If you are going through a divorce or separation and you and your partner cannot reach an agreement about your children and parenting arrangements, your case will end up in the Family or Federal Circuit Court of Australia.
Sometimes the court will order the parties (and sometimes the children) to attend an interview with a family consultant. In the Family Court, a registrar, who will make orders about how the case must proceed, often first hears your case, and may order parties to attend a Child Responsive Program. In the Federal Circuit Court, the parties may be ordered to attend a Child Dispute Conference, or a Child Inclusive Conference.
This can be a daunting process, but it also provides you with the opportunity to express your concerns about the children and what you want for your children.
To prepare for this process, you will need to know about Child Dispute Services, Family Consultants, Child Dispute Conferences, Child Responsive Programs and Family Reports. In this article we will aim to provide information about the services available to you, and answer any questions you may have about the process.
CDS are centres comprising of about 80 Family Consultants, employed by the Family Court, and a number of external consultants in each state and territory (excluding Western Australia).
These consultants will conduct expert clinical assessments and provide advice to judges of the Family and Federal Courts of Australia in cases before the courts where the judges need to make decisions about child and parenting arrangements in family matters. They may also provide help to the families in these matters to reach agreements before ending up in Court.
In most cases where there is a dispute about parenting arrangements, the court will order the parents to attend an interview with a family consultant. It could take the form of a Child Dispute Conference, with or without children, or a Child Responsive Conference. This is an opportunity to meet with a family consultant and attempt to resolve issues about the children.
After the interviews the family consultant will prepare a Memorandum to the Court, or a Children Parents Issues Assessment, or a Family Report, depending on the nature of the interview ordered, advising the judicial officer of whether any agreements were reached; what issues are still in dispute and include recommendations on how to proceed with the matter. The main purpose is to assist the Court in making the correct orders regarding the children.
Family consultants are expert psychologists and/or social workers who specialize in family issues after separation and divorce. They have extensive skills, knowledge and experience in this field and they are recognized as expert witnesses in cases involving child matters.
What is the role of a Family Consultant?
Family Consultants are primarily advisors to the Court regarding disputes about the children.
How long does the interview appointment take?
It depends on the type of interview ordered and the complexity of your matter.
Yes, they can provide information and advice about parenting plans, or they can refer you to the right people who can assist. They have expert knowledge in this field and can explain the possible impact of certain arrangements on you and on the children.
Will the consultant prepare a report?
The judicial officer will instruct the consultant to prepare a report, including information about the care, welfare and development of your child. If appropriate, the consultant will try and include your child’s views and opinions in the report. It will only be possible if your child’s age and maturity make it appropriate for him/her to express his/her views.
Firstly, what is a Child Dispute Conference?
It is meeting with a family consultant, ordered by Court, with you and your partner. Your lawyers and children are not included. The purpose of the meeting is to conduct a preliminary assessment and to give the Court an initial understanding of your family situation and the issues in dispute.
The meeting will focus on your child’s needs and what arrangements need to be made. It can assist the judicial officer hearing your case, in making immediate short-term decisions about arrangements for your child/ren.
If time allows, it may assist you and your partner to discuss and reach an agreement about certain issues, or at least attempt to negotiate some of the issues.
Who will be interviewed?
You and the other party will be interviewed separately. You may take a support person with you, but usually they will not be interviewed. The family consultant will also not interview other people significant to your child’s life at this stage.
The aim is to understand the immediate issues in your case and to identify any risk factors. It will also aim to figure out the best way forward in your matter. If needed, the family consultant may suggest speaking to you both together, but it can only happen if you both agree.
Do you need to take any documentation with you?
No, the family consultant has access to all documents (from both sides) filed with the Court.
Will the Consultant provide a report to the Court?
The family consultant will prepare a short document, a Memorandum to Court, containing the assessment of your family. The assessment will focus on the child’s needs. It will include recommendations about what processes and arrangements will assist the Court to decide on the next steps.
It will also advise the Court on what short-term arrangements will be best to meet the child’s short-term care, welfare and developmental needs. If you and your partner reached an agreement it will advise the court of such an agreement.
Will you receive a copy of the Memorandum?
Yes, you or your lawyer will receive a copy before the next hearing date. Sometimes parties will settle matters after the conference, based on the recommendations in the Memorandum.
The Court encourages parties to reach agreements, rather than fight it out in court. If you reach an agreement outside of Court, inform the Court as soon as possible. Don’t wait for the hearing date. If you are able to reach an agreement, you must submit a signed consent order to the Court. If accepted, you might not have to return to court..
What is a Child Inclusive Conference?
It is similar to a Child Dispute Conference, but it includes the children and other adults involved in the matter. Lawyers are not included. The purpose of the meeting is to provide the Court with an understanding of your family situation. It will focus particularly on how your child/ren is experiencing the current family situation.
How are the issues impacting the children?
The outcome of the meeting can help the court to order short-term arrangements for the children. There will also be opportunity for the parties to reach an agreement about parenting arrangements. Take note: Anything said during such discussions may be reported to the Court.
Who will be interviewed?
The consultant will conduct interviews with you, the other party and the child/ren. This can take half a day. The consultant aims to understand the relevant issues in your case and to come up with recommendations for the best way to proceed with your case.
He/she will also seek to identify any risk factors in the situation. You may bring someone to support you, but they may not be interviewed. The consultant will usually also not interview other people significant in your child/ren’s life at this stage.
How will my child/ren be interviewed?
They will be interviewed separately from the adults. No child will be expected or pressured to give their opinions or to express their views. They will be asked about their views and wishes, and given the opportunity to share their views, but it is their choice whether to provide answers.
In some instances the consultant may make observations about the child’s interaction with a party, but this is not part of the purpose of this type of conference.
Do you need to take any documentation with you?
No, the family consultant has access to all documents (from both sides) filed with the Court.
What issues will the Family Consultant focus on?
What are the risk factors in this situation?
Is a Child Inclusive Conference different to a Family Report?
Yes, both the Child Inclusive and the Child Dispute Conferences are preliminary assessments and as such will be limited. It is purely aimed at assisting the Court to make short-term immediate orders, and to then decide on the best way to proceed to finalize the matter. The consultant will provide a Memorandum to Court after the Conference.
A Family Report is far more comprehensive and will provide a more comprehensive assessment of the family situation. This will assist the Court at the final hearing to make long-term orders in the best interest of the child/ren.
When does the Child Responsive Program apply?
It is used for parenting cases in the Family Court of Australia. The Court Registrar may order that you attend a Child Responsive Program if you have not reached agreement by the end of the initial procedural hearing.
What is a Child Responsive Program?
The program involves a number of meetings with the family consultant, the parents (or other carers) and the children. The purpose of the program is to obtain as much information as possible about the child/ren’s needs and to assist the parents and the Court to understand what the child/ren needs and to determine which types of parenting arrangements would best fulfill these needs.
By involving the children, it can also assist the parents to understand how the divorce/separation is affecting their children to understand what would the best arrangements be for future parenting. The process is designed to focus on the best interest of the child.
What happens if we still can’t agree on parenting arrangements?
Your case will be referred to a Less Adversarial Trial. The same family consultant will assist the Court and provide an expert opinion and advice on what would be in the best interest of the child/ren. Before your case gets referred to the Less Adversarial Trial, you will go through the following process.
1. Intake and Assessment Meeting – parents/carers ONLY
The family consultant will write a Children and Parents Issues Assessment. It will include:
You or your lawyer will receive a copy of the Assessment. The feedback in the Assessment can be discussed and often the parties reach agreements about future parenting arrangements without ending up in court.
If you still cannot agree on parenting arrangements, your case will proceed to a Less Adversarial Trial. A less Adversarial Trial is less formal than a conventional trial.
On the first day of this trial the family consultant will testify about their involvement with the family and give evidence based on their understanding of the issues involved in your matter.
The evidence will include an assessment of the child/ren’s needs and the most important issues for the parents/carers. After hearing the evidence, the Court will decide if it needs any further reports, or any other input from the family consultant to assist in making decisions that would be in the child’s best interests.
Take note: If you don’t agree with the Assessment, you should raise your concerns at the first day of the Less Adversarial Trial, or to your lawyer as soon as you become aware of the Assessment.
Do I need to take any documents to any of the Responsive Program steps?
No, you do not need to take any documents with you. The Court will direct the consultant as to what documents should be read. The consultant has access to all filed documents, but will not read any subpoenaed documents, unless specifically ordered by the Court.
What information will the Consultant provide to the Court?
The Children and Parents Issues Assessment will be filed as court evidence.
Will I receive a copy of the Children and Parents Issues Assessment?
Yes, you or your lawyer will receive a copy. You will receive it before the next hearing date. If you are able to settle the matter based on the Issues Assessment, you must inform the Court immediately. Then you might not have to go back to court. You will need to follow the procedure for a consent order.
What happens after the Court made an order?
In some cases the Court may order a post-trial review meeting. At this meeting you and/or the children must meet with the family consultant to discuss the orders that were made. It is to ensure that all involved understand the order and to discuss how the order will be implemented in your daily lives. Parents and the children may be referred to community service programs and counseling for further help.
What happens if the Court orders a Family Report?
Firstly, reserve the whole day for the interview. You might also have to return on another day for further interviews.
In short, it is a comprehensive document written by the court appointed Family Consultant. It will involve all the parties to your matter. It will include an independent, expert assessment of the issues in your case, and it will advise and assist the judge to make a decision about parenting arrangements for your child/ren.
If your matter end up at a final hearing in Court, the Family Report will be admitted as evidence, and the consultant will almost always be asked to appear in court so that the parties may cross-examine her/him. The report may even help you and your partner to reach an agreement about parenting arrangements.
What will the Consultant consider in preparing the report?
Your child’s best interest will always be the main consideration. He/she will recommend arrangements ensuring the best outcome for your child/ren regarding future care, your child’s welfare and any developmental needs specific to your child/ren.
What information will the Family Consultant need to prepare the Family Report?
Generally, the consultant will need all the information relevant to making a recommendation that serves the needs of your child/ren best, including:
Who will be interviewed?
The consultant will interview you and your partner individually. In addition they may interview any other people who play a significant role in the life of your child/ren; including adult siblings, step or half siblings, grandparents and caregivers. The consultant may request your permission to contact teachers, doctors or any other professionals relevant in your child/ren’s life.
They may also interview your child/ren, separately from any adults. If age appropriate, your child/ren will be asked about their own views and wishes, but no child is forced or expected to express their own opinion. The Family Consultant can answer all your child’s questions and explain the process to them.
In addition to the interview, the family consultant will also use the opportunity to observe the interaction between you and your child, and between the child and the other parent. This might take place during a separate observation session.
What will be included in the Family Report?
Can we agree on parenting matters based on the Family Report, prior to the court hearing?
Yes, it is possible to settle based on the information/recommendations in the report. The court encourages parties to reach agreements and will provide assistance if needed. If you are able to reach an agreement, you must sign and submit a consent order to the Court. You may not need to return to Court in that situation. If you can reach an agreement, you or your lawyer should inform the court immediately.
Certain questions and answers are the same whether the Court ordered a Family Report, a Child Dispute Conference, a Child Inclusive Conference or a Child Responsive Conference.
What happens immediately after the Court orders a Child Dispute Conference/ A Child Inclusive Conference or a Child Responsive Conference?
You may be given the date of the conference in court, on the day the court orders the conference. Alternatively, you, or your lawyer, will be notified by phone call or a letter from the Court, of the date and time of your conference. You have to confirm your attendance by calling the National Enquiry Centre.
Do you have to meet with the Family Consultant?
If the court assigned a family consultant to your case, and ordered that you attend a specific appointment, then, yes, you have to see the consultant. The court may order a party to attend such a meeting in terms of section 11F of the Family Law Act 1975.
Your failure to attend will result in a delay to complete the report and it may incur additional costs. If you don’t show up for the appointment, or follow instructions made by the family consultant, he/she must report it to the Court.
Can I change my appointment?
Only, in exceptional circumstances, you may request that the appointment be delayed. You should call the National Enquiry Centre if you have a problem attending the appointment.
How many times do you need to see the Family Consultant?
There is no definite answer; it depends on your circumstances. You will start with an initial conference, and then further conferences, if appropriate, to help you to resolve any disputes, or to assist in implementing suggestions. The Family Consultant may also request to speak with the children.
If you cannot reach agreements, the court may request the consultant to prepare a Family Report for the court. To compile the report, you might need to attend further conferences.
In some cases the court may order that you see the family consultant after the court made the parenting order. This will ensure compliance with the order and assist the family to adjust to the new arrangements.
Is my session with the Family Consultant confidential?
No, it is not. The purpose of the conference is to provide information to the court, and anything that is said can be used in court. The consultant must inform you at the beginning of your session that it is not confidential. Make sure that you understand exactly what the purpose of the conference is and how the information that you provide will be used in court.
Take note: Nothing you say is “off the record”. The consultant is required to include all the relevant information in the report/memorandum.
What happens if I need a confidential consultation?
You may ask the judicial officer or the registrar, to order that you may see a family counselor or a dispute resolution practitioner for a confidential session. Any communications during such sessions are confidential, and cannot be used against you in court. You might end up seeing one of these practitioners and a family consultant.
What if I’m concerned about my personal safety whilst attending the interview?
If you are concerned about your safety while attending an appointment, ordered by the court, or while attending court, you may call the National Enquiry Centre before your appointment or court date.
They will discuss your safety concerns. The court will always take safety concerns very seriously, and a safety plan will be put in place to provide protection to parties attending the appointment or court case.
Is the Family Consultant under obligation to disclose certain things?
Yes, they must notify child welfare if they have a reasonable suspicion that:
What do I do with the children whilst I’m being interviewed?
Some centres provide qualified care staff to supervise the children in a secure area when the child/ren is required to attend an appointment with the family consultant. This ensures that they are in a neutral area and are not exposed to any possible conflict between the adults.
Always confirm whether such a service is available before you have to attend your appointment. If the centre does not provide child care services, you will have to take someone with you to look after your child/ren whilst you attend your appointment.
Can you see the report before it is submitted to the Court?
The consultant may discuss the outcome of the interviews with you, but you and/or your partner, or lawyers can only receive a copy of the report after it was formally released to the Court, but you and/or your lawyers will receive a copy before the court hearing. Take note: Once the report is released, you cannot discuss the content with the family consultant any further.
Can you show or discuss the family consultant’s report/memorandums with third parties?
No, it cannot be shown to any other parties, like family members, unless the Court grants permission. All reports requested by the Court are admissible as evidence in your case. It is only for parties to the case and their lawyers. Take note: This applies even if the other person was interviewed, but is not a party to the court case.
Very important: Sec 121 of the Family Law Act 1975 expressly states that it is an offence “to publish or disseminate to the public, or a section of the public, any part of proceedings under the Act that identifies a party, a witness, or certain other persons”.
Do I need to pay for the services/report of the Family Consultant?
No, if the Court orders a Report or Memorandum by a court appointed family consultant to assist the Court, there is no cost to the parties. However, if the court requires an expert report on an issue that cannot be dealt with by the family consultant, the party may have to pay for an Expert Report. An example would include an assessment and a report by a psychiatrist.
Who pays for your travel cost to attend the appointment?
You are responsible to pay for your and your child/ren’s travel cost to get to the appointment. If this is a problem you should mention this in court.
May I submit an assessment and report by a private professional?
Yes, you may get a private assessment and provide the court with a report from a private professional, but you will have to cover the cost for such an assessment and the report.
What if you don’t agree with the Family Report/Memorandums or Assessments?
The recommendations in the report/memorandums are not final. You can still challenge the content in Court during your hearing. The court is not obligated to follow the recommendations. It is merely evidence that the court will consider in conjunction with all other evidence before making an order.
But the court is inclined to attribute a lot of weight to the report, given that the consultant is an expert and independent witness. Be prepared for the interviews when you attend, the outcome may be crucial to your case.
To challenge the content of the report, you will have to call the Family Consultant as a witness. You need to notify the consultant in writing, at least 14 days prior to the hearing, to be present at court. Use the address as it appears on the court correspondence.
At the hearing you, or your lawyer, can cross-examine the consultant. The other parties may also cross-examine the consultant and the court may ask questions about the content and recommendations in the report. You may also question the methods used to assess the family.
What if I have a formal complaint against the Family Consultant?
You should discuss any formal complaints with your lawyer who can advise you on the merits of your complaint and the process to follow to lodge such a complaint. If you don’t have a lawyer, you should refer to the Complaints Policy of the Federal Circuit Court of Australia, or the Feedback and Complaints Policy of the Family Court of Australia, depending on which court your matter is in.
Preparing for the interviews
Tips for attending an interview with a Family Consultant
What will the family consultant say to your child?
The family consultant will invite your child to talk about their feelings about the family situation. They will answer any questions your child might have. They will listen to what your child wants to talk about.
If your child does not want to talk to the family consultant, there should be no pressure on your child to talk.
Regardless of your child’s age, you can help them by doing the following:
Why am I seeing a Family Consultant?
In this age group your child might have the following concerns:
Why am I going to a Family Consultant?
Explain that now that you have two homes Mum and Dad have to decide on what arrangements will be best for you. How much time will you spend with each..
What is a Family Consultant?
It is a person that helps families to decide these things.
They also want to talk to the children; they are interested to know how you feel about it. The Court is interested in what you think and want; the family consultant can tell the court.
Your brothers and sisters can also go.
What happens at the consultant?
At the Family Consultant, he/she will talk to you and your siblings together.
Then they will talk to you on your own, to find out what you think and feel about your family at the moment. You are not forced to speak with them, only if you want to talk with them.
Who will know what I say?
Explain that the consultant will speak to Mum and Dad to get an idea of how you feel, and discuss what plans will be good for you. So the consultant may discuss what you say with Mum and Dad. And the family consultant will also tell the Court to help make plans that will be the best for you.
What if I’m scared?
If you are worried that what you say might upset Mum or Dad, tell the family consultant. They are trained to deal with such situations.
You do not have to choose between Mom and Dad.
The family consultant is helping to solve problems.
Many other families in your situation have seen family consultants.
What does a Judge do?
If your parents can’t agree on the arrangements, they will talk to a Judge.
This will happen in a courtroom. You don’t go into the court, the family consultant will tell the judge about your feelings and ideas.
The Judge will listen to Mum and Dad and the family consultant and then decide what would be best for you and your family.
What happens after the court day?
Some things might change, or it might remain the same. The family consultant can explain all of that to you.
Although your children might be a bit older, the situation can still be confusing for them. They might be anxious about where they will live, when they will spend time with who and what will happen during holidays. Before seeing the Family Consultant, explain the following to them:
Who is the Family Consultant?
It is a person qualified to help Mum and Dad to solve problems. Many families in your situation see family consultants.
They will answer your questions, they will listen to your ideas and views, and they will tell the judge what you want.
The family consultant is on your side
You can say exactly what you think, and you can decide how much or how little you want to say to the consultant.
You don’t have to talk about upsetting things if you don’t want to.
You don’t have to choose between Mum and Dad.
If you are worried that you will upset Mum or Dad, tell the family consultant. They are trained to deal with that type of situation and you and the consultant can work together to find the best way to tell your parents what you want them to know.
Who will know what I said?
After you spoke to the family consultant, he/she will talk to Mum and Dad about your feelings and wishes. They will try and work out an agreement that works for all of you.
If they can’t agree, they will be referred to a judge.
What does the judge do?
The judge’s job is to decide what is best for you.
Before they make a decision they will ask the family consultant to write a report about your family. This is called a Family Report. The report will be a summary of what you and Mum and Dad spoke to the consultant about. It will include your feelings and wishes.
You can ask the family consultant what will be in the report. If you are worried that it will upset Mum or Dad, tell the family consultant. You can work out what the best way is to discuss this with your parents.
You don’t have to:
Choose between Mum and Dad, or
Go into the courtroom; the family consultant will tell the judge how you feel and what you want. It is their job.
What happens next?
The judge will read the Family Report and talk to your parents in the courtroom. The family consultant will tell the court what is important to you and what you want. The judge will consider everything that can help to make a decision that will be in your best interest.
The judge will then make a decision about parenting arrangements. Things might stay the same, or it might change. The family consultant can explain the decision to you.
It can be a hard time for you and for Mum and Dad, but you are not alone. The judge will always try his/her best to make a decision that is best for you and the family.
If you and your partner can’t agree on parenting arrangements, you need to understand the Child Dispute Services system. Your lawyer may not be allowed to accompany you to the interviews, but you should get legal advice.
Your lawyer can explain the process and help you to prepare for the interviews. He/she will help you to understand your rights and responsibilities. Your lawyer can explain the relevant law to you and may even be able to assist you in reaching an agreement without ending up in court.