If you are unable to resolve arrangements about your children with your former spouse or partner, since 1 July 2007 unless there are issues such as urgency, child abuse or family violence, you must first participate in family dispute resolution counseling. You cannot go straight to Court. If you do not settle your dispute in counselling (whether or not the other parent attends) you will receive a certificate to confirm your attendance. This must be filed with your Court Application. The next question is, which Court?
You can file an Application in the Family Court of Australia (“FCA”) or the Federal Magistrates’ Court (“FMC”). There are many differences between the Courts. Often for reasons of time, fees, the nature of the dispute or the nature of the one’s former partner, one Court may be preferable.
The FMC applies a “traditional” approach to parenting cases and usually hears property and parenting cases between parents at the same time. You must set out the relevant background of your case in an Affidavit when you first file your Application. If the case reaches a Final Hearing your representative (usually a Barrister) argues on your behalf and calls witnesses as the representative considers appropriate. The Magistrate, within some limits, allows each parent pursue their case as they see fit.
If you choose the Family Court, your parenting case is likely to be dealt with as a “Less Adversarial Trial” (LAT). In LATs, FCA Judges take a more active role than a Federal Magistrate would in the FMC. Affidavits are not normally filed until shortly before the final hearing. The Court will arrange questionnaires and reports to clarify what the Court considers are the main issues. During the trial, the Judge has more freedom to stop a line of questions or to ask their own questions. Both parents are expected to communicate directly with the Judge, whereas in a more traditional trial you would usually be taken through your evidence by your lawyer and be cross-examined by your former partner/spouse’s lawyer. Financial disputes will not be decided under the LAT system unless both parents agree to it. This can mean that effectively two cases must be run, leading to extra costs.
If you consider you would have difficulty putting matters before a Court yourself, you wish to make less obvious arguments, or you want to determine financial matters as well, you may prefer the FMC. This will allow more freedom in deciding the arguments made, and in allowing your legal representative to put your case on your behalf. If it is more important for you to have your say, or your case relies on more straightforward arguments, you may prefer the FCA. We recommend that you seek legal advice before making a decision as there is no one rule for every case.