The Family Advocate: what the office does and how to ask for an enquiry

At a glance

Who they are

A lawyer appointed by the Minister

Qualified to be an advocate, with experience of family matters (section 2).

Who they act for

The child

The enquiry is about the welfare of each minor or dependent child (section 4).

Who can ask

Either parent, or the court

When asked, the Family Advocate must hold the enquiry (section 4(1)).

What comes out

A report and a recommendation

The court decides. It must consider the report before granting a divorce (Divorce Act, section 6).

The Family Advocate does not act for you or for the other parent, and does not decide the case.

When the office gets involved

• A divorce with children

  Section 4(1)(a)

  Once a divorce action has been started, a parent or the court can ask for an enquiry.

• Changing an order about a child

  Section 4(1)(b)

  When someone applies to change, set aside or suspend an order about custody, guardianship or access made under the Divorce Act.

• On the Family Advocate's own initiative

  Section 4(2)

  If it is in the child's interest, the Family Advocate can ask the court for permission to hold an enquiry without being asked.

• Maintenance and protection order cases

  Regulation 4A

  A court can order a Family Advocate investigation where it is in the child's best interest and the matter is complex enough to need it.

Parents who were never married

The Act was written for divorce. A court has declared section 4 invalid to the extent that it shuts out parents who never married, and married parents who are not divorcing. The order gave Parliament time to fix the Act, and for that period the Act is read as if a parent in those positions can also ask for an enquiry, in an application about custody, guardianship or access. A Bill (B20-2025) to rewrite the section is before Parliament and is not yet law. Ask the Family Advocate's office how it is handling such requests today.

Step by step: an enquiry in a divorce

1. The form about the children goes in with the summons

   Who:

   The spouse who starts the divorce

   If the divorce asks for anything about a child, a sworn form setting out the arrangements for the children is filed with the summons and delivered to the other spouse. It is called Annexure A (regulation 2).

   It covers where the children live, their schooling, any learning difficulty or disability, who supports them, the contact arrangements, and each parent's work and income.

2. The other parent can reply

   Who:

   The other spouse

   On a sworn form of their own, within the time the court rules allow (regulation 2).

3. The papers go to the Family Advocate

   Who:

   The registrar of the court

   As soon as practicable after they are filed (regulation 2).

4. Ask for an enquiry, if you want one

   Who:

   Either parent

   You send a sworn request, Annexure B, to the Family Advocate, give a copy to every other party and file one with the registrar. The form asks for your reasons (regulation 3).

   The regulations set no deadline for asking.

5. The enquiry

   Who:

   The Family Advocate, often with a Family Counsellor

   How long:

   Started as soon as practicable

   The Family Advocate chooses how to run it, and can require statements, reports and documents from anyone (regulation 5). Family Counsellors are appointed to assist (section 3).

6. The report

   Who:

   The Family Advocate

   How long:

   Within 15 days of finishing the enquiry

   The report and recommendation go to the registrar, and copies go to both of you (regulation 5).

7. At court

   Who:

   The Family Advocate

   The Family Advocate may appear at the hearing in the child's interest, and must appear if the court asks. They can lead evidence and cross-examine witnesses (section 4(3)).

What else the office does

• Helps with a parenting plan

  Children's Act, section 33(5)

  A family advocate is one of the professionals whose help parents must seek when preparing a plan after difficulties.

• Registers a parenting plan

  Children's Act, section 34

  A plan can be registered with a family advocate instead of being made a court order.

• Registers a rights agreement

  Children's Act, section 22

  An agreement giving a father, or someone else, parental responsibilities and rights takes effect only once it is registered with the family advocate or made a court order.

• Mediates a dispute about an unmarried father's rights

  Children's Act, section 21(3)

  A family advocate is one of the people such a dispute must be referred to.

Mediation is not safe if there has been abuse, threats or fear. If that is your situation, start with crisis lines and protection orders.

What goes wrong

• Expecting the Family Advocate to be on your side

  The enquiry is about the child's welfare, and the Family Advocate appears in the child's interest (section 4).

  Worth checking: who is advising you, as opposed to the child.

• A thin or careless form about the children

  Annexure A is sworn, it goes to the Family Advocate, and it is the first account of the children's lives that the office sees (regulation 2).

  Worth checking: every answer on the form before it is sworn.

• Settling and telling no one

  If the matter settles after an enquiry has been asked for, the full particulars of the settlement about the children must go to the Family Advocate before any further step is taken (regulation 3).

  Worth checking: that the Family Advocate has been given the terms about the children.

• Assuming the report is the decision

  The report is a recommendation. The court has to consider it, and the court decides (Divorce Act, section 6).

  Worth checking: what the report recommends, and what you would say to the court about it.

• Assuming the office is only for divorce

  A court has opened the office to parents who never married, as described above.

  Worth checking: whether your application is about custody, guardianship or access.

What to gather