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CHILDREN'S CASES PROGRAM

  • Part of the substantial amendments to the Family Law Act which commenced on 1 July 2006 , concerning children's matters, is the introduction of the Children's Cases Program (the “CCP”) as the new method of determining contested children's matters at a final trial.

  • If the Original Application concerning your children was filed in the Family Court on or before 30 June 2006 you have the choice to opt into the CCP rather than having your matter determined through a traditional contested Trial.

  • If the Original Application concerning your children was filed on or after 1 July 2006 , the new legislation presecribes that the children's aspects of the any final hearing in your matter will be determined in the CCP. Property matters will be determined separately in the traditional way.

  • Generally the differences between a traditional hearing and the CCP are as outlined below:-

  The Traditional Process CCP
PROCESS More adversarial process – the Judge addresses the legal representatives of the parties and not the parties directly, you must stand when addressing the Judge, parties sit behind the bar table and not with their legal representatives, the proceedings are more formal than the CCP. Less adversarial process – the parties will sit at the bar table beside their legal representatives, no one stands when addressing the Judge, the Judge addresses the parties as well as their legal representatives, the proceedings are less formal than the Traditional Process.
FILING MATERIAL Parties determine what material to file subject to procedural orders and Rules of Court.

No party is to file or serve any document without leave first being obtained from the Hearing Judge.

The Judge determines what material is to be addressed in affidavit material.
PROCESS TO TRIAL

The first appearance is mediation. There is an early focus on helping the parties resolve the issues between themselves with the guidance of a mediator.

Judgment will only be given when all evidence is presented at the conclusion of a final hearing. This way the Judge has all of the information before him/her and is in a position to make a fully informed decision. 		The Hearing commences from the first appearance or intake event. Judgment may be given in specific parts, rather than one event at the conclusion of the hearing.
IDENTIFICATION OF ISSUES

The issues in dispute are guided by the Rules of Evidence and can only be admitted into evidence by way of affidavit.

This approach provides a ‘check and balance' approach in determining what is admissible or not.

The issues in dispute between the parties are defined at the outset and on an ongoing basis.

As the Rules of Evidence are waived (discussed below), more issues which ordinarily would not be relevant, can be brought into evidence.

DETERMINATION OF FACTS A Judge makes a finding of all issues at the conclusion of the hearing. A ‘pre-judgment' of the issues by a judge is a ground to appeal the judge's decision.

The Judge may continue to hear and determine the case regardless of whether he/she makes findings in relation to issues during the Hearing.

The exercise of this power by the Judge shall not provide a basis for his/her disqualification from continuing the Hearing.
EVIDENCE LEAD The evidence that can be called is determined by the Rules of Evidence. The Judge will set limits upon what evidence may be called and what material can be subpoenaed.
HOW EVIDENCE IS LEAD
  • l evidence of the parties is by way of affidavit. The evidence that is included in an affidavit is relevant to the facts in issue and is drafted after considerable time and in compliance with the Rules of Evidence.
  • Each party is then cross-examined on the content of their Affidavit.
  • Both parties have an opportunity to formally object to the evidence of the other party.
  • On the first day of the Hearing all parties, and the mediator, will be administered an oath or affirmation. Thereafter anything said by the parties to the Judge is part of the evidence.
  • There are no formal objections to evidence.
  • The judge can make orders about what issues affidavit material should address.
RULES OF EVIDENCE

The Rules of Evidence apply to the admissibility of all evidence. Under the Evidence Act there can be objection taken to any of the following matters. The judge must decide whether the objection is valid and exclude inadmissible evidence.

  • Hearsay evidence, opinion evidence, admissions, evidence of prior convictions, tendency and coincidence evidence, credibility and character evidence;
  • the order, manner and form of questioning of witnesses;
  • leading questions, hostile or unfavorable witnesses, re-examination;
  • the form of questions, prior inconsistent statements and production of documents;
  • proof of content of documents.
Section 190 of the Evidence Act will apply, which leads to a waiver of many aspects of the Rules of Evidence.
ADMISSIBILITY OF EVIDENCE The Rules of Evidence apply. This means that objections to evidence can be made by the parties and determined by the Judge. Whilst all evidence is conditionally admitted, a Judge continues to have discretion in relation to relevance, reliability and weight.
Evidence that is improperly or illegally obtained will be excluded. Same.
COMMUNICATION WITH THE JUDGE
  • The Judge only addresses the parties legal representatives unless the parties are self represented.
  • The Judge does not hold private discussions with anyone. The evidence before the Judge is what is filed in the court via affidavit material.
  • The Judge may address the parties directly, whether they are legally represented or not. This is at any stage of the proceedings.
  • The Judge may hold private discussions with a party. These discussions are recorded and a transcript made available to the other party.
JUDICIAL OFFICER A Judge will preside over the final Trial, but you may appear before several different judicial officers during procedural and interim Hearings before the Trial. The same Judge will preside over the case. This may become difficult depending on the court resources and the amount of matters in the Program.
USE OF MEDIATION

Mediation is not conducted during a Hearing.

Mediation sessions are conducted prior to the trial with court appointed mediators to conduct mediations. Anything that is said in the mediation session is confidential and cannot be used in the proceedings.

The Judge may use mediation techniques during the Hearing.

Mediation conducted in the course of the Program is not confidential and what is said in mediation is admissible.
ROLE OF CHILDREN A child does not usually actively participate in the proceedings, except through Family Report interviews. The Judge may see and interview a child in chambers and make Directions as to who can be present during that interview. This would normally be a Court Mediator and/or Independent Children's Lawyer.
INDEPENDENT CHILDREN'S LAWYER The Independent Children's Lawyer can discuss matters on a ‘without prejudice' basis with the Family Report Writer. Same.
RIGHT TO APPEAL The time for lodging an Appeal also commences to run at the conclusion of the final Hearing.

The time for lodging an Appeal against any order made will not commence to run until the conclusion of the Hearing and the making of the last orders in the Hearing.

No right of Appeal as to consent to enter into the program.
  • If the originating Children’s Application in your matter was filed on or before 30 June 2006, we will provide you with specific advice at the time your matter mentioned for a Trial Notice (Directions for Trial) as to the advantages and disadvantages of each process in your particular situation and provide you with our recommendation as to whether you should choose to opt into the CCP or not. Please note that both parties to the Application must agree to opt into the CCP. If one party does not agree then the matter is automatically determined under the traditional process.
  • The Children’s Cases Program is only relevant to Applications which are determined on a final basis in the Family Court of Australia. The Federal Magistrates’ Court of Australia has its own procedures and protocols which at this stage does not include the Children’s Cases Program. For this reason when your matter is set for a Mention so that the Court can issue a Trial Notice we will also discuss with you the possibility of having the matter transferred to the Federal Magistrates’ Court if this is more appropriate based upon the circumstances of your individual case.

Last updated 15 Feb 2008

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