore Specialist Family Lawyers

The purpose of the new Family Court Children's Case Program is to "examine a new way of conducting family law litigation … intended to alleviate some of the problems associated with the current adversarial system of determining a dispute".

What's Wrong with the Old System?

The adversarial system allows the Lawyers involved to generally dictate the way in which a case is conducted in court. Often each parent presents evidence about the other parent's past in the hope of convincing the Judge that he or she would be a better parent in the future. Thus, in an effort to champion the client's cause, a lawyer can call many witnesses, cross-examine witnesses at length, take objections to evidence, call witnesses to discredit other witnesses and generally adopt whatever tactic is necessary in order to make "the enemy" look bad. However, when the Court is concerned with cases about the welfare of children, all of this legal maneuvering does not really assist the parents involved in achieving the best outcome for the children. It serves to further alienate family members from each other (as if a separation was not enough alienation in itself!) and to focus on past events rather than future relationships.

The Children's Cases program reduces the adversarial nature of the proceedings and enables parents (and the Court) to focus upon a beneficial outcome for the children. The Children's Cases Program aims to reduce the complexities of children's cases and respond to the needs of children- with an active role being taken by the Judge.

The Law is the same, it is the process and the approach that is different

Although the way in which a case is heard will be different, the law is the same. The Family Law Act requires the Judge to regard the best interests of the child as the paramount consideration. The parties to the dispute and their lawyers all sit together at the Bar Table. It is not just the Lawyers and the Judge doing the talking- the clients are encouraged to be active participants and there will be less formality than usual. The same Judge will hear your case until a solution is reached, either by agreement or by his or her decision. However, if an agreement cannot be reached, the Judge will make the final determination.

What happens in Court?

On the first hearing date, the parties will have usually already had a session with the counsellor/mediator assigned to the case who will have prepared a short report for the court. The same counsellor/mediator and Judge will be involved for the duration of the case. The parties take an oath or affirmation and are advised that everything said from that point forward forms part of the evidence in the hearing. Each party is given an opportunity to summarise to the court his or her view of what the dispute is about. The counsellor/mediator is also in court and is available to provide further information and opinion if required. The Judge may then express his or her views and put up suggestions for speedy resolution. If the parties cannot reach a resolution in this way then the Judge will give directions as to the further conduct of the case including the evidence to be given and the witnesses required.

The project aims to have matters completed within 3 months of the first hearing date, quite a contrast to the usual 12 to 18 month delay otherwise encountered under the old system.

My firm conducted the first case in the Melbourne Family Court Children's Cases Program earlier this year before Justice Dessau. We are pleased to report that with assistance and direction from the Judge, this case was resolved and Final Orders were made on the first day on which this case went to court.

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