What an order can deal with
The court says a parenting order can cover any one or more of these:
- “who the child will live with”
- “how much time the child will spend with each parent, and/or with other people, such as grandparents”
- “the allocation of responsibility for making decisions about major long-term issues in relation to the child”
- “how the child will communicate with a parent they do not live with, or other people”
- “relocation of the child’s residence (where the child lives)”
- “whether, and in what circumstances, the child may travel, and”
- “any aspect of the care, welfare or development of the child.”
Federal Circuit and Family Court of Australia, Children: we cannot agree, reproduced unaltered under the court’s CC BY-ND 3.0 licence.
Orders are not only for parents. The court says any person concerned for a child’s welfare, including a grandparent, can apply, although applying does not mean the orders asked for will be made. Whatever is asked for, the court must treat the child’s best interests as its paramount consideration: what the court must consider sets out how.
Three kinds of order
| Kind | What it is | Worth knowing |
|---|---|---|
| Final orders | Orders that bring the matter to a close. | Once final orders are made, including by consent, they can be changed only in limited circumstances. |
| Interlocutory orders | Usually made in urgent cases, lasting until other orders or final orders are made. | Generally you cannot apply for them unless you have also applied for final orders. |
| Consent orders | Orders both parties agree on, which can be made without going to court. | They have the same legal effect as orders made by a judicial officer after a hearing. |
For consent orders, the parties file an Application for consent orders and a copy of the proposed orders; the court says you should get legal advice before entering into them. Parenting and financial orders can be sought in the same application.
Orders about decisions, since 6 May 2024
The way orders describe decision-making changed when the Family Law Amendment Act 2023 took effect on 6 May 2024. The Act no longer refers to “equal shared parental responsibility”, so the department says parents should not ask for orders in those terms, except in matters where the final hearing began before that date.
Its FAQ describes the choices instead:
Joint decision-making
Each person must consult the other on each decision about a major long-term issue and make a genuine effort to come to a joint decision (section 61DAA).
Sole decision-making
One parent makes decisions on some or all major long-term issues, where that is in the child’s best interests.
Orders can also mix the two, for example joint decisions on health only and sole decisions on everything else, or make no orders about decisions at all. With no orders, each parent keeps parental responsibility and is encouraged, but not required, to consult the other.
Older orders are not rewritten by the new law. The department says existing parenting orders are not automatically changed, and people with them should keep following them.
Asking the court for orders
The court calls an Initiating Application for parenting orders a last resort, after genuine efforts to resolve the matter have failed. The usual order of things, from its pages:
Try to resolve it first
Before applying, you must make a genuine effort to resolve the dispute and follow the pre-action procedures, which include attempting family dispute resolution. They need not be followed if it is not safe or the application is urgent. The details, including exemptions, are on the court’s we cannot agree page.
Prepare the documents
The court’s list of what to file when you start includes an Initiating application, a Notice of child abuse, family violence or risk, a family dispute resolution certificate unless you are exempt, and a Genuine steps certificate. A Parenting questionnaire is needed too, unless you file an affidavit instead, and if you also want interlocutory orders you need an affidavit supporting them.
Pay the fee, or ask about a reduction
Fees depend on the orders sought and are set by federal regulations, not the court. Some people, such as holders of certain concession cards or people in financial hardship, may get a reduced fee or an exemption. The current amounts are on the court’s fees page.
File it
Applications should be eFiled through the Commonwealth Courts Portal. In Brisbane, people who file seeking orders about children are invited to complete the court’s Lighthouse risk screen.
Serve the other party
After filing, the documents must be served on the other party; the court publishes a service kit.
You do not have to have a lawyer, but the court says family law is complex and legal advice helps you understand your rights and responsibilities. Free places to start are in help for parents in Queensland. If you have a family violence order, you must tell the court about it.
Living with an order
Each person affected by a parenting order must do everything it says, including taking all reasonable steps to make it work. The court gives an example: if the order says a child spends time with the other parent, you must make the child available and positively encourage them to go, even if the child says they do not want to.
An order is breached (the court’s word is “contravened”) when someone it applies to intentionally fails to comply or makes no reasonable attempt to. A court will consider whether there was a reasonable excuse, for example a reasonable belief that it was necessary to protect someone’s health and safety, for no longer than was needed.
Contravention cases are “quasi-criminal”, the court says, and if allegations are proven the penalties can include a fine, a bond or imprisonment. Anyone served with an Application – Contravention should get legal advice as soon as possible.
Changing a final order
A court may only look again at a final parenting order that is in force if two tests are met: circumstances have changed significantly since the order was made, and reconsidering the order would be in the child’s best interests. If those tests are not met, the department says the orders cannot be changed without the agreement of the other parent or party.
Where both agree, they can sign draft consent orders for the court to make, or enter into a parenting plan, as parenting plans explains.
Next guide What the court must consider: the child’s best interests