Parenting orders — Going to court

A parenting order refers to a set of orders made by a court about parenting arrangements for a child after a hearing process.

Unless you already have dealings with the Family Court of Australia, you can apply to the Federal Circuit Court for parenting orders. The Family Court of Australia and the Federal Circuit Court of Australia are separate independent courts but share jurisdiction in all family law matters. The Family Court deals with more complex matters such as international child abduction and child sex abuse. All other cases including child support, should be filed in the Federal Court Circuit which deals with less complex matters that are likely to be decided quickly.

Parenting orders can be made in the short term during court proceedings (interim orders), and in the long term once a final decision has been made (final orders). Parenting orders are legally enforceable, and penalties can be imposed if they are not followed.
When an order is made, each person bound by the order must follow it, which means taking all reasonable steps to ensure that the order is put into effect.

Even if the needs and circumstances of you, your children or your ex-partner change, the order remains in force until a new parenting order or parenting plan changes it. Some community services can help you and your family adjust to and comply with court orders.
Parenting orders may cover any of the following issues:

who the 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 child’s care, welfare or development.

A parenting order can stipulate steps that both parties must follow before applying to a court to change an order. It can also state the process for resolving disputes that arise from the order. A parenting order may be altered if a parenting plan is agreed to by both parties in the future.

Who can apply for a parenting order?

Any of the following persons can apply for a parenting order for a child:

child’s parents
child
child’s grandparent
any other person concerned with the child’s care, welfare and development.

The court process

Once an Initiating Application for parenting orders is filed, it will be set down for hearing.
The applicant will then have to serve (provide) a copy of the Initiating Application and supporting documents on the other parent and any other parties.
Those other parties will have to provide their own formal written Response and file it with the court and serve them on other parties.
At the first court hearing various procedural orders may be made, and all parties may be asked to meet with a family consultant.
The court can also make interim orders regarding:
- where the child will live,
- the allocation of parental responsibility and
- whether the child will spend time with the other parent or any other persons before they make their final decision.
In some cases the Court can appoint an Independent Children’s Lawyer, who helps the court to decide what arrangements are in the children’s best interests see the Family Court of Australia’s web page on Independent Children’s Lawyers.
There can be further hearings in the interim. Once all evidence that the parties intend to rely on has been obtained, then the parties will have to prepare for a final hearing.
At the final hearing all parties and their witnesses will have to give evidence, before the Judge makes a final decision.
- Up until this point, the parties can still try to resolve the dispute by agreement and file consent orders.
- If consent orders are not reached, then the Judge that is appointed in their case will make the parenting orders that they believe are in the children’s best interests. This can mean that a parent will not necessarily be happy with the orders or decision made by the Judge.

Visit the Family Court of Australia website to find out more about the steps involved for court proceedings — but note that these may vary depending on your case.

What is a family consultant?

A family consultant is a psychologist and/or social worker who specialises in children and family issues, particularly after separation. They can help resolve your dispute, give advice and evidence to the court about your case, provide a written report on your family to the court, and give recommendations and advice about available services for families. They may interview the different parties and other significant people in the children’s lives; they may also talk to the children, and spend time with parents and children together. Anything said to a family consultant is not confidential and may be used in court at a later date.

How does the court decide on a parenting order?

1. Best interests of the children

The court’s most important consideration when making a parenting order is the best interests of the children. This means children having a meaningful relationship with both parents, and being protected from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence. Greater weight is given to the need to protect children from harm.
Other best interests considerations the court takes into account include:

any views expressed by the child (depending on age and maturity level)
the child’s relationship with each parent and with any other important person
how involved each parent is in making major long-term decisions about the child
how much time each parent has spent with and communicated with the child
whether each parent has financially maintained the child or failed to do so
how changing where the child lives or stays may affect them
how practical or costly it will be for the child to see each parent, and how this will affect the child’s right to have a relationship with them
how much each parent and any other person can provide for the child’s physical, emotional and intellectual needs the maturity, gender, lifestyle and background of the child and each parent
the rights of Aboriginal or Torres Straits Islander children to enjoy their culture
each parent’s attitude to the child and their parental responsibilities
any family violence involving the child or family member
any family violence order that applies to the child or family member
whether the order will mean less risk of everyone coming back to court, and
anything else the court believes to be important.

2. Parental responsibility

The court must also apply the presumption that both parents having equal shared responsibility of the child is in the child’s best interests. That means both parents must consult with each other before making major long-term decisions regarding the child.

This presumption may not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. If there is satisfactory evidence that it is not in the child’s best interests for both parents to have equal shared parental responsibility, then the court can make orders for sole parental responsibility in favour of one parent.

3. Equal time

If the court does make an order for equal shared parental responsibility, the court will consider whether spending equal time with both parents is in the child’s best interests, and reasonably practicable. If it is, then the court can consider making an order for a child to spend equal time with both parents. If the court makes an order for equal shared parental responsibility, but not for equal time, then the court has to consider whether spending significant and substantial time is in the child’s best interests, and reasonably practicable. Significant and substantial time is where the child spends time with the parent on weekdays, weekends and holidays. It must allow the parent to be involved in:

the child’s daily routine, and
occasions and events significant to the child and parent.

For more details visit Victorian Legal Aid web page on ‘parenting orders‘.

What happens if the order is not followed?

A court order is contravened when the conditions on the order are not followed by the person named on the order. However, courts do not automatically enforce parenting orders, so when parenting orders are not followed, you can:

attend family dispute resolution,
get legal advice, and/or
apply to the court to change or enforce the orders – make a contravention application.

Contravention orders

A person bound by a parenting order will have contravened the order if they:

intentionally did not comply with the order, or
made no reasonable attempt to comply with it

Someone not bound by a court order can breach an order, where they have prevented compliance. A person who has contravened an order may be able to raise a defence that they had a ‘reasonable excuse’ for doing so because:

at the time they did not understand the order, or
they reasonably believed the contravention was necessary to protect the health or safety of a person (including the child).

In hearing a contravention application the court may decide that:

the alleged contravention has not been established
the contravention was established but there was a reasonable excuse for a contravention
there was a less serious contravention without reasonable excuse, or
there was a more serious contravention without reasonable excuse.

A person may have a reasonable excuse for contravening a parenting order. Some examples of reasonable excuses that may satisfy a court include:

the person did not understand the obligations imposed by the order; or
the person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child; and
the contravention did not last longer than was necessary to protect the above person or child.

When contravention without reasonable excuse has been established, the court may do any of the following depending on the level of seriousness:

change the original order
adjourn proceedings to enable an application for a further parenting
order
require the person’s participation in post-separation parenting programs
order the person to compensate the other parent for time lost with the child
order the person to pay the other parent’s legal costs and/or compensation
place the person on a bond
require the person to do community service
order a fine, or
sentence the person to term of imprisonment.

Where there are parenting orders in place that provide for a child to live with, spend time or communicate with a person, then the court can issue an arrest warrant if:

there are reasonable grounds to believe a person has contravened an order; and
there is an application before the court that the person has contravened the order; and
the court is satisfied that a warrant is necessary for the person to
attend before a court.

Location orders

If a party in any family law parenting proceedings cannot be located, then a court may make a Location or Commonwealth Information Order. This requires other people or organisations including government departments to give any information they have about where the parent and the child may be located.

Recovery orders

If you or your ex-partner fails to return the child to the other parent in breach of a parenting order, then a court may make a Recovery Order. This order authorises all officers of the Australian Federal Police and all state and territory police officers to find and recover the child. The order may also allow a search of any aircraft, vehicle, vessel or any other premises where the child may be found. The penalties are listed in Division 13A in the Family Law Act 1975 (Cth). You can access the Family Law Court fact sheet for more information.

What if I think my child may be taken overseas?

If either parent wants to take their child overseas, both parents must provide permission and sign an Australian passport application if they have parental responsibility. If one parent refuses to sign, the other parent can apply to a court to have the passport issued. Australian courts do not have a say over foreign passports being issued by other countries’ embassies.
If you are worried that your child will be taken overseas you need to get immediate legal advice. An urgent application to the court can be made for court orders to prohibit the child from leaving the country; this is called a family law or airport watch list order. For details on the Family Law Kit visit the Australian Federal Police website.

Attending court

Going to court can be stressful and difficult. If you are not represented by a lawyer, you can get a non-legal support person to accompany you on your days in court, or explain to you how the court system works in person or over the phone, by calling Court Network 1800 681 614 or visiting their website.
Understanding how the court system works can better prepare you for court appointments and hearings. Read Victoria Law Foundation’s publication Victoria’s legal system: An introduction to the legal system in Victoria.

Worried about your safety while attending court?

Call the Federal Circuit Court of Australia on 1300 352 000 before your hearing or make an appointment so that safety arrangements can be discussed and put into place. By law, you must inform the court if there is an existing or pending family violence order involving you or your children. You should also ring safe steps Family Violence Response Centre or speak to your family violence worker about how you can stay as safe as possible.

Childcare arrangements

When going to court, make separate childcare arrangements for your children on that day. Generally children cannot go into the courtroom. If you cannot arrange separate childcare and have to bring your children with you, arrange for a friend or family member to attend with you so that they can look after them while you are in court or meeting with a lawyer.

Interpreter service

Should you need an interpreter to assist you at court, inform the court staff at least two weeks before your court appointment or hearing. They will organise to have a professional and independent interpreter available for you at no charge. To access Translating and Interpreting Service (TIS) outside of court, call 131 450.

This information sheet was last updated in 2015