Steps to Getting a Parenting Order
Reaching agreement through dispute resolution – what next What is a parenting plan? What are consent orders?
What orders can you apply for? Who can apply for a parenting order? When can you apply for a parenting order? How do you apply for a parenting order? Is there a filing fee for parenting order applications? What happens when you apply for a parenting order?
When a court is making a parenting order, the Family Law Act requires it to regard the best interests of the child as the most important consideration. The Family Law Act makes it clear that each parent has parental responsibility for each of their children until aged 18. This is not affected by such things as separation or remarriage. Parents must also use this principle when making parenting plans.
Courts make orders about parental responsibilities only if the parents cannot agree about the arrangements for their children.
Courts can also approve and make consent orders to reflect an agreement reached between the parties at any time during the court process. Each of these types of orders are known as parenting orders.
Follow the website link to Family Relationships Online for a copy of the above fact sheets or call the Family Relationships Advice Line on 1800 050 321.
The Family Law Act
The Act makes clear that:
See Section 61DA of the Act for the detail.
Two tiers of consideration
In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations - primary considerations and additional considerations:
A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:
If the child’s parents have separated, a court must consider events and circumstances since the separation.
Fact Sheets from the Attorney-General’s Department include information on new concepts in family law:
See also Section 64B on the law about parenting orders made by a court, and Section 65DAA which is about how a court is to consider a child spending equal time or substantial and significant time with each parent in certain circumstances
Options to resolve disputes
Many people successfully work out arrangements for children without going to court.Before you apply to a court you must make a genuine effor to resolve the matter by family dispute resolution.
A number of options are available and, in the case of disagreements over children, changes to the Family Law Act 1975 in 2006 phase in requirements for parties to attend family dispute resolution before they apply for parenting orders.
Dispute resolution in parenting disputes
If your application to the court is for a parenting order, then you must provide a certificate with your application to the Court. This requirement applies even if you have preexisting orders in relation to the child that is the subject of the current application.
A court will not hear an application for a parenting order unless a certificate from an accredited family dispute resolution practitioner is filed with the application.
In certain circumstances the court may grant you an exemption from the requirement to file a certificate.
For more information on compulsory family dispute resolution call the Family Relationship Advice Line on 1800 050 321 or go to Family Relationships online
If you agree on arrangements
You do not have to go to court about the arrangements for your children after separation. If you and your former partner agree on the future arrangements, you can:
If you want more information about the services available to help parents trying to reach agreement, you can read more about options to resolve disputes by going to the Family Law Principles section of the Family Law website.
You should seek legal advice when considering which approach is best for you.
What is a parenting plan?
A parenting plan is a written agreement that sets out parenting arrangements for children. Because it is worked out and agreed jointly, you and your former partner do not need to go to court.
Unless a court orders otherwise, you and your former partner can agree to change a parenting order by entering into a parenting plan.
A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court. For more information on how the Courts are required to respond on parenting issues, view the Attorney-General's fact sheet 'Parenting plans' visit Family Relationships Online .
You should seek legal advice when considering the alternative approaches.
What are consent orders?
A consent order is a written agreement that is approved by a court. A consent order can cover parenting arrangements for children ( a 'parenting order') as well as financial arrangements such as property and maintenance
Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing. It is a good idea to get legal advice about any proposed consent orders.
You and your former partner can apply for consent orders to be made without going to court. For more information or to get a Consent Orders Kit go to the ‘Forms’ section of the family law website, call 1300 352 000 or visit your nearest family law registry.
Using the Family Court's Consent Orders kit, you ask the Court to make 'consent orders' in the terms of your agreement. Your agreement may include information about the following:
Once you have completed the form in the consent orders kit, file it with the family law registry nearest you by post or in person. There is no need for you to attend court. However, the Court must be satisfied that the orders you ask for are in the best interests of the child. You can read more about the best interests of a child by going to the Family Law Principles section of the family law website.
There is a filing fee to apply for Consent Orders. For more information on fees, please see the Fees Brochure on the Family Law Courts website.
For more information or to get a Consent Orders Kit go to 'Forms' section of the Family Laws website, call 1300 352 000 or visit your nearest family law registry.
You cannot directly apply for consent orders in the Federal Circuit Court. However, if you already have a case in that Court and you reach agreement, orders can be made.
If you can’t agree on arrangements
Parental responsibility and parenting orders
The Family Law Act makes it clear that each parent has parental responsibility for each of their children until aged 18. Parental responsibility is not affected by changes in the parents' relationship; for example, if you separate or remarry.
Courts make orders about parental responsibilities only if the parents cannot agree about the arrangements for their children. Courts can also approve and make consent orders to reflect an agreement reached between parties at any time during the court process. Each of these types of orders are known as parenting orders.
Before you apply to a Court
You must make a genuine effort to resolve the matter by family dispute resolution.
What are orders?
Court orders are the way the decisions or judgments of judicial officers are described. They can include:
In general terms, orders in family law can include a decree, a decision, a declaration and a judgment.
When an order is made, each person bound by the order must follow it.
What orders can you apply for?
Section 64B of the Family Law Act sets out that a parenting order may deal with one or more of the following:
You should read Section 64B for the full detail, including the meaning of ‘person’ or ‘persons’ – it may mean either parent and other people, such as a grandparent or other relative of the child.
Who can apply for a parenting order?
A parenting order may be applied for by:
When can you apply for a parenting order?
You may apply for a parenting order only after you have attempted to resolve the matter with the other parent or parents, either on your own or with assistance. See the information earlier on this page under the heading 'What you must do before you apply to the Court?' about the requirements for parties to use dispute resolution services in disputes about children.
If you are unable to resolve the matter (or an exception applies to you), you can seek parenting orders from a court.
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement with the other party without having to go to court.
How do you apply for a parenting order?
You can apply to the Court most appropriate for your case.
The Family Law Courts comprise the Federal Circuit Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include, for example if the children’s issues in your case involve a child welfare agency and/or allegations of serious sexual abuse (Magellan cases), severe family violence or mental health issues, international child abduction under the Hague Convention or special medical procedures.
All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly.
You may prefer to seek legal advice before choosing the court in which to file your application.
The forms you must use and the processes you must follow depend on which Court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the Forms section of the family law website, call 1300 352 000 or visit a family law registry near you.
If the matter is urgent (for example if you seek a recovery order), you may need to seek an urgent interim hearing.
If there are existing orders, you should read the related information as there are extra things you may need to do. Follow the above link 'Applying to change an existing order'.
For a copy of the Attorney-General's fact sheet 'Parenting plans' visit Family Relationships Online located under website links.
Is there a filing fee for parenting order applications?
Yes. Information on the filing fees is available under the Fees section of the family law website.
What happens when you apply for a parenting order?
When you apply to the Family Law Courts for parenting orders, you will be advised about the events that you will need to attend before your application is determined by a judge or federal magistrate. The case management process will be different in the Family Court and the Federal Magistrates Court.