This brochure provides information for people considering applying to the Federal Circuit and Family Court of Australia (the Court) for parenting orders. In particular, it provides information about the pre-action procedures, which are steps that must be taken before starting a parenting case.
The aim of the pre-action procedures is to allow parties to explore possibilities for resolution of their dispute. Where a dispute cannot be resolved, the procedures require that parties narrow the issues that need a court decision.
Similar pre-action procedures apply to financial cases. For more information, see the brochure Before you file – pre-action procedure for financial cases.
What is required?
The Family Law Act 1975 (the Act) requires a person to make an attempt to resolve disputes about parenting matters using family dispute resolution (FDR) services before applying to a court for a parenting order.
For more information, see the Court’s brochure Compulsory pre-filing Family Dispute Resolution – court procedures and requirements. The pre-filing requirements are designed to assist you, the other parties to your dispute and the Court to resolve your dispute as quickly and as peaceful as possible while considering the best interests of your child or children.
Further information about these requirements can also be found at www.familyrelationships.gov.au or by telephoning the Family Relationships Advice line on 1800 050 321.
Before you file an application
All prospective parties making an application for parenting orders must obtain a Family Dispute Resolution Certificate before filing an application, unless an exemption applies. The Court will reject your application for filing if you do not obtain a Family Dispute Resolution Certificate, and you are not granted an exemption (see below).
What applications are exempt?
A party may seek an exemption from providing a certificate in the following circumstances:
- if your matter is urgent
- if the Court is satisfied that there are reasonable grounds to believe that:
- there has been child abuse or family violence by a party
- there is a risk of family violence by a party, or
- there is a risk of child abuse if there were to be a delay in applying to the Court
- where a party is unable to participate effectively in FDR (for example, due to an incapacity to do so or physical remoteness from a FDR provider)
- if your application relates to an alleged contravention of an existing order. The order must have been made within the last 12 months. You must demonstrate that there are reasonable grounds to believe that the person who you allege contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.
To apply for an exemption for any of the reasons above, you must either:
- prepare and file an Affidavit – Non-Filing of Family Dispute Resolution Certificate, or
- if you are filing an Initiating Application (Family Law) seeking interlocutory or interim orders, you can provide reasons in the affidavit filed in support of your Initiating Application.
Family violence or child abuse exemption
If you seek to apply for an exemption from filing a Family Dispute Resolution Certificate relating to family violence or child abuse, you may need to obtain information from a family counsellor or FDR provider about the services and options (including alternatives to court action) available to you in circumstances of abuse or violence. You can get this information by calling the Family Relationship Advice Line on 1800 050 321 or by talking to a family counsellor or FDR provider.
You must provide written acknowledgment that you have received the information from a family counsellor or FDR provider. You can do this by completing the form Acknowledgment – Information from a Family Counsellor or Family Dispute Resolution Practitioner. If you are filing an Initiating Application (Family Law) seeking interim orders, you may confirm that you have obtained this information in the affidavit filed in support of your Initiating Application instead.
This does not mean that you must attend family dispute resolution or attempt to do so. All that you are required to do is obtain information about services and options that are available.
Obtaining the information is not required where, in addition to the grounds listed earlier, the Court is satisfied there are reasonable grounds to believe that:
- there would be a risk of abuse of a child if there were a delay in applying for the order, or
- there is a risk of family violence by one of the parties to the proceedings.
General information and responsibilities
Your obligations as a prospective party to a case
The best interest of the child is the paramount consideration when resolving or determining parenting disputes. At all stages before and during any parenting case, you must consider the following:
- the need to promote the safety of the child and each person who has care of the child (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm)
- any views expressed by the child
- the developmental, psychological, emotional and cultural needs of the child, and the capacity of each person who has or is proposed to have parental responsibility for the child to provide for all of those needs
- the benefit to the child of having a relationship with both parents and other people who are significant to the child, and the benefits the child gains from the parents cooperating with one another
- the potential harm to a child of involving them in a dispute
- the importance of identifying issues early and looking at options for settlement
- the need to avoid long, unnecessary and hostile exchanges
- the impact of correspondence on the reader, particularly on the other party or parties
- the need to seek only those orders that are reasonably achievable on the evidence and that are consistent with current law
- the duty to make full and frank disclosure, and
- if the child is an Aboriginal or Torres Strait Islander child, you must also keep in mind the child’s right to enjoy their Aboriginal and Torres Strait Islander culture and the impact any parenting order may have on that right.
The pre-action procedure - step-by-step
STEP 1: Comply with the requirements of Compulsory Family Dispute Resolution
This process is set out in the Court’s Compulsory Family Dispute Resolution – court procedures and requirements brochure.
For more information, including information about the exceptions to participate in Compulsory Family Dispute Resolution, go to www.familyrelationships.gov.au or telephone 1800 050 321.
STEP 2: Enter into a parenting plan or apply for consent orders
For more information on parenting plans, go to www.familyrelationships.gov.au. For information about applying for consent orders, see ‘How do I apply for consent orders’.
If the FDR process (see Step 1) was unsuccessful in resolving the dispute, other options exist outside of the Court for resolving your dispute or narrowing the issues. The other options include family counselling, negotiation, conciliation and arbitration.
STEP 3: If your case is not resolved, give written notice of issues and future intentions
A person considering applying to the Court must give the other party or parties written notice of the intention to start a court proceeding. The written notice is called a ’notice of intention’. The notice of intention must set out:
- the issues in dispute
- the orders to be sought if a case is started
- a genuine offer to resolve the issues, and
- a nominated time (at least 14 days after the date of the letter) within which the other person must reply.
STEP 4: Reply to the notice of intention
If you receive a notice of intention, you must reply in writing stating whether the offer is accepted. You must do this within the time nominated in the notice of intention.
If an agreement is reached, refer back to Step 2.
If you do not accept the offer, you must set out in a letter:
- the issues in dispute
- the orders you will seek if a case is started
- a genuine counter offer to resolve the issues, and
- a nominated time (at least 14 days after the date of the letter) within which the initiating party must reply.
If you do not respond, the initiating party’s obligation to follow the pre-action procedures ends.
STEP 5: If no agreement is reached: taking court action
Where an agreement is not reached after reasonable attempts to resolve it by correspondence, other appropriate action may be taken to resolve the dispute, including filing an application in the Court.
Compliance
The Court expects parties to take a sensible and responsible approach to pre-action procedures.
When a party starts a case in the Court, the Court will consider whether the pre-action procedures have been complied with and, if not, what the consequences should be.
Where there is unreasonable non-compliance, the Court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The Court may also take compliance or non-compliance into account when making orders about how your case will progress through the Court.
Examples of non-compliance with pre-action procedures include failing to:
- send a written notice of a proposed application to the other party
- provide sufficient information or documents to the other party
- follow a procedure as required by the pre-action procedures
- respond appropriately within the nominated time to the written notice of proposed application, and
- respond appropriately within a reasonable time to any reasonable request for information, documents or other requirements of this procedure.
Legal advice
You should seek 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 situation. A lawyer can also help you reach an agreement with the other party without going to court.
You can seek legal advice from a:
- legal aid office
- community legal centre, or
- private law firm.
Court staff can help you with questions about court forms and the Court process, but cannot give you legal advice.
Personal safety
If you have any concerns about your safety while attending court, please call 1300 352 000 before your court appointment or hearing. More detail may be found in the fact sheet Do you have fears for your safety when attending court?
More information
For more information, including access to the Act, the Family Law Rules, the Court’s Practice Directions, and any of the forms or publications listed in this brochure:
- go to www.fcfcoa.gov.au
- Live Chat on the website
- call 1300 352 000, or
- visit a family law registry near you.
This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Federal Circuit and Family Court of Australia cannot provide legal advice.
DISTRIBUTED IN ACCORDANCE WITH RULE 4.01 AND SCHEDULE 1 OF THE FAMILY LAW RULES.
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