AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
Wishes of Children Children do not give direct evidence in Austral - ian court proceedings. Questions of the wishes of children, or what they say about particular incidents, are placed before the court through a variety of other means. These include: • submissions made by an independent chil - dren’s lawyer in appropriate cases; • statements the children make and wishes they express to a parent or other witness in the proceedings; and • statements the children express to an expert who is providing a report to the court. It is often the case that the independent chil - dren’s lawyer will interview children, so they can actively canvas (where appropriate) the wishes of the children. It is also permissible for judges to interview children in chambers; however, this only occurs in extraordinarily rare cases, as it is a process often fraught with difficulty and is counter-productive. Where an independent chil - dren’s lawyer has been appointed, then courts often ask the independent children’s lawyer to explain to the children the final decision made by the court. 3.4 ADR Parties to Australian parenting proceedings are required, before they start any case in the court, to make genuine steps to resolve the matter. There are however a number of exceptions – the primary being where there are issues of family violence that would prevent a party from safely participating in ADR. Pre-Action Procedures Except in cases of urgency, parties seeking par - enting relief in Australia must take genuine steps to try and resolve matters outside of the court system before instituting proceedings under
the Family Law Act for parenting matters. This requires, in general terms, that parties:
• exchange disclosure materials; • make proposals for settlement; • participate in ADR; and
• give prior notice of the intention to start a case, including identifying the matters in dispute and the orders that will be sought if proceedings need to be commenced under the Family Law Act. Enforceability of Settlement Australian law only recognises a limited number of ways in which parties can make an enforce - able agreement between them. Informal agree - ments between parties, even if on an open basis and in writing, are not of themselves capable of enforcement such as to bring to an end litigation. Parties can make a parenting plan, which is signed and dated, about some/all of parenting matters. There is no requirement that each party first take legal advice. Although not an enforce - able agreement, the terms of a parenting plan will be taken into account by a court in subse - quent proceedings. To make an enforceable agreement, parties need to record its terms in an order, which is submit - ted to the court for consideration. The parties do not need legal advice, but must sign a docu - ment acknowledging their right to obtain prior independent legal advice. The parties must also file with the court a notice identifying any issues of risk, abuse or neglect and how the proposed order addresses those matters. 3.5 Media Access and Transparency Under Australian law, it is an offence (subject to various exceptions) to publish or disseminate information that identifies the parties to a pro -
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