Procedures and Representation in Care of Children 2004 Act Proceedings
CAN YOU AGREE ON PARENTING ARRANGEMENTS WITH THE OTHER PARTY?
If you have separated, or are in the process of separation, and you have been able to reach agreement on care and contact arrangements for your children, you can apply for a consent order. This is where you ask the Family Court to endorse the agreement you have made and to make a Parenting Order reflecting that agreement.
DO YOU NEED THE FAMILY COURT TO MAKE DECISIONS ABOUT YOUR PARENTING ARRANGEMENTS?
If you are unable to agree on care and contact arrangements for your children, you may wish to seek assistance from the Family Court. There are two ways in which these applications can be made:
On notice applications: These are non-urgent applications where the other party will be notified and provided an opportunity to respond. Before you make an application for a Parenting Order you must have attended (or have been exempt from attending) Family Dispute Resolution (mediation) and should have attended a Parenting Information Course, unless the matter is urgent.
Without notice applications: The Family Court considers that an application is urgent if making the application on notice would result in a risk of serious injury or undue hardship or the risk to the personal safety of yourself or the children. If the Court accepts that there is a real risk, it may issue an interim order which will be in force at the time that the other party is made aware of the proceedings and thus prior to them being given an opportunity to be heard/respond.
WHAT HAPPENS AT A HEARING?
Lawyers have a duty to promote conciliation between disputing parties, and there are several ways in which a dispute can be resolved including through meetings, negotiations or a settlement conference convened by a Judge. Should the matter proceed to a hearing, the Court will hear submissions from your lawyer about the arrangements you consider are in the children’s welfare and best interests and why.
The Court will then hear your evidence, and from anyone else who has provided evidence in support of your case, and there will then be an opportunity for the other party’s lawyer, the children’s lawyer and the Judge to ask you and any other witnesses questions. Your lawyer will follow up with any final questions if required. The same process will then apply for the other party, and the Court will hear from the lawyer for child and any experts (such as psychologists). The Courts decision will be focussed on what it considers is in the welfare and best interests of the children, having regard to the particular circumstances.
CAN A LAWYER REPRESENT YOU?
Without notice applications: If the matter is urgent, a lawyer is able to represent you in the Family Court and legal aid may be obtained if you are eligible.
On notice applications: If the matter is not urgent, a lawyer is unable to represent you in the Family Court until a settlement conference has been held, or a hearing has been scheduled. You may seek legal advice and guidance during this process, however that lawyer is not permitted to attend the Family Court with you or to file documents for you. Legal aid is not available until such time that a lawyer is permitted to represent you.