Consent orders, parenting orders and parenting plans

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A guide to preparing a written agreement with your ex-partner about arrangements for your children.

Disclaimer:

This guide is intended to provide you with information only. If you have a legal problem, you should get legal advice from a lawyer. Legal Aid Queensland believes the information provided is accurate as at June 2021 and does not accept responsibility for any errors or omissions.

We are committed to providing accessible services to Queenslanders from all culturally and linguistically diverse backgrounds. If you would like this publication explained in your language, please telephone the Translating and Interpreting Service on 13 14 50 to speak to an interpreter. Ask them to connect you to Legal Aid Queensland. This is a free service.

How can this guide  help me?

This guide provides information on preparing a written agreement between you and your ex-partner about arrangements for your children. It discusses consent orders, parenting plans and parenting orders. It also explains the steps you need to take if you choose to ask a court to formalise your agreement.

When should I use this guide?

Use this guide if:

• you and your ex-partner have children together
• you agree on arrangements for them (for example which parent they live with, how often they see the other parent)
• you want to set out the arrangements in writing
• you don’t want to have a court official such as a judge decide on the arrangements for your children.

This guide contains the information you need if you and your ex-partner are willing to agree in writing about the arrangements for your children. You can also use it if you already have court orders and want to change them, providing you both agree to the changes.

If you and your ex-partner don’t agree on arrangements for your children, or you agree but one of you does not want to put it in writing and sign it, your next step will be to get help to see if you can reach a written and signed agreement. Your options are listed in Can I get legal advice?.

If you have exhausted all avenues (including family dispute resolution) and still cannot agree, you can go to court and ask the court to decide on the arrangements for your children.

Can I get legal advice?

It is always a good idea to get independent legal advice about the agreement you want to put in writing. A lawyer can explain the law and make sure you understand the consequences and effects of the agreement you want to make.

If you need help with preparing your written agreement, you can get legal advice from:

• Legal Aid Queensland — call 1300 65 11 88 (for the cost of a local call from a landline in Australia) for free advice or visit www.legalaid.qld.gov.au
• a community legal centre — visit www.communitylegalqld.org.au or call 1300 65 11 88 to find services in your area
• a private lawyer — call the Queensland Law Society on 1300 367 757 for the names of lawyers who specialise or are accredited in family law.

Even if you have reached agreement with your ex-partner, it is always a good idea to get independent legal advice before formalising it.

Getting help to reach your agreement

When working towards your agreement with your ex-partner, you can discuss the matters yourselves, or you may benefit from the help of counsellors or mediation services to help you both work through all the relevant points and arrive at an agreement that is in your child/ren’s best interests.

For example, even if you currently disagree, you may be able to reach agreement at a dispute resolution conference. This is also known as mediation.

There is excellent information explaining family dispute resolution — what it is, how it works, what it costs etc — at www.familyrelationships.gov.au

Here is a list of organisations that may be able to help you as you work towards an agreement.

Legal Aid Queensland

You can get free legal advice from Legal Aid Queensland about preparing your agreement, or to help you decide which counselling or mediation services might be right for you, or whether you are eligible to apply for legal aid to attend a dispute resolution conference run by Legal Aid Queensland.

Visit www.legalaid.qld.gov.au or call 1300 65 11 88 (for the cost of a local call from a landline in Australia).

Family Relationships Online

Family Relationships Online is a federal government service providing online information, drop-in centres and a free telephone advice line. You can access a wide range of services, including family dispute resolution through this organisation.

Visit www.familyrelationships.gov.au or call the Family Relationship Advice Line on 1800 050 321 for more information on their family dispute resolution service.

Relationships Australia

This organisation also offers counselling and family dispute resolution. Visit www.relationships.org.au or call 1300 364 277.

What is the difference between consent orders, parenting plans and parenting orders?

Consent orders

When you and your ex-partner agree about arrangements for your child/ren, you can apply to the court for orders to be made by agreement. These are called consent orders. Consent orders are court orders that set out what both parents must do. They have the same force and effect as if you had gone to court and the court official, such as a judge, made the decision after a hearing. If you break a court order you are breaking the law and the court could give you a penalty.

Consent orders are usually between the child’s parents. In some circumstances, grandparents and other relatives can also make consent orders about children who are related to them. If you are not a parent or relative of a child/ren you will need to get legal advice about the process you have to follow.

Parenting plans

If you and the other parent agree about parenting matters, you can make a parenting plan rather than apply for consent orders. A parenting plan is a less formal way of agreeing in writing about arrangements for your child/ren. It can be on any sort of paper – there is no set form – and it doesn’t get filed in a court. It can be short and simple or very detailed. It can be in plain English without using legal terms, or it can use legal terms — as long as your agreement is clear.

You can work out a parenting plan yourselves, or with the help of a counsellor or a friend. You don’t need a lawyer to draw up a parenting plan, but you can still ask a lawyer for advice. A parenting plan is a written document that you can use to rely on, instead of a verbal agreement. It can easily be changed (as long as both people agree) without having to go to court.

An agreement can only be a parenting plan if it is made free from any threat, duress or coercion. Parenting plans have to be in writing, dated and be signed by each parent or person involved.

A parenting plan is not a court order. If you break a parenting plan you are not breaking the law, but if you make a parenting plan and break it, the other person may take you to court. The court must consider any parenting plans that were in place. The court may ask you why you broke the parenting plan and might make orders that you do not like as much as the parenting plan.

Also, even though a parenting plan is not a court order, a parenting plan that is signed after a consent order is made may override the consent order. If the parenting plan is different to the consent order, you cannot rely on the consent order or complain that the consent order has been broken. Do not sign anything until you get advice from a lawyer.

Parenting order

If you and your ex-partner don’t agree about arrangements for your child/ren and you apply to the court to decide, you are applying for a parenting order.

A parenting order is an order made by a court about your parental responsibilities and arrangements for your child/ren. If you do not follow a parenting order you may be breaking the law and the courts could give you a penalty.

If you want to apply to the court for a parenting order, or apply to make changes to an existing parenting order, you and your ex-partner must first attempt family dispute resolution before applying to court. You must get a certificate, sometimes called a ‘section 6oI certificate’, from a registered family dispute resolution provider confirming you and your ex-partner attempted a family dispute resolution. There are some exceptions to this requirement, such as cases involving family violence or child abuse.

Making your written agreement

What should we consider when preparing our written agreement?

The Family Law Act encourages parents to talk about and agree on arrangements that are in their child/ren’s best interests. In this guide you will find the parts of the Family Law Act that explain what this means. It includes things like ensuring your child/ren’s safety and the benefit to the child of being able to have a relationship with their parents, and other people who are significant to them (such as grandparents), where it is safe to do so.

Read these parts so you have a good understanding of the principles underlying any agreement you make. If you apply for consent orders, you will have to sign a statement of truth saying you have read and considered the sections of the Family Law Act (sections 60B, 60CA, 60CC, 61CA, 61D, 61DAA, 61DAB, 64B, 67Z and 67ZBA) that are listed later in this guide.

Words to use

‘Parental responsibility’ means all the duties, powers and authority parents have in relation to their children. Each parent has parental responsibility, subject to any court order which might be made. Examples of parental responsibility include decisions about a child’s schooling, education, religion, culture and other matters that significantly impact a child. If it is safe to do so, parents should consult each other about these decisions and make an effort to come to an agreement. Their child/ren’s best interests should be the most important consideration. If the parents have tried but have not been able to reach an agreement, even after family dispute resolution, then the decision may need to be made in court. Judges prefer for parents to make these decisions about their children.

Even if you both agree on the arrangements, the court will still look at your agreement from the point of view of ‘the best interests of the child/ren’ and will not accept it if it does not reflect this.

When you read the sections of the Family Law Act in this guide, you will notice it doesn’t talk about ‘custody’ and ‘access’ or ‘residence’ and ‘contact’. These are terms previously used in family law. Instead, it now talks about ‘making arrangements’ for children, including where the children will live (‘lives with’) and how often the children will see and talk (‘spends time and communicates with’) to the other parent (and grandparents and other extended family).

You may already have court orders that say the children ‘live’ or ‘reside with’ one parent and ‘have contact’ with the other parent. Any new orders will talk about how a child ‘lives with’ one parent and ‘spends time’ and ‘communicates’ with the other parent.

Use this more updated language in your agreement.

What should go into our written agreement?

You should consider and include these things in your agreement:

• Where will the child/ren live?
• Will there be a shared care arrangement where the child/ren live with each parent for part of the week or fortnight?
• Are there any religious, cultural, educational or other considerations you want to include in your agreement?

Try to think of things that may happen in the future and what arrangements you can make to help with those events. Ask “what if…” questions, for example:

• What if the children are sick?
• What if there is a pupil free day following the weekend the children are spending time with the other parent?
• What if the children want to attend swimming lessons, football, or dancing — Who will pay for it and who will take the children?
• Are there religious ceremonies they should attend? Who will take them?
• What if I want to take them on an overseas holiday?

The agreement you and the other parent reach must be in the best interests of the child/ren.

When you are trying to decide what is in the best interest of the child/ren, put yourself in their place and ask how they might cope with the arrangements you propose. Think about the following things:

• How far will they have to travel to school from each parent’s house?
• Will they be able to maintain their friendship groups and activities if they are living in two different households?
• Are they old enough to remember to move the things they might need, such as sports equipment, between the two households as needed?

Also, think about how you and the other parent will manage things like:

• before and after school care
• school holidays
• transport
• your employment or study obligations
• the financial costs of shared care.

Ask yourself “Is this agreement workable?” and “Is it in the child/ren’s best interests?”.

Consider the arrangements that appear ‘equal’ or ‘fair’ on paper may not be the best arrangements if they are too difficult for the children.

It is important your agreement is written in a way that is short and clear to not only you and the other parent, but to any other party who may need to refer to it (eg school, day care centres, Child Support Agency, Centrelink).

For more information, see the consent order examples.

Preparing your application for consent orders

This section tells you how to prepare the documents for the court when you are applying for consent orders.

If you feel unsure about either the steps involved to prepare your application, or any documents you are being asked to sign, you should get legal advice (see Can I get legal advice in this guide).

Understanding legal obligations

A consent order is a legal document you must follow, so it is important you realise what this means for you.

The Federal Circuit and Family Court of Australia has a factsheet called Parenting orders – obligations, consequences and who can help. To get a copy call the Federal Circuit and Family Court of Australia registry on 1300 352 000 or visit www.fcfcoa.gov.au

You should read this factsheet to learn more about:

• your legal obligations under an order
• consequences of breaching an order
• options to ensure parents follow a parenting order
• courses, programs and services in the community that can help parents understand their responsibilities and adjust to a parenting order.

If the court approves your consent orders, they will send you a copy of this factsheet and information about courses, programs and services in the community who can help with your sealed (stamped) orders. We recommend you read this factsheet before preparing your application.

What documents do I need to prepare my application?

You will need:

• Application for Consent Orders (do-it-yourself kit) — this kit includes information to help you complete the forms needed to apply for consent orders. The original signed consent orders must be included with the Application for Consent Orders.
• Application for Consent Orders — Proposed Orders Template — this template supplies the four forms you need to compile your consent orders into the document which receives the court stamp (seal) on them. The four forms are:

  1. Cover Sheet for the Consent Orders.

  2. First page for the Consent Orders.

  3. Format of Consent Orders (to follow first page of orders) — this is where you write the details of the orders you are seeking based on the agreement you have reached with your ex-partner (see consent order examples). Each order must be in a separate, numbered paragraph.

  4. Certification of Consent Orders — this document is signed by each parent to confirm the copy is a true and correct copy of the original.

• Notice of Child Abuse, Family Violence or Risk — the applicant must complete and sign the notice detailing any risk of abuse, neglect or family violence to you, your ex-partner or a child, and explain to the court how these orders deal with these circumstances.
• If you are applying to change a parenting order made under the Family Law Act 1975, you will need a sealed copy of the existing orders.
• If there is a family violence order or any other order relevant to your case that you will be including as part of your application, then you will also need a copy of that document.

Where do I get the forms and documents?

The Federal Circuit and Family Court of Australia registry can provide you with the documents listed above. You can also download these forms from the Federal Circuit and Family Court of Australia’s website www.fcfcoa.gov.au. Select ‘Forms and fees’ and scroll down to the subheading ‘Consent Orders’ to access these documents. If you have a computer you can save the forms and fill them out electronically. If you prefer, you can get the forms mailed to you by calling 1300 352 000.

What do I do when I have all the forms and documents?

You should prepare all the forms before you sign them.

Step 1. Complete the Application for consent orders

The Application for Consent Orders should be typed (you can download an interactive version from the Federal Circuit and Family Court of Australia’s website that allows you to type into relevant fields). If you cannot type your answers, write them clearly in blue or black pen.

The person who lodges the form is called the ‘applicant’, and the other person involved in the case is called the ‘respondent’.

Parts J and L of the application ask for a ‘Statement of truth’ from the applicant and respondent. Parts K and M of the application are a statement of independent legal advice, which must be signed by each person’s lawyer, if they used one.

This form has a section on consent orders about financial matters other than child maintenance, such as property settlement and spousal maintenance. Ignore the sections about these matters (parts H and I) if they do not apply to you.

If you already have a parenting order that was made in the same court registry, then you should already have a court file number that goes on the front of the consent orders.

Step 2. Prepare your draft consent orders

Your agreement is called ‘proposed consent orders’ when it is presented to the court. Use the forms from the Application for Consent Orders — Proposed Orders Template mentioned above.

The forms must be typed, not handwritten.

Step 3. Prepare copies of other relevant orders

If you already have parenting orders you want to change, make a copy of the existing orders.

If you are providing a family violence order in your application, then make a copy of this order.

If you or the other parent do not have a copy of any orders needed, you can request a copy from the court that made the order (a small fee may be charged).

Step 4. Sign all the documents and forms

Show your ex-partner the forms and documents to check they are willing to sign them. If wording still needs to be changed, then take the time to get it to the point where both people clearly understand the agreement and are willing to sign it.

When everyone agrees on the wording, then each person should sign and date in all the relevant places, which are:

• the ‘Statement of truth’ at part J for the applicant and part L for the respondent
• at the bottom of each page of the ‘Consent orders’
• on the ‘Certification of consent orders’
• the Notice of Child Abuse, Family Violence or Risk on page 1 at ‘Statement of truth’ (applicant only).

Make sure you have crossed all the relevant boxes that apply to your ‘Statement of truth’ before you sign.

Each person must sign the ‘Statement of truth’, the ‘Consent orders’ and the other forms all at once. It does not matter who signs first or if one person signs the documents on a different day, providing they have also signed them all at once.

If you need help completing the documents, you can get legal advice from Legal Aid Queensland or a community legal centre.

Step 5. File all the documents and forms

Lodging your application with the court is called ‘filing your application’.

The applicant must file the application and draft consent orders within 90 days of the first ‘Statement of truth’ being signed, otherwise the court will not be able to make the consent orders.

You can file the documents by post, in person at the registry or online. For more information on filing your application online via the Commonwealth Courts Portal, you can get a copy of the How do I apply for Consent Orders factsheet from the Federal Circuit and Family Court of Australia registry, from their website www.fcfcoa.gov.au or by calling 1300 352 000.

To file, you will need:

• Application for Consent Orders — original and two copies. The original signed Consent Orders is attached to the back of the Application for Consent Orders. All copies of these documents need to be certified as being true and correct copies of the original.
• Application for Consent Orders — Proposed Orders Template — original and three copies
• Notice of Child Abuse, Family Violence or Risk — original and two copies
• Application for exemption from fees — general or an Application for exemption from fees — financial hardship (if either applies to you).

The applicant and the respondent should also keep a complete copy of all the forms and documents filed with the court.

Step 6. Pay the court filing fee

The Federal Circuit and Family Court of Australia charges a fee to file an application for consent orders.

You can pay the fee by EFTPOS, debit card or credit card. If you are filing the application online, you will need to pay by credit card (visa/mastercard).

If you hold a government concession card, are in prison, are under 18 or can prove you’re experiencing financial hardship you may be eligible for an exemption from the filing fee. You will need to complete an Application for exemption from fees – financial hardship or Application for exemption from fees – general form depending on your circumstances. Both parents must meet the requirements for an exemption of court fees or the full filing fee applies.

For more information on filing fees, you can get a copy of the Court Fees brochure from the Federal Circuit and Family Court of Australia’s registry, from the Federal Circuit and Family Court of Australia’s website www.fcfcoa.gov.au or by calling 1300 352 000.

What happens after filing?

After you file your application for consent orders, a registrar at the court considers it. If the registrar thinks the order should be made, they sign the orders and send you sealed (stamped) copies. This process can take several weeks. If the registrar does not think the order should be made, they will send you a brief letter saying what you need to do. Your application may need to be considered in court by a judge.

Consent order examples

Here are some consent order examples which you can adapt to suit your own circumstances. The sample orders cover:

• parental responsibility
• telephone, email and skype communication
• arrangements for holidays and special occasions
• travel and transport costs
• child/ren’s activities
• medical and specific issues.

You may not need all of these orders. Use and change what is needed for your situation.

Parental responsibility orders

Joint decision making

• The mother and the father have equal shared parental responsibility for the major long-term issues relating to the children [name] born … and [name] born … (“the children”).

OR

Sole decision making

• The mother/father shall have sole parental responsibility for the major long-term issues relating to the children [name] born… (“children”)

Equal time orders

• That unless otherwise agreed between the parents, the children shall live with the mother and the father, on a week about basis, starting … 2017.
• When the children are living with the mother and the father, the children shall live with the mother in week 1, from after school Monday to 9am the following Monday and with the father, in week 2 from 9am Monday to after school the following Monday.
• When changeovers do not take place at school, the mother will collect the children from the father at the beginning of week 1 and the father will collect the children from the mother at the beginning of week 2.

Other time orders

• The children shall live with the mother/father

AND

• The children shall spend time and communicate with the mother/father as follows:

Each alternate weekend from ____________ to ____________ (day and time)

OR

Each ____________ (day of week) from ____________ to ____________ (time)

Telephone/email/skype communication

• The children will communicate with the parent with whom they are not living each Monday/Tuesday/Wednesday/Thursday/Friday/ Saturday/Sunday night/s by landline/mobile/email/skype, and the parent with whom they are living will arrange that communication.
• When the children are living with the mother or the father, the parent who has the children in their care shall facilitate any reasonable request by any of the children to communicate with the other parent.

Holidays

• The children will be able to spend four weeks holiday a year with each parent, with no more than a two-week block period at one time, and the parent who wants to spend holiday time with the children will provide the other parent with one month’s notice of the holiday period he/she wants to have with the children.

OR

• The children shall spend half of each school holiday period with each parent with the mother/father to have the first half in even numbered years and the second half in odd numbered years and the mother/father to have the opposite.

Special occasions

• On the children’s birthdays the parent who does not have the children in their care will spend from after school until … pm with the children if a school day or for four hours, at time agreed with the other parent/ from … to … if a weekend day.
• On Mother’s Day/Father’s Day, if the children are in the father’s/mother’s care, they will return to the mother’s/father’s care at 5pm the Saturday before Mother’s/ Father’s Day and remain in their care until 5pm Sunday.
• At Christmas, with the mother/father from … Christmas Eve to … Christmas Day and with the father/mother from … Christmas Day to … Boxing Day.

OR

• With the father/mother on Christmas Day in odd/even numbered years and the mother/father on Christmas Eve in even/odd numbered years.

Travel or transport costs

• The parents will share equally/ % split the air/train/bus fare for the children to spend time with the mother/father as outlined in order # .

OR

• The mother/father will pay the air/train/bus fare for the children to spend time with the mother/father as outlined in order # .

OR

• The father/mother will pay for the children’s transport costs and will, no later than 14 days before the day he/she is due to spend time with the children, send copies of travel tickets/documents, including details of the departure and return dates, flight/train/bus numbers to the other father/mother. If the transport is not paid for, before the 14 day period ends, the time with the children will be suspended until the tickets are paid for and given to the other parent.

Children’s activities

• The mother and father will ensure the children attend all extra curricular and social activities that occur when the children are in their care including but not limited to …

Medical

• The mother and the father are to notify the other as soon as possible of any medical emergency, serious injury or illness involving the children.
• If a child is taking prescribed medication, the parent who buys the child’s medication will provide the other parent with the medication and instructions for its use, when the child goes into the other parent’s care.

  OR

• Each parent will ensure they have a supply of the medication (name) taken by … and will follow the prescribing medical professional’s directions for administering the medication to the child.
• The parents will ensure … does not consume nuts/eggs/dairy products/gluten when he/she is in their care.
• Except in the case of an emergency, the parents agree the children will visit the … Medical Centre/Dr …

Specific issues

• The parents will communicate about issues concerning the children through a communication book that will travel between the parents with the children. The communication by the parents in the book will always relate only to the children and be polite and respectful.

  OR

• The parents will communicate about issues concerning the children through a passworded email account, set up and maintained solely for this purpose, and email communication will be polite and respectful.

  OR

• The parents shall primarily/only communicate about the children by way of text message/email.
• Neither parent is to use physical discipline on the children or allow someone else to do so.
• Neither parent will speak badly of the other to the children or where the children can hear, nor allow another person to do so.
• Neither parent will discuss any issues in dispute between the parents to the children or where the children can hear, nor allow another person to do so.
• Each parent will be primarily responsible for caring for the children while in their care.
• Neither parent will question the children about the other parent’s household, their family or friends.
• If either parent changes their contact telephone number or address they must notify the other within 24 hours of that change.
• To be given to the children’s school/day care and any medical professional treating the children. The school/day care or medical professional is authorised to speak with either parent about the children’s health, education, development and welfare.
• The children are not to be left unsupervised in the care of …

Legal words and phrases explained

Applicant — the person who asks the court to do something by lodging an application (in children’s matters, usually a parent). They start the case in court.

Child — a person under 18. An unborn child is not considered to be a child for the purpose of the Family Law Act.

Child’s best interests — any order involving children must be based on what is in the child’s best interests and may not necessarily be the parents’ wishes. All circumstances affecting the child are taken into account. (See sections 60CA and 60CC of the Family Law Act in this guide).

Communicating with — telephone/video calls, letters, emails, Skype etc — any ‘contact’ that is not face-to-face.

Consent orders — when you and the other parent agree about arrangements for your children, you can apply to the court for legal court orders to be made by agreement. These are called consent orders.

Shared parental responsibility — where parents equally share responsibility for making joint decisions about major long-term issues that affect their children, such as schooling and health.

Equal time — that the child/ren spend an equal amount of time with each parent. This might be, for example, alternating weeks in each parent’s household.

Family counselling — a process to help people deal with issues about themselves and their children when parents separate or are arguing.

Family dispute resolution — a process to resolve disputes or disagreements (ie mediation) in family law matters to help people reach agreement about parenting arrangements. A family dispute resolution practitioner helps people to reach agreement in a non-threatening process involving discussion and negotiation.

Family dispute resolution practitioner — a person with professional training and approved by law, who provides dispute resolution services (mediation) to people who disagree about parenting arrangements and other family law issues.

Family relationship centre — centres set up and paid for by the government that provide counselling and dispute resolution services for people who don’t agree about relationship issues and parenting arrangements. Family relationship centres offer information and advice to families at all stages of their life, including people starting relationships, those wanting to make their relationships stronger, those having relationship difficulties and those affected when families separate.

Family violence — behaviour, either actual or threatened, towards a family member or their property that makes anyone in the family feel unsafe (although the fear or apprehension must be reasonable). Violence covers a broad range of controlling behaviours and includes physical, verbal, emotional, psychological, sexual, financial or social abuse. Examples include cutting off a person from seeing friends and relatives or controlling the person’s access to money. As well as affecting a person’s safety, it may mean a person cannot properly negotiate or participate in court matters.

Family violence order — an order for a set period of time (including a temporary or interim order) made under a state or territory law to protect a person from family violence. In Queensland these are called domestic violence orders.

Hearing — where evidence is considered from all people involved in the matter and a decision is made by a judge.

Live with — where and with whom the child lives. A child may live at more than one place, or may live with more than one parent. For example, a child may live with one parent for half of the week and the other parent for the other half. This used to be called ‘residence’ or ‘custody’.

Major long-term issues — issues that affect the child’s long-term care, welfare and development, including the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. A parent deciding to have a relationship with a new partner is not a major long-term issue in itself, but if this decision means relocating and significantly affecting time spent with the other parent, this is a major long-term issue.

Mediation — a way to settle arguments without going to court that involves an independent person helping parents or other carers to reach agreement (see ‘family dispute resolution’).

Order — an order is made by a court. It requires a person to do something. Orders may be final or interim (temporary until a further order is made). You must obey a court order.

Parent — a person who is legally the parent of a child either biologically, by adoption, by means of artificial conception procedures or by order of a court. In some cases the kinship obligations of Aboriginal and Torres Strait Islander culture are considered.

Parenting orders — court orders setting out arrangements for children. Orders as to who the children will live with are usually made in favour of parents, but are available to other people significant in a child’s life, such as grandparents (see ‘consent orders’).

Parenting plan — a parenting plan is a voluntary written agreement, signed and dated by the people involved that deals with at least one sort of arrangement for the children. 

Relative — a person directly related to the child, for example siblings, grandparents, aunts or uncles. In some cases the kinship obligations of Aboriginal and Torres Strait Islander culture are considered.

Respondent — a person against whom an application is brought to the court (in children’s matters, usually the other parent). They respond to the case started by the applicant.

Sealed orders — orders that have been approved by the court and have the court stamp (seal) on them, making them official court documents.

Spending time with — the time the child spends with the parent (or grandparents or other relatives) they don’t live with. This used to be called ‘contact’ or ‘access’.

Substantial and significant time — the amount of time a child spends with a parent they do not live with. It includes time spent during the day and overnight, weekends, time during the week, holidays, special occasions (eg birthdays, weddings). It also includes time allowing a parent to be involved in the child’s daily routine.

Family Law Act 1975 relevant sections

The Family Law Act

• Section 60B
• Section 60CA
• Section 60CC
• Section 60CH
• Section 61CA
• Section 61D
• Section 61DAA
• Section 61DAB
• Section 64B
• Section 67Z
• Section 67ZBA

The following pages are copies of the sections of the Family Law Act listed above. The first six are the sections you and the other person need to read and consider before you can truthfully swear your affidavit for consent orders. The last section is about parenting plans.

Family Law Act 1975 — Section 60B

The objects of this Part are:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2023, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Family Law Act 1975 — Section 60CA

Child’s best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Family Law Act 1975 — Section 60CC

How a court determines what is in a child’s best interests

Determining child’s best interests

(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).

General considerations

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child’s family.

Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture

 (3) For the purposes of paragraph (1)(b), the court must consider the following matters:

(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(iii) to develop a positive appreciation of that culture; and

 (b) the likely impact any proposed parenting order under this Part will have on that right.

Consent orders

(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Family Law Act 1975 — Section 60CH

Informing court of care arrangements under child welfare laws

(1) If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.

(2) If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.

(3) Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).

Family Law Act 1975 — Section 60CI

Informing court of notifications to, and investigations by, prescribed State or Territory agencies

(1) If:

(a) a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

(i) a notification or report (however described) to a prescribed State or Territory agency; or

(ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

(b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse; that party must inform the court of the matter.

(2) If:

(a) a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

(i) a notification or report (however described) to a prescribed State or Territory agency; or

(ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

(b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse; that person may inform the court of the matter.

(3) Failure to inform the court of the matter does not affect the validity of any order made by the court.

(4) In this section:

“prescribed State or Territory agency” means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.

Family Law Act 1975 — Section 61CA

Consultation between parents on major long‑term issues

If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:

 (a) to consult each other about major long‑term issues in relation to the child; and

 (b) in doing so, to have regard to the best interests of the child as the paramount consideration.

Family Law Act 1975 — Section 61DAA

Effect of parenting order that provides for joint decision‑making about major long‑term issues

(1) If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:

 (a) to consult each other person in relation to each such decision; and

 (b) to make a genuine effort to come to a joint decision.

(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

Family Law Act 1975 — Section 61DAB

No need to consult on issues that are not major long‑term issues

 (1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

 (a) has parental responsibility for the child; or

 (b) shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major long‑term issues.

Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order.

Family Law Act 1975 — Section 64B

Meaning of parenting order and related terms

(1) A parenting order is:

(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

However, a declaration or order under Subdivision E of Division 12 is not a parenting order.

(2) A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child;

(d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e) the communication a child is to have with another person or other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order;

(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long term issues in relation to the child.

Note 1: See also subsection 61D(3) and section 61DAA in relation to parenting orders dealing with allocation of responsibility for making decisions about major long‑term issues.

Note 2: For the definition of major long‑term issues, see subsection 4(1).

(4) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

(a) letter; and

(b) telephone, email or any other electronic means.

(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:

(a) resolving any dispute about the terms or operation of the order; or

(b) reaching agreement about changes to be made to the order.

(5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order.

(6) For the purposes of this Act:

(a) a parenting order that provides that a child is to live with a person is made in favour of that person; and

(b) a parenting order that provides that a child is to spend time with a person is made in favour of that person; and

(c) a parenting order that provides that a child is to have communication with a person is made in favour of that person; and

(d) a parenting order that:

(i) allocates parental responsibility for a child to a person; or

(ii) provides that a person is to share parental responsibility for a child with another person; is made in favour of that person.

(9) In this section:

“this Act” includes:

(a) the standard Rules of Court; and

(b) the related Federal Circuit Court Rules.

Family Law Act 1975 — Section 67Z

Where interested person makes allegation of child abuse

(1) This section applies if an interested person in proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.

(2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

(3) If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.

(4) In this section:

“interested person” in proceedings under this Act, means:

(a) a party to the proceedings; or

(b) an independent children’s lawyer who represents the interests of a child in the proceedings; or

(c) any other person prescribed by the regulations for the purposes of this paragraph.

“prescribed form” means the form prescribed by the applicable Rules of Court.

Family Law Act 1975 — Section 67ZBA

Where interested person makes allegation of family violence

(1) This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:

(a) there has been family violence by one of the parties to the proceedings; or

(b) there is a risk of family violence by one of the parties to the proceedings.

(2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b).

(3) If the alleged family violence (or risk of family violence) is abuse of a child (or a risk of abuse of a child):

(a) the interested person making the allegation must either file and serve a notice under subsection (2) of this section or under subsection 67Z(2) (but does not have to file and serve a notice under both those subsections); and

(b) if the notice is filed under subsection (2) of this section, the Registry Manager must deal with the notice as if it had been filed under subsection 67Z(2).

Note: If an allegation of abuse of a child (or a risk of abuse of a child) relates to a person who is not a party to the proceedings, the notice must be filed in the court and served on the person in accordance with subsection 67Z(2).

(4) In this section:

“interested person” in proceedings for an order under this Part in relation to a child, means:

(a) a party to the proceedings; or

(b) an independent children’s lawyer who represents the interests of the child in the proceedings; or

(c) any other person prescribed by the regulations for the purposes of this paragraph.

“prescribed form” means the form prescribed by the applicable Rules of Court.

Last updated 13 June 2024