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Your safety is important
If you feel unsafe or are experiencing any violence, contact the police, a domestic violence counsellor or get legal advice.
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Upcoming changes to Family Law
On 6 May 2024 new laws relating to family law parenting matters will come into effect, changing:
- what a court must consider when determining what is in a child’s best interests, and
- how separated parents make decisions about long-term issues regarding their children.
The changes will affect:
- parties involved in parenting proceedings that continue after 6 May 2024
- parties who apply for parenting orders after 6 May 2024.
Parenting orders made before this date won’t automatically be changed by the new laws, however, and they will remain in force. If you have existing parenting orders, you must continue to follow them while they are in force.
For more information, see Family law changes from 6 May 2024 on the Federal Circuit and Family Court of Australia website.
If you and your partner have separated, you will need to decide the parenting arrangements for your child.
If it is safe, you should try to negotiate a parenting agreement with your ex-partner. This is the quickest and easiest way to make a parenting agreement.
If you can’t agree on the parenting arrangements for your child, you will need to attend mediation before you can go to court.
The law does not tell you how to care for your child after separation. You and your ex-partner are responsible for deciding the parenting arrangements for your child.
You and your ex-partner are presumed to have equal shared parental responsibility for your child. You are both equally responsible for making all the major long-term decisions regarding the care, welfare, and development of your child, including:
- where your child lives
- where your child goes to school
- what medical treatment your child receives.
This does not include day-to-day decisions about the care of your child, such as what your child wears and eats.
You are legally required to make a genuine effort to consult with your ex-partner and reach agreement about these issues.
You share this responsibility regardless of what type of relationship you were in, if at all.
A part of exercising your parental responsibility is deciding where your child is going to live and how much time your child will spend with each of you. Who has parental responsibility for your child, where your child will live and how much time your child will spend with each parent are all separate issues. Sharing parental responsibility doesn’t necessarily mean you will spend equal time with your child, unless you agree to this, or it is ordered by a court.
While you decide your parenting arrangements, you may also need to discuss child support. For more information, see Child support.
If you and your ex-partner can agree on the parenting arrangements for your child, you don’t need to go to mediation or apply for court orders. You can make an informal agreement or a parenting plan.
If you want an agreement that is legally binding, you can apply for consent orders.
An informal agreement can include a verbal or written agreement.
There are no rules for making an informal agreement. It can be as detailed or as simple as you like, and for a short or long period of time.
If you make an informal agreement, you should put it in writing. This will help avoid misunderstandings and disputes about the terms of your agreement.
You and your ex-partner can change your agreement at any time by making a further agreement. There are no rules about how to change an informal agreement.
You don’t go to court for an informal agreement. For this reason, your agreement won’t be legally enforceable.
A parenting plan is a written agreement, voluntarily entered into, signed and dated by both parents, that sets out the care arrangements for their child. This includes a parenting plan that was made overseas.
There are no rules about how a parenting plan must be set out. It can be as detailed or as simple as you like.
A parenting plan must cover at least one of these issues:
- who has parental responsibility for your child
- who your child lives with
- who your child spends time with
- the communication your child has with the other parent and family members
- financial support for your child
- the process for resolving parenting disputes
- the process for changing the parenting plan
- any aspect of the care, welfare or development of your child.
A parenting plan does not have to be witnessed by an authorised witness.
You don’t go to court for a parenting plan. For this reason, your parenting plan will not be legally enforceable. You can’t be punished by a court for not following your parenting plan. However, it can be used as evidence of your parenting agreement if you end up in court.
You and your ex-partner can change your parenting plan at any time by making a further parenting agreement.
Consent orders are parenting arrangements agreed to by both parents that are approved by a court.
They are legally enforceable. You and your ex-partner must follow your consent orders. If you breach your consent orders without a reasonable excuse, you can be punished by a court. Consent orders have the same effect as orders made by a Judge after a hearing.
You can apply to the Federal Circuit and Family Court of Australia or Local Court of NSW for consent orders.
Before you apply for consent orders, you should get legal advice. Consent orders are meant to finalise your parenting matter so that you don’t come back to court. If you decide you want to change your consent orders, you will have to follow the pre-action procedures and negotiate with your ex-partner about any changes. If you and your ex-partner can’t agree on how to change the orders, there are only limited circumstances when you can apply to change the orders.
If you and your ex-partner can’t agree on the parenting arrangements for your child, you must take genuine steps to resolve your parenting dispute before you can apply for parenting orders.
You must:
- attempt a type of mediation called Family Dispute Resolution, and
- write to your ex-partner to identify the issues still in dispute, make a genuine attempt at resolving the dispute, and state the orders you will seek if you apply for parenting orders.
These steps are known as pre-action procedures.
In limited circumstances, you may be exempt from following the pre-action procedures where:
- your matter is urgent
- there has been, or there is a risk of, child abuse or family violence
- you or your ex-partner cannot participate effectively in mediation
- your ex-partner has breached a parenting order that was made within the last 12 months, and there are grounds to believe that your ex-partner has shown a serious disregard for their obligations under the order.
If you think you are exempt from the pre-action procedures, you should get legal advice.
For more information, see Mediation.
If you and your ex-partner can’t decide on the parenting arrangements for your child, and you have followed the pre-action procedures, you can apply to the Federal Circuit and Family Court of Australia or Local Court of NSW for parenting orders.
This is an option of ‘last resort’ as it is the most expensive, and time consuming way to make parenting arrangements.
The Court will decide what parenting orders to make based on what’s in the best interests of your child. What is in the best interests of a child is determined on a case-by-case basis according to the needs of each child.
There are two primary considerations that the Court must take into account when deciding what orders are in the best interests of your child:
- the need to protect your child from physical or psychological harm caused by experiencing, or witnessing, abuse, neglect, or family violence, and
- your child’s right to a meaningful relationship with both parents.
The Court must give greater weight to the need to protect your child from harm.
The Court must also consider additional factors, including:
- the effect that changing the parenting arrangements would have on your child, including separating your child from their siblings
- the capacity of both you and your ex-partner to provide for your child
- your child’s relationship with you, your ex-partner and any other person who is important to them
- your child’s views.
The weight that the Court gives to your child’s views will depend on your child’s age, maturity, or level of understanding. Older children’s views may be considered more significant than younger children.
While the Court must consider your child’s views, it must also consider all of the other factors relevant to deciding what orders are in the best interests of your child. The Court won’t make orders based solely on your child’s views.
For more information, see Children: We cannot agree on the Federal Circuit and Family Court of Australia website.
If you are concerned about your safety while attending court, you should speak to the Court registry at least five working days before the hearing.
The Court can take steps to ensure your safety, including:
- using the safe room
- entering and leaving the courthouse from a different exit
- attending by telephone or video
- having a support person at court
- closing the Court to the public
- excluding certain people from being in the courtroom.
For more information, see Safety at court on the Federal Circuit and Family Court of Australia website.
If you need an interpreter, you should arrange one before the hearing.
If you can’t afford an interpreter, the Court may arrange one for you. You should contact the Court at least two weeks before the hearing to arrange an interpreter.
For more information, see Interpreter policy and guidelines on the Federal Circuit and Family Court of Australia website.
If you have a disability, medical condition or other special needs that means you require support from the court, you should contact the Court at least one week before the hearing.
For more information, see Court support on the Federal Circuit and Family Court of Australia website.
You can bring a support person with you to court. This may be a friend or relative. Your support person will not be allowed to speak for you or sit at the bar table with you.
In parenting proceedings, the Court can appoint an Independent Children’s Lawyer (ICL) to represent your child.
The ICL will provide information to the Court about your child’s views and what parenting arrangements are in their best interests.
When deciding what arrangements are in your child’s best interests, the ICL will:
- read all of the affidavits and documents filed with the Court
- read any subpoenaed documents, including school or medical records
- talk to your child, unless your child is under school age, or there are exceptional circumstances
- talk to the family consultant and other relevant people, including your child’s doctors, counsellors, school teachers and principals
- question witnesses, including you and your ex-partner and any experts, at the final hearing.
For more information, see the brochure What is an Independent Children’s Lawyer?
Under the law, a child has a right to regularly spend time and communicate with people significant to their care, welfare, and development, such as grandparents, relatives and members of extended families.
Grandparents and a person concerned with the care, welfare and development of a child can apply for parenting orders, including an order to spend time with a child.
However, before you apply, you must follow the pre-action procedures unless you are exempt.
For more information, see Are you a grandparent? Your legal questions answered.
The easiest and cheapest way to change your parenting agreement is to negotiate a new agreement with your ex-partner, where it is safe for you to do so.
If you have an informal agreement or parenting plan, you can change it at any time by making a new agreement.
If you have parenting orders (including consent orders), you can also change your orders at any time by making a new agreement with your ex-partner, unless an order says otherwise. You can do this by:
- making a parenting plan, or
- applying for consent orders.
As a parenting plan is not legally enforceable, you can’t create new legal obligations or change existing ones by making a parenting plan. If you change a parenting order with a parenting plan, that order will no longer be legally enforceable once the parenting plan has been signed by you and your ex-partner. If your ex-partner doesn’t follow the terms of the parenting plan it cannot be enforced, and they can’t be punished by a court for breaching the parenting plan. If you want to make changes to your parenting orders that are legally enforceable, you will need to apply for consent orders.
Before you update your parenting orders with a parenting plan or consent orders, you should get legal advice. It is important you understand what your legal obligations will be under your new agreement and how the changes will affect any orders that you want to keep.
If you and the other parent can’t agree about how to change your parenting orders, you will need to follow the usual process for resolving parenting disputes and comply with the pre-action procedures, unless you are exempt.
If you and your ex-partner still can’t agree, you will need to ask the Court for leave (permission) to apply to change your parenting orders. You will need to show the Court there has been a significant change of circumstances for it to give you leave and consider your application.
If you change your parenting agreement and you have a child support assessment, you must notify Services Australia within 28 days as this may affect your child support assessment and entitlements to Centrelink benefits.
For more information, see Child support.
For more information, see Changing parenting arrangements on the Federal Circuit and Family Court of Australia website.
Neither informal agreements nor parenting plans are legally enforceable. If your ex-partner breaches this type of agreement, you must follow the usual process for resolving parenting disputes and comply with the pre-action procedures, unless you are exempt.
If you have parenting orders, you and your ex-partner must comply with every order that affects you. This includes taking all reasonable steps to comply with an order.
You will breach a parenting order if you:
- intentionally fail to comply with the order
- make no reasonable attempt to comply with the order
- intentionally prevent a person who is bound by an order from complying with it, or
- aid or abet a person who is bound by an order to breach it.
If your ex-partner has breached an order, you must follow the usual process for resolving parenting disputes and comply with the pre-action procedures, unless you are exempt. This includes attending mediation.
Mediation offers you and your ex-partner the opportunity to address any issues that may be causing the breach, or misunderstandings about how your orders operate.
If you can’t resolve your dispute, or you are exempt from mediation, you may be able to make a contravention application to the Federal Circuit and Family Court of Australia.
There are serious consequences for breaching a parenting order without a reasonable excuse.
A court can order you or your ex-partner to:
- attend a post-separation parenting program
- give the other parent make-up time
- pay compensation to the other parent
- enter into a bond
- participate in community service
- pay a fine
- go to gaol
- pay the other parents’ legal costs.
For more information, see Children: Compliance and enforcement on the Federal Circuit and Family Court of Australia website.
There are a number of different counselling services available to families to help deal with the stress of separation, ongoing relationship issues and conflict between family members.
Family counselling is available to individuals, separated couples, parents and their children, and extended family members, for example grandparents.
The cost of family counselling varies depending on which service you use and your ability to pay.
Family counselling is confidential. This means anything that is said, and any documents produced in counselling cannot be shared, except with the permission of the people who attended, or in limited circumstances to prevent a serious threat to someone’s life or a crime being committed.
For more information, see Counselling on the Family Relationships online website.
Post separation parenting programs help parents to support their child through a family separation and manage their relationship with their former partner. They support parents to resolve parenting disputes peacefully and minimise conflict so that it doesn’t impact their child.
If you are involved in parenting proceedings, the Court may order you to attend a post separation parenting program.
To find your nearest program provider, see Find local help on the Family Relationships Online website.
Ways to get help
Useful links
- amica
- Attorney-General’s Department: Parenting orders – what you need to know
- Federal Circuit and Family Court of Australia: Children: Overview
- Federal Circuit and Family Court of Australia: How the Court process works for parenting cases
- Federal Circuit and Family Court of Australia: How the voice of the child is heard?
- Willow: kids
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