6 Steps to Parenting Orders in Australia Family Court
Australian family courts urge divorcing or separating parents to agree on a parenting plan outside of court.
If you can't do that, follow the steps below to get parenting orders from the Federal Circuit and Family Court of Australia (FCFCOA). Parents in Western Australia should follow the Family Court of Western Australia steps instead.
Custody X Change helps you create a parenting plan so you can avoid court.
Your process may vary slightly. For instance, you could have extra hearings if your judicial officer needs more information or if either parent applies for more orders during the case.
You can end the litigation process at any point if you reach an agreement with the other parent and have the court approve it as a consent order. Do this as soon as possible to cut down on conflict and legal expenses.
Note that the FCFCOA operated as two separate courts until recently. Adjustments resulting from the merger are ongoing.
Step 1: Preparation
You must do a few things before you open a parenting case in the FCFCOA.
First, you must try to agree with the other parent through an alternative dispute resolution method (or receive an exemption due to urgency, abuse, etc.). Use a registered family dispute resolution practitioner, who can sign a certificate proving your attempt.
If afterward you still need the court to decide a dispute, notify the other parent in writing that you plan to open a case. The notice must include a parenting plan that the other parent could approve to avoid court.
You also have to disclose all relevant information to the other parent before and during your case.
Although it's not required, you should seek legal advice. If you can't afford a lawyer, you may qualify for free or low-rate legal assistance. The court also has a duty lawyer who provides limited assistance to parents representing themselves in a case.
Step 2: Starting a case
If you are applying for a divorce, that case will be handled separately from your parenting case. If you are dividing property, that case will be handled with your parenting one.
Beyond final orders, most parents apply for interim orders (also called interlocutory orders). An interim order is issued relatively quickly and is eventually replaced by a final order (or a consent order). It tells parents how to proceed in the year or more their case may last.
You can also apply for urgent interim orders. Parents usually do this when their co-parent is withholding the child or poses an immediate risk to the child. The court decides on these interim orders as quickly as possible — typically within a few days.
All FCFCOA parenting cases start in Division 2. If yours involves unusual complexity or an extreme risk of harm, the court will transfer it to Division 1. Transferring gets you a specialised judge but doesn't significantly change the steps of your case.
Once you apply, have the other parent served — in other words, have an adult who is not involved in the case hand court paperwork to your co-parent. You may choose to hire a professional server.
The court may let you have the other parent served after your first court event if letting them know about the case sooner could endanger you or your child.
When you're served with paperwork starting a case, you are the respondent.
If you disagree with any of the orders the other parent requested, or if you want to ask the court for different orders, file response documents with the court, including a Response to Initiating Application. You must also pay the court a fee of several hundred dollars.
If you agree with all the orders the other parent asked for, file a Submitting Notice instead.
Either way, have the paperwork served on the other parent.
Step 3: First court event
At the first court event (also known as the duty list), parents speak to a judicial registrar briefly so the registrar can decide what happens next.
Registrars are like judges with fewer powers; they manage cases and make temporary decisions in order to let judges focus on final rulings.
Your first court event happens one to two months into your case unless it's accelerated because you applied for urgent orders.
If your event happens in person, expect other people waiting for their own to be present. However, like many hearings nowadays, the event often takes place via phone or video conference.
Many outcomes are possible — the registrar may order a report (details below), you may have to take a parenting course, etc.
Another action the registrar might take is appointing an independent children's lawyer (ICL). This usually only happens in cases with complex issues like abuse. An ICL represents a child's best interests by doing research for the court and participating in proceedings alongside parents' lawyers or unrepresented parents.
Some cases: Interim hearing
An interim hearing is for a judicial officer (most often a senior judicial registrar, but possibly a judge) to decide on interim orders a parent has requested. Occasionally it takes place as part of your first court event.
The hearing cannot last more than two hours. Each parent speaks to the specific issue in question, but they cannot have witnesses testify and usually cannot question the other parent.
Once the judicial officer issues an order, the parents may ultimately agree to turn it into a consent order. This would make the remaining steps unnecessary unless other issues in the case remained undecided.
Some cases: Child impact report
Often, your judicial officer will order a child impact report to get a better understanding of your child's needs.
Before writing the report, a social worker or psychologist employed by the court (called a court child expert) meets at least once with each parent, usually via video call. They might also need an in-person appointment with each of you to watch you interact with your child.
In addition, the court child expert meets privately with your child, generally in person. If you have multiple children, the expert may meet with them all at one time. Children answer questions about their lives but are never forced to give opinions about their parents.
The judicial officer and the lawyers in the case (or the unrepresented parents) receive copies of the report. No one else can see it without the court's permission, so do not show it to anyone.
Each parent and the ICL can question the court child expert about the report in trial.
Step 4: Dispute resolution
Except where collaborating is unsafe, parents must try to resolve their disputes with an approved method in the first five months of their case.
The parents attend at least one confidential meeting together to discuss solutions to their conflicts over their child. Each meeting may last several hours.
Parents with sufficient incomes must pay to work with a registered family dispute resolution practitioner outside the court. Other parents attend a family dispute resolution conference for free with a judicial registrar (and possibly a court child expert as well).
This requirement is in addition to the alternative dispute resolution method you must use before lodging a case.
Some cases: Family report
When a case seems destined to go to trial, the judicial officer commonly orders a family report, which is more comprehensive than a child impact report. A parent or ICL can request this, or the judicial officer can order one without a request.
While only a court child expert can write a child impact report, a family report can also be completed by a psychologist or social worker who is not a court employee. The general term for whoever completes your report is family consultant.
As for a child impact report, the family consultant interviews the parents and the child and may observe parent-child interactions. For a family report, the consultant may also interview people like relatives.
The consultant ultimately writes a report that includes recommendations for parenting orders. The judicial officer does not have to follow these recommendations.
If you receive a copy of the report, do not show it to anyone beyond your lawyer.
Each parent and the ICL can question the family consultant about the report in the trial.
Parents do not have to pay for a family report. However, they may ask the court for permission to have another professional write a report, which they would pay for themselves.
Some cases: Judicial settlement conference
A judicial settlement conference is another dispute resolution conference, but this time a judge or senior judicial registrar oversees discussions between the parents.
The court orders parents to this conference where it seems they could agree if they had a judicial officer's expertise. The officer may propose solutions but does not force or try to convince parents to do anything.
This conference is still confidential, meaning no information shared can be used in court or in the court's decision.
Step 5: Compliance and readiness hearing
Before you go to trial, the court makes sure you're ready in a compliance and readiness hearing.
In this hearing, a judge (or, sometimes, a senior judicial registrar) checks whether you've followed all the court's instructions and assigns a judge for the trial. If you had a judicial settlement conference with a judge, a different judge conducts your trial.
The court aims to hold a compliance and readiness hearing before a case is six months old. Afterward, you may have a six-month wait to get to your trial. Use the time to finalise your evidence.
Some cases: Trial management hearing
Usually only cases in Division 1 have a trial management hearing.
Here, the judge assigned to the trial discusses with the parents (or the parents' lawyers) how that event will work. They cover what evidence is allowed and more.
Step 6: Trial (final hearing)
The court has a new goal of getting cases to trial within a year of their filing dates, but this has historically taken up to three years.
When you get to trial, it may finish in one day or require several. Each parent has to pay a daily fee: $660 in Division 2 and $900 in Division 1.
A trial is more formal than other hearings. The judge decides the exact procedures, but generally:
- The judge asks the applicant for a brief explanation of the dispute.
- The applicant is sworn in and asked to add any information.
- The other parent questions the applicant. (In many cases with domestic violence, a lawyer must ask the questions.)
- The applicant calls a witness and asks them questions.
- The other parent questions the witness.
- The applicant may ask the witness clarifying questions or go straight to calling their next witness.
Once the applicant has called all their witnesses, this process repeats for the respondent. If the case has an ICL, the ICL also participates, presenting evidence and questioning witnesses.
To conclude, the judge asks both sides and the ICL for a summary of their main points.
If you have a lawyer, they do the bulk of the talking for you. You generally will only speak when you testify and answer resulting questions.
If the judge feels parents are close to an agreement, they adjourn to let the parents talk privately in a meeting room. A registrar facilitates when parents do not have lawyers. Should parents reach an agreement, the court can issue a consent order.
If your trial finishes without an agreement, the judge makes the final decisions. They often don't announce them until weeks or months later. The court tells you when to return to have the final orders issued.
It's crucial you see a trial as a worst-case scenario and try to reach an agreement with the other parent quickly. A trial stresses parents as well as their child, and each parent could end up spending over $100,000 in legal fees by the close.
Staying organised throughout court proceedings
Court proceedings require serious organisation.
The Custody X Change app lets you create and manage all of this in one place. It helps you prepare for every step of your case.
Take advantage of custody technology to get what's best for your child.
Custody X Change helps you create a parenting plan so you can avoid court.