Who, What & Where – Family Law Dispute Roadmap

STEP 6: THE TRIAL

A trial is conduced by a judge.

6.1   What Is The Role Of The Judge?

The judge is responsible for managing and directing the court process. The judge will identify the issues at hand, listen to the evidence of both parties and relevant witnesses, apply the law and come to a decision by imposing an order.

6.2   What Does A Trial Involve?

A trial will generally consist of the first day of trial, one or more continuations of the trial, and the final day of the trial.The judge will make orders on the final day of the trial. ¹

In child-related proceedings, the Family Court uses a less adversarial approach.² A less adversarial trial is more closely directed by a judge, and focuses on the interests of the children. It is often a more flexible, less formal, less costly and less time consuming.³ During the court process, the judge may request for a family report (see 6.4) or may appoint an Independent Children’s Lawyer (see 6.3) in parenting cases. Financial issues may be considered by a judge as part of a less adversarial trial if both parties agree and the judge permits this. 

6.3   Independent Children’s Lawyer (ICL)

What Is An ICL?

An ICL represents and promotes your child’s best interests. The ICL is truly independent of the Court and parties to the proceedings. As such, the ICL does not take instructions from the child or the parties involved.⁴

How Is An ICL Appointed?

The Court can appoint an ICL when the court considers it appropriate. Parties can also request for an ICL to be appointed.⁵

How Will An ICL Represent A Child’s Best Interests?⁶

The best interests of the child will generally be served by the involving the child in the decision making process. The ICL will establish a professional relationship with the child and seek to provide the child with the opportunity to express his or her views freely.In doing so, the ICL will have take into account the extent the child wishes to be involved and the extent it is appropriate to allow so having regard to the child’s age, developmental level, cognitive abilities, emotional state and views. The ICL may work with a Family Consultant or external expert and collect information about your child by asking for a family report or reports from those who have regular contact with your child (e.g. teachers).The ICL is required inform the Court of the child’s views. The ICL must, if satisfied that a particular course of action is in the best interests of the child, suggest that course of action to the Court.

Is The Judge Obliged To Follow The ICL Submission?

No, but the judge will consider it in making his decision, as with all other relevant evidence.

Can An ICL Be Removed?

Any party to the case can apply to the Court to have an ICL removed.  Please note that the Court will only do this in very serious circumstances.⁷

6.4   Family Report⁸

Who Writes The Family Report?

The court usually directs a family consultant to write a family report.

How Is A Family Report Prepared?    

The family consultant who is directed to give the court a report on a matter must ascertain the views of the child in relation to that matter if appropriate; and include the views of the child on that matter in the report.⁹ The family consultant may include in the report any other matters that relate to the care, welfare or development of the child. In collecting information, the family consultant may interview the parties to the case. ¹⁰

What is a family report and how is it used?

It will be used as evidence in the trial.¹¹

Is a judge obliged to follow a family report?

No, the report is only one source of evidence that the Court considers in making its decision. The Court is not bound by the recommendations in the Report.¹²