Going to court

What the Court will consider

The Court will decide what parenting orders to make based on what’s in the best interests of your child. What is in the best interests of a child is determined on a case-by-case basis according to the needs of each child.

There are six factors the Court must consider when deciding orders are in the best interests of your child:

1. what arrangements would promote the safety of your child and every person who cares for your child – this includes people who don’t have parental responsibility for your child, such as grandparents and relatives
2. your child’s views
3. your child’s developmental, psychological, emotional, and cultural needs
4. the capacity of you and the other party to meet the needs of your child
5. the benefits of your child having a relationship with both parents, and other people significant to their care, welfare, and development, where it is safe to do so, such as grandparents and relatives
6. anything else that is relevant.

When considering what are safe arrangements, the Court must consider:

• any history of family violence, abuse or neglect involving the child or a person caring for the child, and
• any AVOs that are in force, or have expired, to protect your child or a family member.

The weight that the Court gives to your child’s views will depend on your child’s age, maturity, or level of understanding. Older children’s views may be considered more significant than the views of younger children.

While the Court must consider your child’s views, it must also consider all of the other factors relevant to deciding what orders are in the best interests of your child. The Court won’t make orders based solely on your child’s views.

If your child is Aboriginal or Torres Strait Islander, the Court must also consider:

• your child’s right to enjoy their culture, by having the support, opportunity and encouragement necessary to:
  • connect with, and maintain their connection with, family, community, culture, country, and language, and
  • explore to the full extent of that culture, consistent with your child’s age, stage of development, and views, and
  • develop a positive appreciation of the culture, and
• the likely impact any proposed parenting order will have on your child’s right.

For more information, see Children: We cannot agree on the Federal Circuit and Family Court of Australia website.

Child Impact Report

A Child Impact Report is a preliminary assessment of the issues in new parenting matters. It is focused on:

• your child’s views, needs and experiences, and
• any risk issues.

It is used to:

• guide you and the Court about the needs of your child
• help you and the Court understand your child’s experiences, including the impact of separation and family changes on your child
• support interim hearings and Family Dispute Resolution.

It is prepared by a Court Child Expert, a qualified psychologist or social worker with specialist knowledge in child and family issues after separation and divorce.

A Court Child Expert will prepare a Child Impact Report after they have interviewed you, your ex-partner, and your child, and observed your child interacting with you and your ex-partner.

The Court doesn’t have to follow the advice in the Child Impact Report.

You don’t have to pay for a Child Impact Report.

For more information, see Child Impact Report – FAQ on the Federal Circuit and Family Court of Australia website.

Family Reports

A Family Report is an independent, comprehensive assessment of a child’s family circumstances. It contains a detailed analysis of:

• your child’s best interests, including your child’s views and wishes
• family relationships
• the issues in dispute
• any risk factors
• the orders proposed by you and your ex-partner.

Where possible, a Family Report will also contain recommendations regarding what arrangements will best meet your child’s needs.

It is prepared by either a Family Consultant or Court appointed Expert – a psychologist, psychiatrist, or social worker with specialist knowledge in child and family issues after separation and divorce.

The Family Consultant or Court appointed Expert will write the report after they have interviewed you and your ex-partner, other relevant people and your child, and observed your child interacting with you and your ex-partner.

The Court doesn’t have to follow the recommendations contained in the Family Report.

The Family Consultant can also be called by either party to give evidence about the report at the final hearing.​

You don’t have to pay for a Family Report.

For more information, see Family Reports FAQs on the Federal Circuit and Family Court of Australia website.

Safety at court

If you are concerned about your safety while attending court, you should speak to the Court registry at least five working days before the hearing.

The Court can take steps to ensure your safety, including:

• using the safe room
• entering and leaving the courthouse from a different exit attending by telephone or video
• having a support person at court closing the Court to the public
• excluding certain people from being in the courtroom.

For more information, see Safety at court on the Federal Circuit and Family Court of Australia website.

Interpreters and court support

If you need an interpreter, you should arrange one before the hearing.

If you can’t afford an interpreter, the Court may arrange one for you. You should contact the Court at least two weeks before the hearing to arrange an interpreter.

For more information, see Interpreter policy and guidelines on the Federal Circuit and Family Court of Australia website.

If you have a disability, medical condition or other special needs that means you require support from the court, you should contact the Court at least one week before the hearing.

For more information, see Court support on the Federal Circuit and Family Court of Australia website.

You can bring a support person with you to court. This may be a friend or relative. Your support person will not be allowed to speak for you or sit at the bar table with you.

Independent Children’s Lawyer

In parenting proceedings, the Court can appoint an Independent Children’s Lawyer (ICL) to represent your child.

The ICL will provide information to the Court about your child’s views and what parenting arrangements are in their best interests.

When deciding what arrangements are in your child’s best interests, the ICL will:

• read all of the affidavits and documents filed with the Court
• read any subpoenaed documents, including school or medical records
• talk to your child, unless your child is under school age, or there are exceptional circumstances
• talk to the family consultant and other relevant people, including your child’s doctors, counsellors, school teachers and principals
• question witnesses, including you and your ex-partner and any experts, at the nal hearing.

For more information, see the brochure What is an Independent Children’s Lawyer?