What is The Family Law Pilot?
Starting on 4 March 2019 the Northern Territory Local Court will be trialling a new approach to child protection proceedings. During the Family Law Pilot (the pilot), the Local Court will have the option to make family law parenting orders rather than child protection orders if all parties and the CEO of Territory Families are in agreement.
The making of parenting orders may result in Territory Families being able end their involvement with the family and allow for the family to have greater certainty and control over where children live and who they spend time with.
This can all be done in the one court without the need for the family to commence additional proceedings in Family Court.
The pilot aims to improve access to justice for families and allow the Local Court to have more options when it comes to making orders about children.
What matters are eligible for the pilot?
The Local Court can only accept a matter to take part in the pilot if the following five criteria are met:
1. There has to be either:
(a) existing child protection proceedings;
(b) an existing child protection order; or
(c) Territory Families have safety concerns for the children.
2. There has to be a desire for a Family Law order to be made
3. The parties to the matter are either within the Darwin region or are within the Katherine region and willing to access proceedings through the Darwin Children’s Court Registry;
4. All parties to the matter consent to the Local Court exercising family law jurisdiction;
5. The Local Court considers that the matter is suitable for the pilot.
Please note that the Local Court can decide to remove a matter from the pilot at any time.
How can the FLP help you?
The Family Law Pilot aims to provide a holistic approach for child protection matters. In some matters, if a family law parenting order can be made in favour of a parent or a carer, Territory Families may be able to end their involvement with the family. Below are some examples of when this may occur:
Territory Families only have concerns about the children living with the mother (due to her drinking) but not the father. The parents are separated. Territory Families want a protection order in place as it stops the mother from removing the children from the father’s care. Under the Family Law Pilot, if Territory Families, the mother and the father agree, the Court can make a family law parenting order confirming that the children will continue to live with the father and only spend time with the mother when she is not drinking. Once this order is made, there is no reason to need a protection order.
Territory Families have concerns about the children living with either of their parents. The children have been placed with their grandmother by Territory Families following the making of a protection order. The family agree it is best for the children to keep living with the grandmother. Under the Family Law Pilot, if Territory Families, the parents and the grandmother agree, the Court can make a family law parenting order providing the grandmother with legal responsibility for the children. Once this order is made, Territory Families no longer need to be involved with the family and there is no reason to have an ongoing protection order.
Territory Families have received several reports about children being exposed to fighting between two parents. The parents have separated but they can’t agree on who the children should live with. The parents keep snatching the children from each other and arguing in front of the kids. There have been incidents of violence during these altercations and the police have been involved. Territory Families are considering applying for a protection order to remove the children from both parents if they don’t stop exposing the children to this conflict. The parties all agree to enter into the Family Law Pilot. The Court arranges for the parties (including Territory Families) to attend mediation. At the mediation the parents agree to the times that the children will live with each of them and how they will exchange the children without exposing them to anymore conflict. The parties agree to have the court make family law parenting orders confirming this agreement. Given that the children will no longer be exposed to conflict between the parents, Territory Families won’t need to apply for a protection order.
Need for Consent
Matters can only enter into the Family Law Pilot if the parties to the matter consent to enter into the Pilot and consent to the Local Court exercising family law jurisdiction.
A Consent to enter into the Family Law Pilot form will need to be completed. This form will need to be signed by each party to the proceedings and filed with the Court. The Court will not accept the referral of a matter into the Family Law Pilot if any party opposes the Local Court exercising family law jurisdiction. You can obtain this form and an information pack about the Family Law Pilot by telephoning the court on 8999 1665.
By signing the Consent to enter into the Family Law Pilot form, a party is agreeing to the following:
1. To have their matter referred into the Family Law Pilot;
2. To possibly being subject to the following types of orders:
- that parties attend mediation;
- that one or more of the parties undergo drug screen testing;
- that one or more of the parties participate in counselling, an appropriate course, program or other service;
- that the parties attend interviews with a psychologist who will prepare a family report;
- that a child's interests in the proceedings be independently represented by a lawyer; or
3. To the Northern Territory Local Court making parenting orders under Part VII of the Family Law Act 1975 (Cth);
4. To participate in Mediation as directed by the Court and to make a genuine effort to try to resolve the matters in dispute;
5. To authorise the Family Law Pilot Judicial Registrar to obtain copies of any other current order in which I am a party, including but not limited to, family law orders, domestic violence orders, protection orders and bail conditions; and
6. To authorise the Family Law Pilot Judicial Registrar to contact Territory Families to enquire as to whether they would consent to your matter being referred into the Family Law Pilot (this will require us to give Territory Families your name).
Even if a party consents to a matter entering into the Family Law Pilot, a Judicial Registrar or a Family Law Pilot Judge can transfer the matter out of the Family Law Pilot at any time without your consent.
Family Law Parenting Orders vs Child Protection Orders
Family law parenting orders are made under the Family Law Act. This is a Commonwealth Act that is normally exercised only by the Family Court of Australia or the Federal Circuit Court of Australia. A Family law parenting order can be applied for by a parent, grandparent, or any other person concerned with the care, welfare or development of the child. Parenting orders can provide for matters such as:
1. the person or persons with whom a child is to live;
2. the time a child is to spend with another person or other persons;
3. the allocation of parental responsibility for a child;
4. if 2 or more persons are to share parental responsibility for a child, the types of matters that they need to consult with each other on (such as where a child goes to school or approval of medical procedures); or
5. the communication a child is to have with other people.
Child Protection Orders are made under the Care and Protection of Children Act. This is a Northern Territory law that is exercised only by the Northern Territory Local Court and the Northern Territory Supreme Court during appeals. Only the CEO of Territory Families can apply for a Child Protection Order. The protection order can provide for:
1. who has parental responsibility for a child;
2. who is not to have contact with a child; or
3. Territory Families to supervise the families care of a child.
If a party consents to enter into the Pilot they are giving consent to the Northern Territory Local Court exercising powers under the Family Law Act. Once consent has been given, the party is then are unable to withdraw their consent without the courts permission. Once the Court has consent, the Court can make parenting orders under the Family Law Act.
Mediation and Family Dispute Resolution
Mediation is a process in which an independent third party assists people who are in conflict to try to resolve their dispute. The Mediator can assist the parties by helping them have constructive communication and stay focussed on the issues in dispute. Mediation is designed to allow parties to speak freely in a safe and confidential environment.
Family Dispute Resolution (“FDR”) is a special type of mediation that is specifically designed to assist separated couples to try to reach an agreement about their family law dispute. FDR is now compulsory for almost all separated couples before they are allowed to commence proceedings in the Family Law Courts. If parties make a genuine attempt to try to resolve their issues at FDR but simply cannot agree, the parties will be given a section 60I certificate. This certificate proves they have tried FDR and it gives them the ability to then commence court proceedings. FDR is conducted by Family Dispute Resolution Practitioners. These are mediation practitioners who have obtained an additional accreditation to be able to conduct FDR.
All Family Law Pilot mediations will be conducted by mediators who hold qualifications as Family Dispute Resolution Practitioners.
If you are considering opting into the Family Law Pilot, it is strongly recommended that you obtain independent legal advice before you do so.
Court staff cannot provide legal advice. Below are some places where you may seek legal assistance for family law related matters:
- NT Legal Aid Commission (Phone 1800 019 343)
- North Australia Aboriginal Justice Agency (NAAJA) (Phone 1800 898 251)
- Top End Women’s Legal Service (Phone 1800 234 441)
- Law Society NT - first interview scheme (Phone 8981 5104)
- North Australian Aboriginal Family Legal Service (Phone Darwin 8923 8200 Katherine 8972 3200)
You can find further information about mediation and family law proceedings in the following enclosed brochures:
- Family Court brochure entitled - Marriage Families and Separation
- Family Court brochure entitled - Compulsory Family Dispute Resolution – court procedures and requirements
- Australian Government brochure entitled Family Dispute Resolution