HOMEParenting
Parenting
Children and separation
Even though you are separating, both parents are the most important people in your child/ren's lives. The best arrangements for the future are those where:
-the children continue to have a loving and meaningful relationship with both their parents and other family members
-both parents continue to share responsibility for their child/ren
-the children live in a safe environment, with no violence or abuse.
If you agree on parenting arrangements
If you and your former partner agree on the future arrangements for your child/ren after separation you do not have to go to court, you can:
make a parenting plan, or
obtain consent orders approved by a court.
You should also seek legal advice when considering which approach is best for you.
If you can't agree on parenting arrangements
Parental responsibility and parenting orders
Each parent has parental responsibility for each of their child/ren until aged 18 years. Parental responsibility is not affected by changes in the parents' relationship; for example, if you separate or remarry.
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation their child/ren (see sections 61B to 61DB of the Family Law Act for details).
Courts make orders about parental responsibilities only if the parents cannot agree about the arrangements for their child/ren, these are called parenting orders. Courts can also approve and make consent orders to reflect an agreement reached between parties at any time during the court process.
Before you apply to a court
Before you can apply to the court for parenting orders, including those seeking to change an existing parenting order you will need to participate in pre-action procedures, including attending a Family Dispute Resolution Conference.
Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. Since both parties are involved in shaping a solution, it improves the chances that an agreement will be long lasting.
If there is a history of family violence or child abuse, it may not be appropriate to attend family dispute resolution. Speak to staff at the family dispute resolution service about your options and the support services that are available.
To find a family dispute resolution service provider in your local area, call the Family Relationships Advice Line on 1800 050 321 or go to www.familyrelationships.gov.au.
The dispute resolution section also provides detailed information about the procedures and requirements for using dispute resolution services .
What are parenting orders and can I apply?
Parenting orders are a set of orders made by a court about parenting arrangements for a child. You or the other party may enter into a parenting plan or apply to court for consent orders. Before deciding if you would like to apply for orders, read the brochure, ‘Marriage, families and separation’.
A parenting order may deal with one or more of the following:
1 who the child/ren will live with
2 how much time the child/ren will spend with each parent and with other people, such as grandparents
3 the allocation of parental responsibility
4 how the child/ren will communicate with a parent they do not live with, or other people, and
5 any aspect of the care, welfare or development of the child/ren.
Independent Children's Lawyer
What is an Independent Children’s Lawyer?
An independent children’s lawyer (ICL) represents your child’s best interests and makes sure that is the focus of any decisions about parenting arrangements.
The Court can appoint an ICL under s.68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children or any other person, to represent and promote the best interests of a child in family law proceedings.
An ICL is usually appointed by the court upon application by one of the parties where one or more of the following circumstances exist:
there are allegations of abuse or neglect in relation to the children
there is a high level of conflict and dispute between the parents
there are allegations made as to the views of the children and the children are of a mature age to express their views
there are allegations of family violence
serious mental health issues exist in relation to one or both of the parents or children, and/or
there are difficult and complex issues involved in the matter.
What is the role of an ICL?
ICL’s are obliged to consider the views of the child, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests.
Their main roles include:
1 arranging for necessary evidence, including expert evidence, to be obtained and put before the court
2 facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case
3 acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate
What information does an ICL consider to determine what is in the children’s best interests?
The ICL may:
1 meet with the children. This is usually the case, unless the child is under school age, or there are exceptional circumstances
2 speak to the children’s counsellors, school teachers and principals
3 examine documents from organisations such as schools, Department of Family and Community Services, the Police, and
4 medical, psychiatric and psychological records of the children and their parents;
5 question witnesses, including parents and experts, at the final hearing;
6 arrange for a family report from a family consultant.
What is a family report and do I need one?
The ICL may arrange for a family report if required. The family report is a written report which is prepared by a family consultant who is appointed by the Court. It provides an independent assessment of the issues in the case and can help the judge hearing the case to make decisions about arrangements for the child/ren. It may also help reach agreement.
Complying with orders about children
When a parenting order is made, each person affected by the order must follow it. If the other person has not followed a parenting order, the following options are available:
1 attend dispute resolution
2 getting legal advice, and
3 apply to the court for orders.
How is a parenting order contravened (breached)?
A person breaches a parenting order, which has not been altered by a parenting plan, when they:
1 intentionally fail to comply with the order, or
2 makes no reasonable attempt to comply with the order, or
3 intentionally prevents compliance with the order by a person who is bound by it, or
aids or abets a contravention of the order by a person who is bound by it.
4 If a court decides that a person has failed to comply with an order, it will consider whether the person had a reasonable excuse for breaching the order.
What happens if a parenting order is breached?
A court can only penalise someone for failing to comply with a parenting order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order.
If you breach a parenting order and you cannot be found, the court may make a location order. This order requires other people or organisations, including government departments; to give any information they have about where you and the child may be located.
If you breach a parenting order by failing to return the child as required, the court may make a recovery order.
How to file a breach of a parenting order?
To apply to the court following a breach of a parenting order, you will need to file:
Contravention Application (this application cannot be eFiled through the Commonwealth Courts Portal.
supporting Affidavit, and/or
a certificate from a registered family dispute resolution practitioner or Affidavit – non filing of family dispute resolution certificate
Do I need to attend court if I file a breach of a parenting order?
If you are the person alleged to have breached a parenting order and do not attend the court hearing, orders may be made in your absence, including an order for your arrest. You can attend in person or ask a lawyer to represent you.
Applying to change an existing order
To change an existing court order, you will need to show that there has been a significant change of circumstances that makes a change necessary.
Please note that a change to the Family Law Act is not a significant change in circumstance in itself. See the Family Law Amendment (Shared Parental Responsibility) Act 2006, Schedule 1, Item 44.
How do I apply to change my orders?
If you have been approached about the change or are served with an application for the change, you should consider if the change proposed is in the best interests of the child/ren. If you agree to the changes:
1 You can sign draft consent orders which the Family Court (not the Federal Circuit Court) can make into orders, without the need for you both to appear in court.
2 Alternatively you may enter into a parenting plan. For more information, see the section 'If you agree on arrangements' and the Attorney-General's parenting plan guide fact sheet.
Do I need to use a dispute resolution service?
If you have been to a family dispute resolution service within the previous 12 months, you need not do so again unless you feel it may assist you to resolve the matter.
If you don’t agree, you may some assistance to need to reach an agreement.
If you cannot reach an agreement, you follow the same process as if you were applying to the court for the first time.
Relocation and travel
Moving away
Moving with your child/ren to another town, state or country is known as relocation. If moving is going to limit the time your child/ren live with or spend with a parent or another significant person in their lives, a court may not give permission. If your child/ren primarily lives with you and you need to relocate, you should first try to talk to the other party.
Reaching an agreement about the relocation
You may be able to reach an agreement for the child/ren to stay with the other parent for longer periods of time in school holidays and/or longer visits during the year. Your former partner may be able to move to where you are hoping to relocate.
Attending Dispute resolution may assist you in reaching an agreement about the relocation.
If you reach agreement with the other party, it is best to enter into a written parenting plan or apply to the Family Court for consent orders before you move.
What if we can't agree about relocation?
If you cannot agree about relocating, you can apply to a court for orders to allow you to move. The Court may not grant permission. The Court will consider the best interests and welfare of the child/ren.
If you move without a court order or without the consent of the other party, a court may require you to return with the child/ren until the case has reached an outcome. If there is a court order in place, you will be breaking the order and the other parent can apply to enforce the current order.
Can my child/ren travel overseas?
If you are planning a holiday and plan to travel overseas with your child/ren, you should advise the other parent (and any other person with parental responsibility) of your intention as soon as possible. You should include full details of where you will go, confirm a full itinerary will be provided and include contact numbers for hotels or relatives.
How do I apply for a passport for my child?
If written consent is provided by all parties with parental responsibility, applications can be lodged at an authorised Australia Post office or any Australian Passport Office.
If written consent is not provided by all parties with parental responsibility, you can make a written request to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’. For more information about requests to consider ‘special circumstances’ contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au
How can I prevent a child/ren from leaving Australia?
If you are concerned that a child/ren may leave Australia without your permission, you should seek legal advice as soon as possible.
You can apply to the Court for an order that:
1 prevents a passport being issued for a child by:
lodging a Child Alert Request at any Australian Passport Office, or
applying to the Court for a child alert order.
For more information about child alerts, contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au.
2 requires a person to deliver a child’s or accompanying adult’s passport to the Court:
If there is a possibility or threat that a child/ren may be removed from Australia on a current passport, you can apply to the Court for orders. The Court may order the delivery of a child’s or accompanying adult’s passport to the Court. If ordered, the person in possession of the child’s passport must deliver it to the Court. The Court will keep it for the specific amount of time detailed in the court order or until further order of the Court.
3 prevents a child/ren from leaving Australia.
If there is a possibility or threat that a child/ren may be removed from Australia, the Court can make orders which:
restrain the removal of the child from Australia
request that the Australian Federal Police (AFP) place the child’s name on the Airport Watch List, and
request that the AFP assist in the implementation of the order/s.
What if the Court is not open when I need to make an urgent application?
The Court has an out-of-hours service for emergencies: that is, there is a risk that a child may be taken out of the country before the next working day. Call the courts on 1300 352 000 out of business hours and you will be referred to this emergency number.
What if my child/ren relocated and cannot be found or has not returned from overseas?
In Australia
If the court has issued a parenting order and it is breached and you cannot be found, a court may issue a location order. This requires other people or organisations, to give any information they have about where you and the child/ren may be located.
If you breach the parenting order by failing to return the child/ren as required, a court may also make a recovery order.
Overseas
If your child/ren has been taken from Australia without your consent, or has not been returned to Australia, you should contact the Commonwealth Attorney-General’s Department for assistance.
Australia has an agreement with some countries to return abducted children to their country of usual residence. This agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
Recovery orders
When a parenting order is made, each person affected by the order must comply with it. For information on the process, should the order be breached, see How do I apply to the court when parenting orders have been breached or not complied with.
What is a recovery order?
A recovery order is defined in section 67Q of the Family Law Act 1975 . It is an order of the Court that can require a child be returned to a:
parent of the child
person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
person who has parental responsibility for the child.
Who can apply for a recovery order?
You can apply for a recovery order if you are:
a person who the child lives with, spends time with or communicates with as stated in a parenting order
a person who has parental responsibility for the child in a parenting order
grandparent of the child, or
a person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.
How do I apply for a recovery order?
Before you apply for a recovery order you should read the fact sheet Recovery orders. You should also refer to the Australian Federal Police Family Law Kit .
There are different processes for applying for a recovery order depending on whether you have a current parenting order or a parenting case pending in the Court. If there are no parenting orders in place you will need to file an initiating application seeking parenting orders at the same time as applying for a recovery order.
What happens next?
The Court is not a child recovery agency. If the Court makes an order authorising or directing another person or persons to find, recover and deliver the child, you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).
If the Court makes an order for the recovery of a child, the applicant will need to complete the Recovery Order Family Law Information Sheet .
The AFP has offices in each capital city and some regional locations. Contact details are available on www.afp.gov.au .
When the child is returned to you, you must notify registry staff at the Court as soon as practicable.
What if the child still isn’t found?
In some situations, you may ask the Court to issue other orders to help locate the child; for example:
Location order – if you breach a parenting order and you cannot be found, a court may make a location order.
Commonwealth Information order – requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child’s location that is contained in or comes into the records of the department.
Publication order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.
My child has been taken overseas without my permission, what can I do?
If your child is taken from their home country without your permission, or without the authorisation of a court, then the Hague Convention may apply.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty under which arrangements are made for the return of children that have been wrongfully removed or retained outside their country of residence.
The Convention has set up a central authority in each signature country to deal with applications for the return of children taken to or from each country.
The Australian Government Attorney-General’s Department is the central authority for Australia.
For detailed information about the Convention including what countries have agreements in place, and the application process, see the section titled, International parental child abduction on the Attorney-General’s Department website.
Grandparents and other family members
What is a kinship carer?
When children can’t live with their parents, someone in the extended family or a family friend might become their primary carer including, aunts, uncles, grandparents, sisters and brothers in Australian families. This is called kinship care. Kinship carers don't have set roles as parents do. A child/ren may have come to live with you for a short time, until their parents can care for them. Or you could be raising the child/ren in the long term because the child’s parents can’t do it themselves.
What if I am a grandparent carer?
The law recognises the importance of a child/ren continuing to have a relationship with grandparent’s after separation. It states that children have the right to spend time and communicate with their parents, and other people important to them, such as grandparents, relatives and members of extended families. Sometimes grandparents take on a more permanent caring role for their grandchildren.
There are some valuable resources available to assist with defining what your role as a grandparent carer:
1 Family Relationships online have information about your role as a grandparent and links to supporting organisations.
2 Women’s and Children’s health network who discuss various aspects of grandparenting and the roles they play.
3 The Australian Parenting website, Raising Children have a dedicated grandparent section titled, Being a grandparent carer and a library of grandparent video’s where grandparents talk about becoming full-time carers of their grandchildren.
Can I apply for orders if I am the kinship/grandparent carer of my grandchild?
A parenting order is a set of orders made by a court about parenting arrangements for a child. If you are a kinship/grandparent carer, you can apply for a parenting order for the child/ren.
What happens if the parenting orders are breached?
A court can only penalise someone for failing to comply with a parenting orders, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order.
Where can I get legal advice?
You should get legal advice before making a decision about what to do or applying to the Court. A lawyer can help you understand your legal rights and responsibilities as a kinship parent, and explain how the law applies to each case. Legal advice is available from:
1 legal aid
2 a community legal centre, or
3 a private law firm.
Court staff can help with questions about court forms and the court process, but cannot give legal advice. If you need legal help, you will need to get advice from a lawyer.
