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Protecting Children: Urgent Application to the Court for Parenting Orders

06/12/2021

Parenting Applications are commenced in the Federal Circuit and Family Court of Australia by the filing of an Initiating Application. 

In normal circumstances, the parties are required to have first obtained a s60I Certificate prior to commencing proceedings.  This is a Dispute Resolution Certificate to prove that the parties attempted dispute resolution before the Application is filed in the Court. 

In some circumstances however when matters are urgent, proceedings are commenced without the filing of a Dispute Resolution Certificate.  Sometimes matters are commenced with a Certificate but become urgent. The Court will need to hear and decide the case urgently.  The Court will list the case for an Interim Hearing.

What will be regarded as urgent? – Filing Parenting Application without Section a s60I Certificate

In circumstances where there is no Section 60I Certificate and urgent Parenting Orders are required, an Application can be filed in the Federal Circuit and Family Court of Australia.  However the Application must be accompanied by an Affidavit of the non-filing of Dispute Resolution Certificate.  This sets out the facts and circumstances which will be considered by the Court to decide whether the case requires an urgent hearing as requiring urgent listing. 

These matters include:

  • Allegations of child abuse.
  • Risk of child abuse.
  • Family violence.
  • Risk of family violence.
  • Application being made in respect of a particular issue.
  • A contravention of an existing Parenting Order.
  • Someone contravening the Order has shown a serious disregard for their obligations under the Order. 
  • Circumstances of urgency. 
  • Inability to participate effectively in family dispute resolution. 
  • Whether a Section 60I Certificate has been issued in other proceedings.

Watson & Watson commenced urgent Application for protection of child

Watson & Watson acted for the mother in circumstances where physical harm had occurred to the school aged child.  The mother and father had separated but there was an arrangement in place for the child to live with the mother and for the child to spend time with the father.  The father had been previously married and had teenage children from that first marriage who also lived with their mother but spent significant time with their father.  At a time when the child was spending time with the father, one of the father’s other children assaulted the child causing injuries. 

The father did not inform the mother of the injury and did not seek medical assistance.  The mother learned of the assault and injury when the child returned to her care and sought urgent advice as to what should be done. 

Interim Hearings – Limited Time and Resources

The Court has only limited time and resources to resolve matters at an Interim Hearing. This type of Hearing is conducted on the basis of the Affidavits filed and written material and there is no cross-examination.  The Court therefore does not have the opportunity that it would have in a fully prepared and contested final hearing, to determine matters of fact and will not have available to it, helpful evidence such as medical family reports.  The Judge will need to determine the case by taking into account the paramount consideration which is what is in the best interests of the children.

How Does the Court Conduct an Interim Hearing

In the case of Goode and Goode the Full Court provided and set out the principles that would be applied by a Judge in terms of conducting and deciding an Interim Hearing.  The Judge would be requested to:

  1. Identify the competing proposals of the party.
  2. Identify the issues of dispute in the interim hearing.
  3. Identify any agreed or unconsented relevant facts.
  4. Consider the matters set out in section 60CC of the Act. 
  5. Decide whether the presumption for equal shared parental responsibility is in the best interests of the child or that it does not apply, because there are reasonable grounds for leave if there has been abuse, family violence, which will rebut the presumption. 
  6. Determine whether it is in the best interest of the children for the children to spend equal time with each parent.

Preparation for Interim Hearing

In another recent case, Watson and Watson acted for the mother in circumstances where the father had sole parental responsibilities of the children pursuant to Orders made many years before but in circumstances where, the father had decided that the children would spend no time with the mother.  The mother was not spending any time with the children – The situation was urgent. 

Watson & Watson prepared the case by:

  • Drafted an Application setting out the Parenting Orders sought by the mother on an interim basis (to take effect before the final hearing) and on a final basis after the final hearing.
  • Prepared an Affidavit setting out the mother’s evidence in relation to her Application and supporting her Application. 
  • Prepared a Case Outline Document setting out the information and submissions so as to properly present the case in accordance with the requirements of Goode and Goode

Watson & Watson obtained the following Orders benefiting the mother:

  • Time with the children commencing immediately.
  • Time with the children overnight.
  • Time with the children during school holiday. 
  • Time with children on special occasions. 

Outcome

In this matter Watson & Watson Lawyers obtained an urgent listing of the matter and the matter was referred for Interim Hearing.  At the Interim Hearing, the Court made Orders in relation to parenting preventing the child from spending time with her father and with her father’s other child being present.  In other words, the child was protected by removing the child who had assaulted her from the father’s household on all occasions when the child would be there.  The Interim Hearing also resulted in the Court appointing an Independent Children’s Lawyer for the child and Orders were made for participation of the parties in dispute resolution.

Often times parenting and contact arrangements can be fraught with difficulties and not in the best interest of the child or children.  Our Senior Family Law Solicitors at Watson & Watson can assist you in all contact/parenting matters to ensure that the parenting orders in place are in the best interest of your child/children.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant to discuss your matter and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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