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Pre-action procedures in parenting cases

Information about what steps you must take before you can apply for parenting orders.

Who can apply for parenting orders?

An application for parenting orders can be made by:

  • a parent
  • a grandparent
  • any other person concerned with the care, welfare or development of the child, for example aunts, uncles, and the de facto partner of a parent.

The pre-action procedures

If you and your ex-partner can’t agree on the parenting arrangements for your child, you must make a genuine effort to resolve your dispute before you can apply for parenting orders. There are a number of steps you must take, which are known as the pre-action procedures. These include:

You must follow the pre-action procedures if:

  • you want to apply for parenting orders
  • your ex-partner wants to apply for parenting orders.

While you follow the pre-action procedures, you are expected to act in a sensible and responsible manner.

You must consider:

  • what is in the best interests of your child, including the need to protect them against risk or harm
  • the need to promote the safety of the child and each person who has care of the child
  • your child’s needs and you and your ex-partners capacity to meet those needs
  • the benefit of your child having a relationship with people who are significant to them, if it is safe
  • the potential damage your child would suffer if they were involved in a dispute between you and your ex-partner, particularly if they were encouraged to take sides or take part in the dispute
  • the impact of applications for parenting orders that aren’t made based on what is in the best interests of your child
  • the best way of identifying and resolving the issues in dispute
  • the impact of your correspondence on your ex-partner
  • how to avoid long,  unnecessary, hostile and inflammatory exchanges
  • your duty to make full and frank disclosure of all information relevant to your case.

You must not:

  • use the pre-action procedures for an improper purpose, such as to harass your ex-partner or delay the case
  • raise irrelevant issues when corresponding with your ex-partner.

Disclosure

If you and your ex-partner are following the pre-action procedures, you both have a general duty to provide full and frank disclosure of all information relevant to your case in a timely manner. This may include criminal records, medical reports, school reports, letters, drawings, and photographs.

This is an ongoing duty that you must fulfil when you begin the pre-action procedures, and through your case until it is finalised.

For more information, see Disclosure in parenting cases.

Mediation

If it is safe to do so, you and your ex-partner must:

  • cooperate with one another to agree on a mediation service, and
  • make a genuine effort to resolve your dispute at mediation.

For more information, see Family law mediation.

If you reach an agreement at mediation, you should put your agreement into writing. For more information, see Parenting agreements.

If you are unsure whether you and your ex-partner must engage in mediation, you should get legal advice.

Section 60I Certificate

To apply for parenting orders, you will need to file a section 60I certificate with your application or apply for an exemption.

To get a section 60I certificate, you must contact a mediator about mediation.

A mediator can issue a section 60I certificate if:

  • mediation is not appropriate in your case
  • you or your ex-partner don’t attend mediation
  • if you or your ex-partner don’t make a genuine effort during mediation
  • you both made a genuine effort during mediation but couldn’t reach an agreement.

A section 60I certificate is valid for 12 months. If you have a valid section 60I certificate, you can apply for parenting orders. You must file this certificate with your application, unless the court grants you an exemption.

For a sample certificate, see:

If you and your ex-partner reach an agreement at mediation, you won’t be given a section 60I certificate. If you later want to apply for parenting orders, you will need to attend mediation again unless you are exempt.

Exemptions

You can apply for an exemption from filing a section 60I certificate if:

  • your case is urgent, for example, because you are applying for a recovery order
  • there are reasonable grounds to believe that there has been, or there is a risk of, family violence or child abuse
  • you or your ex-partner can’t participate effectively in mediation, for example because you are too far away
  • you are applying because you allege that your ex-partner has  breached an order that was made within the last 12 months, and there are reasonable grounds to believe your ex-partner showed a serious disregard for their obligations under the order they breached.

You will need to explain to the court why you are applying for an exemption.

If you are applying for interlocutory or interim parenting orders, you can do this in your affidavit.  

If you aren’t applying for interlocutory or interim parenting orders, you must complete an Affidavit – Non-Filing of Family Dispute Resolution Certificate and file it with the rest of your completed forms.

You can get a copy of this form from the Family law forms page on the Federal Circuit and Family Court of Australia website.

You don’t need to file a section 60I certificate if you and your ex-partner are applying for consent orders.

For more information, see Before you file – pre-action procedure for parenting cases (prescribed brochure) on the Federal Circuit and Family Court of Australia website.

Exemption refused

If you are not granted an exemption from filing a section 60I certificate, your application for parenting orders will be rejected. You will need to attempt mediation and get a section 60I certificate before you can re-apply for parenting orders.

If you applied for property settlement orders as well as parenting orders, you can file a new application for property settlement orders only.

Notice of intention

Before you apply for parenting orders, you must send your ex-partner a written notice of intention if:

  • you can’t attend mediation because there is no appropriate mediation service available
  • someone fails or refuses to attend mediation, or
  • you fail to reach an agreement at mediation.

Your notice of intention must include:

  • the issues that you and your ex-partner can’t agree on
  • the parenting arrangements you want
  • the orders you will ask for if your case goes to court 
  • a reasonable time that your ex-partner must respond to you – this must be no less than 14 days.

If you receive a notice of intention from your ex-partner, you must reply to their notice in writing stating whether you accept their offer to settle the case. You must reply within the time given in their notice.

If you agree with their proposed parenting arrangements, you should put your agreement into writing. For more information, see Parenting agreements.

If you don’t agree with their proposal, you must send them a letter that explains:

  • that you disagree  with their proposal
  • the issues that you and your ex-partner can’t agree on
  • the parenting orders you will ask for if your case goes to court
  • the parenting arrangements you want
  • a reasonable time that your ex-partner must respond to you – this must be no less than 14 days.

If you are unsure how to respond or whether you should respond to a notice of intention from your ex-partner, you should get legal advice.

Failure to comply

You and your ex-partner must follow the pre-action procedures before you apply for parenting orders, unless you are exempt.

The court may find you haven’t followed the procedures if you don’t:

  • attend mediation
  • send your ex-partner a notice of intention
  • respond within a reasonable time to your ex-partner’s notice of intention.

If you don’t follow the pre-action procedures, the court may stay your application (pause your case) for parenting orders until you have completed the procedures. The court may also make a costs order against you.

If you are unsure whether you have complied with the pre-action procedures, you should get legal advice.

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