How do I apply for parenting orders?

Applying to the court for parenting orders should be a last resort and only considered after all genuine efforts to resolve the matter have failed.

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What is a parenting order?

When parents cannot agree on the arrangements for a child, then either parent may apply to the Court for a decision about what is best for the child. If parents can agree the court can also make legally binding consent orders. When the court makes any orders about children they are called parenting orders. When a parenting order is made, each person affected by the order must follow it.

Grandparents or any person concerned for the welfare of a child can also make an application for parenting orders. For useful information and resources for grandparents and other family members see Grandparents and others.

When making a parenting order the Court must consider a child best’s interest. For more information, see Children: Overview.

A parenting order may deal with one or more of the following:

  • who a child will live with
  • how much time the child will spend with each parent and with other people, such as grandparents
  • the allocation of parental responsibility
  • how the child will communicate with a parent they do not live with, or other people
  • any other aspect of the care, welfare or development of the child.

For a useful handbook that provides examples and tips to guide parents on deciding what orders are best for their children see the Attorney General’s Department publication Parenting Orders – what you need to know

NOTE: You can apply for parenting and financial orders in the same application. Go to How do I apply for financial orders for the requirements when applying for financial orders.

Seeking legal advice

It is advisable to obtain legal advice before making a decision about what to do or before applying to the courts. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. A lawyer may also be able to help you reach an agreement without going to court.  The Court is unable to provide legal advice to people with family relationship issues.  To do so could seriously compromise the court's ability to impartially determine a case if a person then applies to the court seeking orders.

Where can I obtain free legal advice?

The Family Relationship Advice Line (FRAL) can help you with free legal advice and information about services available to assist anybody with family relationship issues - call 1800 050 321 or +61 7 3423 6878 if you are overseas.  You should advise FRAL that you are seeking legal advice and they will take your details and a lawyer will call you back.  The will advise you of a timeframe on the call back, you should advise if it is urgent.

Alternatively, the Australian government funds a range of legal assistance services that may be able to assist you, including Legal Aid Commissions and individual Community Legal Centres, which offer free and low cost advice.  Information to assist with finding legal services is available at Community Legal Centres

Can the court refer me to a private lawyer?

The court is unable to refer you to a private lawyer. If you are looking for a private lawyer who deals with family law matters, a law society in your state or territory may be able to help. For a list of law societies go to Law Council Law Society

Pre-action procedures in parenting matters

Before starting parenting proceedings each party must make a genuine effort to resolve the dispute and comply with pre-action procedures. There may be serious consequences for non-compliance, including costs orders against a party if they do not comply.  Parties are not required to follow or continue pre-action procedures if it is not safe to do so.  It is important to read the information in the brochure Before you file - pre-action procedures for parenting cases and the flow chart, Pre-Action Procedures: What to do before you file your family law application.

You can also refer to the brochure Parenting after separation prepared by Family Law Pathways in South Australia, but applicable nationally, which provides some general insights regarding parenting after separation.

If you agree on parenting arrangements

If all parties have reached agreement and want to formalise the agreement to make it legally binding you can apply to the Federal Circuit and Family Court of Australia for consent orders. See How do I apply for consent orders for more information.

If you can't agree on parenting arrangements

If there is no agreement and your application needs to be determined by the Court, then one party can start proceedings by filing an Initiating application to ask the court to make orders

For more information about specific parenting issues see Types of parenting matters below.

For information about filing an application see Filing an application with the Court below.

Types of parenting matters

Select the relevant type of parenting matter/s below for more information:

To change an existing court order, you will need to show that there has been a significant change of circumstances that makes a change necessary. See Changing parenting arrangements for more information.

If you agree to the changes, you can apply for consent orders – see above if you agree on arrangements or alternatively you may enter into a parenting plan. For more information go to Parenting plans - Information for parents to consider when making a parenting plan  available on the Family Relationships Online website.

If you do not agree you follow the same process as if you were applying to the Court for the first time.

For information about relocation and travel in family law see Relocation and travel.

Relocation

Moving with a child to another town, state or country is known as relocation. If your child primarily lives with you and you need to relocate, you should first try to talk to the other party.

If you cannot agree about relocating, you can apply to a court for orders to allow you to move. The Court may not grant permission. The Court will consider the best interests and welfare of the child.

If you move without a court order or without the consent of the other party, a court may require you to return with the child until the case has reached an outcome. If there is a court order in place, you will be breaking the order and the other parent can apply to enforce the current order.

Airport watch list orders

The Court has powers, in appropriate circumstances, to make an order restricting a parent or other person from removing a child from Australia by adding them to the Airport Watch List. The Court also has the power to remove a child's name from the airport watch list. Please see Children and international travel after family separation which provides useful information in relation to applying for an order to add or remove a child's name to the watch list. You should also refer the Australian Federal Police Family Law Kit for the exact wording required for a watch list order.

Helpful Hint - The Court has an out-of-hours service for emergencies: that is, there is a risk that a child may be taken out of the country before the next working day. Call the courts on 1300 352 000 out of business hours and you will be referred to this emergency number.

Passport orders and/or order for a child to travel internationally

For more information about travel and passport issues for children please see Relocation and travel and Children and international travel after family separation.

For further information regarding the issue of passports please also see www.passports.gov.au

Helpful Hint - The Court has an out-of-hours service for emergencies: that is, there is a risk that a child may be taken out of the country before the next working day. Call the courts on 1300 352 000 out of business hours and you will be referred to this emergency number.

Hague Convention

If your child is taken from their home country without your permission, or without the authorisation of a court, then the Hague Convention may apply. See Recovery orders for more information.

When a parenting order is made, each person affected by the order must comply with or follow the order. To understand the obligations when a parenting order is made refer to Parenting orders - obligations, consequences and who can help. If you allege that a parenting order has been contravened you should read the fact sheet Compliance with parenting orders.

The law on contravention of orders is complicated. If a person does not obey an order, the affected person should get legal advice.

If an existing parenting order no longer reflects current arrangements for a child or the other party cannot reasonably comply you can ask the court to make an order to vary the existing order. See Applying to change an existing parenting order above.

If the existing parenting order has been breached the parties should try and resolve the dispute by attending dispute resolution. Call the Family Relationships Advice Line (FRAL) on 1800 050 321 for help for you and the other party to work through your disagreement. Remember, except in limited circumstances, you are required to attempt to resolve the matter through family dispute resolution and obtain a certificate before applying to the court.

NOTE: you cannot eFile these applications on the Commonwealth Courts Portal.

If an agreement cannot be reached you can apply to the court for the following:

Application - Contravention

This application is used when you are alleging a breach of a parenting order. Before filing an Application - Contravention you should consider the result that you want to achieve and obtain legal advice. The remedies available from the Court range from the enforcement of the order to the punishment of a person for failure to obey an order. See Compliance and enforcement.

For details on what you need to file see Application - Contravention.

Enforcement

If you do not want the other party punished (e.g. fined or imprisoned) for the breach, but want to see the resumption of the arrangements set out in the order you may be able to file an Application - Enforcement and the other supporting documents required.

A recovery order is defined in section 67Q  of the Family Law Act 1975. If a recovery order is made the Court makes an order authorising the AFP to find, recover and deliver the child to the applicant. See Recovery orders for more information.

Before applying to the Court for a recovery order, you should seek legal advice. There are different processes for applying for a recovery order depending on whether you have a current parenting order or a parenting case pending in the Court.

If there is a current parenting orders application pending in the Court or parenting orders were made in the Federal Circuit Court you will need to file an Application in a proceeding and the other documents required. If there are no parenting orders in place you will need to file an Initiating Application seeking parenting orders at the same time as applying for a recovery order. See Filing an application with the Court below.

In some situations, you may ask the Court to issue other orders (sought in the recovery order application) to help locate the child; for example:

Location order

If you believe that a child may be in Australia but you are unsure where, you can apply to the court for a location order. When a location order is made it requires:

  • a person to provide to the Court any information they have or obtain about the child's location; or
  • the Secretary of a Department or an appropriate authority of a Commonwealth instrumentality to provide information about the child's location that is contained or comes into their records (Commonwealth Information Order).

The person (or authority) must provide the information sought by the order as soon as practicable after obtaining the information.

This type of order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child's location that is contained in or comes into the records of the department.

Publication order

A publication order allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.

Further information about recovery orders can also be found in the Australian Federal Police Family Law Kit .

In order to register a change of child's name, you should try and obtain consent from the other parent. If you are unable to obtain consent from the other parent you can file an application with the Court. However, an order from the Court alone may not be sufficient to achieve a change in the registration of a child's name.

Before filing an application with the Court you should seek legal advice. The legal requirements to register a change of a child's name will vary from state to state. To find out what the legal requirements are, contact the Registry of Births, Deaths and Marriages in your state or territory.

Adoption of children is dealt with under state legislation in the Supreme Court or Children's Court. If the adoption relates to a step-child, then leave of the Federal Circuit and Family Court is required. In proceedings for leave the Court must consider whether granting leave would be in the child's best interests.

In this type of application you should obtain legal advice about who the necessary parties are and what to include in supporting affidavits to make sure relationship issues are addressed. You must also file an affidavit supporting the application.

An application for parentage testing is usually sought to determine the parentage of a child in relation to parenting orders or seeking or refuting an application for child support.

In relation to parenting orders

Under s.69VA  of the Family Law Act 1975, the Court may issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

In relation to child support

Under s.107  of the Child Support (Assessment) Act 1989 the court can make a declaration that a person should not be assessed in respect of the costs of a child because they are not a parent of the child. An application for a declaration of paternity in this situation must be filed within 56 days of the assessment from the Child Support Agency or the applicant can ask for leave to extend this time limit.

Under s.106A  of the Child Support (Assessment) Act 1989 the court can make a declaration that a person should be assessed in respect of the costs of the child - for example if you do not have proof of paternity the court can make the declaration that you are entitled to child support. Under s.69W  of the Family Law Act 1975 to determine the parentage of child in relation to parenting orders, the court may make an order requiring a parentage testing procedure to be carried out.

If your application is in relation to paying or not paying child support you are not required to file a dispute resolution certificate (60I certificate). However, it is recommended that you file an Affidavit - Non-Filing of Family Dispute Resolution Certificate, to claim an exemption from counselling as a pre-action requirement.

For more information on child support applications refer to Child support applications.

NOTE: If you are seeking child support orders only and no other type of financial or parenting orders, there is no fee payable and you can eFile this particular type of application by selecting the unguided Initiating application process.

If the court makes an order for parentage testing, the testing must be undertaken through a DNA laboratory  that has been accredited by the Attorney General's Department.

Filing an application with the Court

If all parties have reached agreement and want to formalise the agreement to make it legally binding they can apply for consent orders. See How do I apply for consent orders for more information.

You should electronically file (eFiling) applications on the Commonwealth Courts Portal. This allows you, within the Court’s secure website, to access your court file, the ability to eFile and access court orders 24/7.

If you are unable to eFile the application click on Unable to eFile below.

To register for the portal go to www.comcourts.gov.au

There are two options when eFiling an application:

  • Guided – uses the online interactive Initiating application form together with uploading supporting documents
     
  • Unguided – complete an online form and upload the application and supporting documents.

The following are the forms required when eFiling an application seeking parenting orders:

For assistance with eFiling go to How do I eFile?  

Follow the instructions on the Initiating application kit to help you file your application. The following are the forms required when filing an application seeking parenting orders:

Once you have completed and signed the application you can file the original application and documents plus one copy for each party together with the filing fee at a Court registry.

You will be required to pay a filing fee unless you are eligible for an exemption. For fees information go to Fees. Depending on what type of orders you seek will depend on the amount of fees. Fees are payable at the time of filing. 

If you electronically file the application you will be required to pay the filing fee by credit/debit card (visa/mastercard) when you complete the application.

If you file the application at a Court registry you will need to pay the filing fee at the same time. Go to Making payments to the Court for more information.

NOTE: If you DO NOT have a credit/debit card you can buy a pre-paid debit card from various retail outlets for a nominal fee.

To find out if you are eligible for an exemption of fees refer to the Guidelines for fee exemption

If you are eligible for an exemption you will be required to provide documentary evidence e.g. health care card when you file the application.  

  • If you electronically file you will be asked to confirm you are eligible in Part 1 of the application and to upload the documentary evidence at Part 2.
  • If you are unable to electronically file you must file the Application for exemption from Fees – general together with the documentary evidence e.g. both sides of your health care card with the Initiating application.

If you are not eligible, but paying the fee will cause you financial hardship you can apply for an exemption due to financial hardship.

What will happen after I have filed the application?

You are now required to serve the documents on any other party.

If you eFiled the Initiating application you will be able to select a court date and print the documents for service. To print the sealed application and documents go to your file in the Commonwealth Courts Portal and select the heading Documents Filed then click on the PDF icon next to the document to download and print.

If you have filed your application at a registry the Court will allocate a court date and return the documents to you.

You are then required to serve the filed documents on the other parties. See How do I serve family law documents for more information.

Urgent applications

An urgent order can be sought in parenting proceedings. Applications for contravention cannot be heard urgently. 

Urgent applications will generally seek an order for short service or that the matter be heard ex-parte and an urgent hearing. 

If you eFile you must choose the unguided option to file an urgent application.

Urgent orders in parenting applications are generally sought:

  • If a child is at immediate risk of physical or psychological harm.
  • Child abduction
  • Relocation
  • Recovery

An order may be sought to seek an urgent listing as an interlocutory order in an Initiating application and must be accompanied by: 

  • An affidavit stating the facts relied on in support of the urgent application
  • A cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application. If you eFile, you can upload the letter at Step 2 of the application.

Any application made by a party for an urgent listing will be determined by a registrar on the papers. In making its determination the Court will consider:

  • Is there a good reason for the matter not proceeding through the normal court process.
  • Whether a judge is available to hear the application on an urgent basis.