Children: We cannot agree

If you and another relevant person (usually the other parent of your child) cannot agree about the arrangements for your child (or children), there are other options to help you resolve your dispute before you come to court. For more information see Separate smarter.

If you still can’t agree after attempting other dispute resolution or mediation, you can apply to the Court for parenting orders.

What is a parenting order?

Parenting orders are orders made by a court about a child or children, in accordance with Part VII of the Family Law Act 1975. A parenting order may deal with one or more of the following:

• who the child will live with
• how much time the child will spend with each parent, and/or 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
• relocation of the child’s residence (where the child lives)
• whether, and in what circumstances, the child may travel, and
• any aspect of the care, welfare or development of the child.

There are three main types of orders:

1. Final orders – bring a matter to a close.
2. Interlocutory orders – usually made in urgent cases and last until other orders or final orders are made. Generally, you cannot file an application for interlocutory orders unless you have filed an application for final orders.
3. Consent orders – orders that you and the other party agree on. You and the other party can apply for consent orders to be made without going to court. You and the other party can also ask the Court to make consent orders at any time if your matter is in the Court system. Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing.

For more information about parenting orders, see the Attorney-General’s publication, Parenting orders – what you need to know. This is a practical handbook which aims to help separated parents agree on arrangements for their children, and support them to develop workable parenting orders. It has been designed to assist parents to understand the key legal principles that need to be considered when developing parenting orders.

Before you apply – pre-action procedures

There are procedures you must follow before you commence action in the Court. For more information, including a step-by-step guide, see the publication Before you file – pre-action procedures for parenting cases.

Compulsory Family Dispute Resolution counselling

Before you apply to the Court for a parenting order, if it is safe to do so, you usually have to participate in Family dispute resolution (FDR) counselling – unless an exemption applies.

Except in limited circumstances, the Family Law Act 1975 requires you to obtain a certificate from a registered FDR practitioner before you file an application for an order in relation to a child under Part VII of the Family Law Act 1975. Part VII covers applications for several different types of orders relating to children. The most common are applications for parenting orders; that is, an application asking a court to make orders about the parenting arrangements for a child.

Exemption from compulsory Family Dispute Resolution counselling

Under section 60I(9) of the Family Law Act 1975, you can 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 and/or family violence by a party, and/or
  • there is a risk of family violence by a party, and/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 that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly 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 seeking interlocutory orders, you can include information about the exemption in the same Affidavit that you must file with that application.

How to apply

If you have not been able to reach an agreement after dispute resolution and you believe that applying for parenting orders is the only way to resolve the dispute, you can file an application with the Court.

Before starting an application, see the Family Law Practice Direction – Parenting proceedings, which sets out the procedural requirements and steps in proceedings about parenting matters.

New proceedings

If you are starting new court proceedings, you need to decide whether to ask the Court to make only final orders, or final and interlocutory orders.

For information about filing requirements and a step-by-step guide to applying for parenting orders see How do I apply for parenting orders?

To start court proceedings, you must pay the relevant fee and file:

1. an Initiating application setting out the orders you are asking the Court to make
2. a certificate from a Family Dispute Resolution practitioner, unless an exemption applies (see Before you apply)
3. a Notice of child abuse, family violence or risk
4. a Genuine steps certificate
5. a Parenting questionnaire, unless you file an affidavit, and
6. if you are asking the Court to make interlocutory orders, an Affidavit – Family law and child support that sets out the facts in support of your application for interlocutory orders, and addresses the best interests of your child.

If you start proceedings, you are known as the applicant and the other party is known as the respondent.

TIP: If you also need to make arrangements for finances and property, you can apply for parenting orders and financial orders together in the same application. See Financial – We cannot agree for more information.

When there are already proceedings about financial/property matters

If you are already a party to proceedings about financial/property matters and no one has applied for parenting orders, you can add an application for parenting orders to the existing proceedings.

If you are the applicant in the existing proceedings, you can apply for parenting orders by amending your Initiating Application to seek parenting orders. The requirements for amending a document are set out in Part 2.8 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. A further filing fee will apply.

You must file all of the documents which are required to be filed when starting new proceedings for parenting orders (above), except the Initiating application.

If you are the respondent in the existing proceedings, you can seek parenting orders in your Response to initiating application, even if the applicant only applied for financial/property orders.

In addition to the documents that you must file when responding to an application for financial/property orders, you must file all of the documents which are required to be filed when starting new proceedings for parenting orders (above), except the Initiating application.

If you have already filed a Response, you can apply for parenting orders by amending your Response to seek parenting orders. The requirements for amending a document are set out in Part 2.8 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. A further filing fee will apply.

TIP: While you can add an application for parenting orders to an existing financial proceeding, you cannot add an application for parenting orders (or financial orders) to divorce proceedings. Divorce is a separate process.

My matter is urgent

See My application is urgent.

What do I need to pay?

Fees apply when filing an Initiating application or Response to initiating application. The fees vary, depending on the types of orders you are asking the Court to make. Other fees may also apply during the course of your proceedings. For the current fees, see Fees.

In some cases, for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee or fee exemption. For more information see the Guidelines for fee exemption, reduction and refund.

The Court does not set the fees payable. Court fees are set by Federal Government Regulations.

Filing with the Court

Applications to the Court should be eFiled online through the Commonwealth Courts Portal. For more information about filing requirements and a step-by-step guide to applying for parenting orders see How do I apply for parenting orders?

Service

After you have filed your documents, you need to serve them on the other party.

For information on what you need to do to serve your documents, see the Service kit and the step-by-step guide How do I serve family law documents?.

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.

In general, practice directions are issued to:

• complement particular legislative provisions or rules of court
• set out more detailed procedures for particular types of proceedings, and
• notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

• Family Law Practice Direction – Parenting proceedings (FAM-PARENTING) 
• Family Law Practice Direction – Medical procedure proceedings (FAM-MEDICAL) 
• Family Law Practice Direction – Passport proceedings (FAM-PASSPORT) 
• Family Law Practice Direction – Surrogacy proceedings (FAM-SURROGACY) 

***Disclaimer – The above information was taken from the Federal Circuit & Family Court of Australia website as accurate in October 2023. If any changes are made by the court from that date they may not be reflected in this post