Proceedings in relation to children may be instituted in the Local Court of a state or territory, but will remain in that court only if both parties consent: ss 69J and 69N of the Family Law Act 1975.

Proceedings for parenting orders will most commonly be instituted in either the Family Court (of Australia or in Western Australia the Family Court of Western Australia) or the Federal Circuit Court. Different court Rules will apply in each case and practitioners need to consider which court will best suit the needs of the parties and have regard to the Practice Directions which provide guidance as to which matters should be commenced in the Family Court of Australia or the Federal Circuit Court of Australia. In WA, matters are commenced in the Family Court of Western Australia.

Increasingly, it is generally more appropriate to file in the Federal Circuit Court, unless the issues in the case appear complex and difficult from the outset. Complex cases would include cases involving allegations of sexual abuse of the children, extreme family violence, relocations overseas, special medical procedures or cases in which there are multiple parties. Cases without such complex features are generally better done under the simpler Federal Circuit Court Rules.

It should be noted that the Family Court Rules 2004 differ from the Federal Circuit Court Rules 2001 and that different documents may be required at the time of filing and different procedures followed thereafter.

See Which court?

Note to practitioners in Western Australia: This guidance note does not apply to family law proceedings in Western Australia.

Part VII Div 12A of the Family Law Act 1975 sets out the principles for conducting child related proceedings.

These procedures are known as the “less adversarial trial”, or LAT, process. The essential principles of the LAT process are:

• the court is to consider the needs of the child and the impact that the proceedings may have on the child;

• the court is to actively direct, control and manage the conduct of the proceedings;

• the proceedings are to be conducted in a way that will safeguard the child and the parents against family violence;

• the proceedings are to be conducted in a way that will promote co-operative and child focused parenting; and

• the proceedings are to be conducted without undue delay and with as little formality as possible.

The LAT process can involve a significant departure from the “normal procedure” followed in courts and care must be taken to understand and comply with the court’s requirements.

See Less adversarial trial procedures.

The court has the power to order that a child be independently represented: see s 68L(2). The court has well established principles as to when such an order should be made: see Re K .

See Independent children’s lawyer.

There are a number of ways for the voice of the child to be heard in the court proceedings, the most common of which is by the family report process.

In almost all cases that proceed to a hearing in either the Family Court or the Federal Circuit Court, a family report will have been ordered to have been prepared and will be available to assist the judge determine the outstanding issues.

Part VII, Div 3 of the Family Law Act makes provision for the ordering and receiving into evidence of a family report .

See Family reports.