Parenting Orders in Australia: A Complete Guide for Separating Parents

Direct Answer

A parenting order in Australia is a Part VII order of the Federal Circuit and Family Court of Australia that deals with arrangements for a child. It can be made by consent, or after contested litigation. The Court's paramount consideration is the best interests of the child, assessed against the six factors in section 60CC(2) — safety first — with an additional consideration for Aboriginal and Torres Strait Islander children under section 60CC(2A). There is no presumption of equal shared parental responsibility and no obligation to consider equal or substantial and significant time. Family Dispute Resolution is (subject to exceptions) a precondition to filing. Orders can regulate residence, time, communication, parental responsibility, specific long-term decisions, overseas travel and any other matter concerning the care, welfare or development of the child. Orders are enforceable by contravention proceedings under Division 13A. Variation of a final order requires a significant change of circumstances under the rule in Rice v Asplund.

Contents

• The current legal framework (post 6 May 2024)
• Comparison of parenting arrangements
• What parenting orders can cover
• Best interests under section 60CC
• The application process
• Evidence checklist
• Drafting-checklist for parenting orders
• Parenting plans and consent orders
• Parental responsibility
• Family Dispute Resolution and exceptions
• Family violence, safety and risk
• Children's views
• Interim and urgent orders
• Evidence and expert material
• Independent Children's Lawyer
• Family reports
• Relocation
• Recovery and location orders
• Overseas travel and the Family Law Watchlist
• Grandparents and other significant persons
• Compliance, contravention and enforcement
• Variation of existing orders
• Jurisdiction and the court structure
• Practical action plan
• Worked examples
• Common mistakes
• How Parke Lawyers can help
• Frequently asked questions

The Current Legal Framework (Post 6 May 2024)

The Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024 and reshaped the parenting provisions of Part VII of the Family Law Act 1975 (Cth). The change was structural, not cosmetic. Three features of the pre-6 May 2024 framework have been removed or fundamentally recast.

First, the presumption in favour of equal shared parental responsibility in the former section 61DA has been repealed. Parental responsibility for major long-term decisions is now allocated by the Court, on a case-by-case basis, by reference to the best interests of the child. The Court may allocate joint decision-making for all major long-term issues, joint decision-making for some, or sole decision-making to one parent for particular issues or generally. Where joint decision-making is ordered, section 65DAC (as amended) requires the decision-makers to consult and make a genuine effort to reach a joint decision on each major long-term issue as it arises.

Second, the obligation in the former section 65DAA to consider equal time or 'substantial and significant time' where the presumption of equal shared parental responsibility applied has been repealed. There is no default time allocation. Time arrangements are decided by reference to the best interests of the child. Older orders, older commentary and older calculators that treat equal or substantial and significant time as a starting point no longer reflect Australian law.

Third, the best-interests factors in section 60CC have been simplified. The former list of two primary and thirteen additional considerations, with a statutory obligation to give greater weight to protection from harm, has been replaced with a single list of six considerations. Safety is the leading factor. The remaining factors are the child's views, the child's developmental, psychological, emotional and cultural needs, the capacity of each proposed carer to provide for those needs, the benefit of a relationship with parents and other significant persons where safe, and anything else relevant. A dedicated additional consideration in section 60CC(2A) applies for Aboriginal and Torres Strait Islander children.

The reforms also introduced changes elsewhere in Part VII: a statutory obligation on Independent Children's Lawyers to meet with the child (subject to defined exceptions), a restructured contravention regime under Division 13A that emphasises graduated responses, and reforms to information-sharing between family courts, child-protection agencies and police. The overall effect is to reorient the framework around the child, around safety, and away from the presumption-driven structure that had guided the previous framework since 2006.

Comparison of Parenting Arrangements

Separated parents in Australia have four broad options for regulating parenting arrangements. The table below summarises the practical differences.

What Parenting Orders Can Cover

A parenting order can regulate any matter concerning the care, welfare or development of a child. The subject-matter categories are set out in section 64B.

Best Interests under Section 60CC

The paramount consideration when making a parenting order is the best interests of the child (s 60CA). Section 60CC (as substituted from 6 May 2024) is the structured framework by which the Court makes that assessment.

The former statutory ranking of considerations, the former primary/additional distinction and the former obligation to give greater weight to protection from harm have been removed. In practice, safety continues to operate as the leading consideration — the drafting of section 60CC(2) places it first and the surrounding reforms reinforce that emphasis — but the balance of the other considerations is now more fluid, more case-specific and less mechanical. For a deeper analysis of how the Court assesses a child's best interests under the current framework, see our specialist guide.

The Application Process

The application pathway for parenting orders is structured around pre-action procedures and mandatory dispute resolution, followed by staged court events.

Evidence Checklist

The evidence needed to prepare a parenting case is almost always broader than parents expect. The following checklist is a working list rather than an exhaustive statement.

• The parties' own affidavits — a chronological, factual account of the relationship, the separation, the parenting to date and the proposal
• Independent lay witness affidavits (family, friends, teachers, coaches) directed to specific, observed facts
• School records — attendance, incident reports, welfare and counselling records
• Medical records — the child's general practitioner, treating specialists, paediatrician, mental-health clinicians
• Child-care records
• Police records — narratives, LEAP printouts (Victoria), incident reports
• Family Violence Intervention Order material — applications, affidavits, orders, breach records
• Contemporaneous communications — text, email, messaging, co-parenting apps, voicemail
• Photographs, video and audio — dated and sourced
• Family Report or Child Impact Report
• Expert reports — psychiatric, psychological, addiction, developmental, cultural
• Financial evidence — where financial capacity, housing, geographic or work-pattern issues are in play
• Housing and household evidence — accommodation for the child, sleeping arrangements, safety features
• Social-media evidence — public posts and (with proper permission) private posts
• Child-protection agency records — subject to release protocols
• Any prior court orders — parenting, family violence, child protection or migration

Order-Drafting Checklist

The single most common source of post-order dispute is poor drafting. A parenting order must be capable of operating without further agreement, without reinterpretation, and without any ambiguity that a hostile reader can exploit. The following checklist addresses the drafting elements that most often fail in practice.

• Named parties and children: full legal names, dates of birth for children, addresses for service
• Parental responsibility clause: allocation for major long-term issues, either joint or sole; if joint, mechanism for disagreement
• Live-with clause: primary residence, or defined week-about pattern, or a specified rotation
• Spend-time clause: days, times, start and end points, changeover location, transport responsibility
• Communication clause: means, frequency, duration, initiation, and boundaries on times
• Holiday and special-day schedule: school holidays, public holidays, birthdays (child and parent), Mother's/Father's Day, cultural or religious days
• Overseas travel clause: conditions, notice, itinerary, Hague Convention countries only, bonds, passport arrangements
• Interstate travel clause: notice, itinerary
• Change of school, name or religion: mechanism if joint responsibility
• Medical decisions: mechanism for major decisions; emergency treatment override
• Information sharing: both parents to be recorded with school and medical providers; both parents entitled to communicate directly with those providers
• Third-party attendance: restrictions on attendance of specified persons at changeover, at school events, at the child's residence
• Communication protocol between parents: written channel, tone, subject-matter limits
• Family violence measures: supervised changeover, exclusion conditions, no-contact save through nominated channel
• Review mechanism: automatic review upon defined events (school entry, adolescence, relocation)
• Recitals and background: concise; used only where necessary for interpretation
• Enforceability: every obligation drafted so a Court could grant a contravention finding without further evidence

Parenting Plans and Consent Orders

A parenting plan is a written, signed and dated agreement between the parents about arrangements for the children. It is defined in section 63C and can cover any of the subject-matters that a parenting order can cover. It is not enforceable as a court order but it is admissible in later proceedings as evidence of what the parents intended, and it can vary an existing parenting order to the extent of any inconsistency, subject to section 64D and to the requirement that it be entered into free from threat, duress or coercion. Parenting plans are useful for cooperative parents who want a flexible, evolving framework and do not need enforceability. A good parenting plan reads like a workable set of arrangements; a poor parenting plan reads like a set of aspirations.

Consent orders are parenting orders made by the Court without a contested hearing. The parents file an Application for Consent Orders together with the proposed orders. A Registrar reviews the material and, if satisfied that the proposed orders are in the best interests of the child, makes the orders. Consent orders have the full force of court orders — they are enforceable by contravention application, they bind third parties in the same way as contested orders and they can only be varied by fresh order or by subsequent parenting plan within the s 64D framework.

For most separating parents who agree, consent orders are the appropriate mechanism. They are cheap, quick and provide the certainty that a parenting plan cannot. Where the parents' relationship is highly cooperative and both are confident of ongoing flexibility, a parenting plan can be sufficient — but the practical experience of family-law practice is that highly cooperative parents rarely become less cooperative in the direction of formality, and informal arrangements often collapse under the pressure of new relationships, new employment, new schools or new stresses.

Parental Responsibility

Parental responsibility, defined in section 61B, is 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. It covers long-term decisions about the child's education, religion, culture, name, health and (as part of the residence framework) where the child lives. It is distinct from time — a parent may spend little time with a child and retain joint parental responsibility, or may spend substantial time while another person holds sole parental responsibility.

Before 6 May 2024 the Act presumed equal shared parental responsibility save where the presumption was rebutted by evidence of family violence or child abuse. That presumption has been repealed. Parental responsibility is now allocated by the Court, or by the parents' agreement recorded in consent orders, on a case-by-case basis by reference to the best interests of the child. The available allocations include: joint parental responsibility for all major long-term issues; joint responsibility for some issues and sole responsibility for others; sole parental responsibility to one parent generally; sole parental responsibility to one parent for specified issues; and parental responsibility to a person other than a parent (typically a grandparent or long-term carer).

Where the Court orders joint decision-making for major long-term issues, section 65DAC (as amended) requires the decision-makers to consult and to make a genuine effort to reach a joint decision. Consent orders should specify a workable mechanism for resolving disagreement — mediation, review by an agreed professional, or referral back to the Court — because the design assumption that joint decision- makers will always agree is unsafe.

Family Dispute Resolution and Exceptions

Family Dispute Resolution (FDR) is, with limited exceptions, a precondition to filing a parenting application. Section 60I requires the applicant to make a genuine effort to resolve the dispute through an accredited FDR practitioner before commencing proceedings. The practitioner issues a section 60I certificate that must be filed with the Initiating Application. FDR discussions are 'without prejudice' and confidential; they cannot be adduced in evidence. The purpose of FDR is not merely to filter out avoidable litigation but to allow the parents to construct arrangements that reflect their own knowledge of the child.

The exceptions in section 60I(9) are narrow. Consent orders do not require FDR — the very fact of consent makes the process redundant. Urgency, allegations or risk of family violence or child abuse, incapacity to participate effectively, geographic impossibility and certain contravention or variation applications are all recognised exceptions. Each exception requires evidence: an affidavit setting out the factual basis must accompany the Initiating Application. A bare assertion is not enough. Where an exception is wrongly asserted, the Court can decline to hear the application and can order costs.

The choice of FDR provider matters. Court-connected services (Family Relationship Centres) are free or low-cost and appropriate for many disputes. Private FDR — often 'Legally Assisted Dispute Resolution' with both parties represented — is more expensive but is usually more productive in higher-conflict matters, particularly where a settlement would need to be immediately reduced to consent orders. Choice of provider is a strategic decision and warrants advice.

Family Violence, Safety and Risk

Family violence is a substantive consideration in parenting matters, not a procedural aside. The statutory definition in section 4AB is broad: it captures violent, threatening or other behaviour by a person that coerces or controls a family member, or that causes the family member to be fearful. Examples in section 4AB(2) include physical assault, sexual assault, threats, stalking, repeated derogatory taunts, intentional damage to property, harm or threats of harm to animals, unreasonably denying financial autonomy, unreasonably withholding financial support, preventing family or cultural contact and unlawful deprivation of liberty. A child is exposed to family violence when the child sees, hears or otherwise experiences its effects (s 4AB(3)).

Where family violence is alleged or where the Court considers there is a risk of family violence, the case is reshaped: the section 60I FDR exception applies; a Notice of Child Abuse, Family Violence or Risk (Form 4A) must be filed and served with the Initiating Application, Response or Reply; the Court must consider whether an ICL should be appointed; information-sharing obligations engage state child- protection and police agencies; and section 60CC(2)(a) — the safety consideration — is the leading factor in the best-interests assessment.

The Court has a broad suite of protective orders available. Time can be supervised, suspended or prohibited. Communication can be limited, monitored or excluded. Changeover can occur through a supervised contact service, at a police station or at a neutral third-party premises. Injunctive orders under section 68B can restrain the parties' conduct and prohibit attendance at defined locations. A Victorian Family Violence Intervention Order in force is admissible and must be considered when framing parenting orders — the two orders should operate together rather than in conflict, and drafting must expressly accommodate the intervention- order terms. Practical detail is set out in our Victorian guide on family violence intervention orders in Victoria, and how family violence affects parenting orders more generally under Part VII.

Children's Views

The child's views are a mandatory consideration under section 60CC(2)(b), but they are not determinative. The weight given depends on the child's age, maturity, understanding, and the context in which the views were expressed — spontaneously, in response to a professional interviewer, in response to a parent's questioning or in an environment of coaching or alienation. Children do not give evidence and do not attend court in the ordinary case. Their views are communicated through a family report writer, a Child Impact Report, the Independent Children's Lawyer or (rarely) a judicial interview.

The Court is alert to the risk that a child's stated preference reflects the influence of a parent rather than the child's independent view. Where alienation dynamics are alleged, expert evidence is often decisive: a specialist family report or a discrete alienation report by a court-approved expert can identify indicators of coaching, enmeshment and rejection that carry more weight than the parents' own accounts. The child's views are a factor; they are neither the case nor the reason to conclude the case.

Interim and Urgent Orders

Interim parenting orders are made pending final hearing to regulate arrangements in the intervening period. They are made on affidavit evidence, without cross-examination and without findings on contested facts. The Court's approach is risk-management: the arrangement adopted for the interim period is the arrangement that best protects the child from unacceptable risk while preserving the potential for a range of final outcomes. The status quo — the arrangements actually operating at the date of the application — is influential, especially where the arrangements have been in place for a meaningful period without demonstrated harm.

Genuinely urgent applications can be listed within days. The Federal Circuit and Family Court of Australia maintains duty registrar capacity for urgent parenting matters. Situations that ordinarily justify urgent listing include: threatened international removal of a child; unilateral removal of a child from an agreed residence; imminent unsupervised contact with a demonstrated risk; urgent medical decisions; imminent breakdown of accommodation; and disclosure of abuse. Urgent applications are supported by concise, focused affidavit evidence identifying the specific risk and the specific orders sought. Manufactured urgency damages credibility and can attract costs.

Evidence and Expert Material

Parenting cases are decided on evidence, not on positions. The two most influential sources of evidence in a contested parenting case are the parties' affidavits and the family report. Well- drafted affidavits are chronological, factual, dated and confined to the matters in issue. They avoid argument, generality and characterisation ('always', 'never', 'clearly abusive', 'obviously'). They attach contemporaneous documents rather than paraphrasing them. They deal with the actual allegations in the other party's material rather than with a competing narrative.

Expert evidence takes several forms. A family report, prepared by a court-appointed family consultant, is standard in contested matters and highly influential. A Child Impact Report is a shorter, earlier-stage report used to inform interim decisions and to guide case management. A single expert report — psychiatric, psychological, addiction, developmental — is used where an issue turns on professional opinion. A report on capacity, on alienation, or on cultural connection can be commissioned where the issue warrants it. Expert reports are opinion evidence: the Court is entitled to give them weight, to prefer one expert over another, or (rarely) to reject expert evidence entirely.

Third-party evidence is often decisive. School reports and welfare records, medical files, child- care observations, police narratives, family-violence intervention material and child-protection notifications can be produced under subpoena and, subject to release and use conditions, become admissible. Contemporaneous electronic communications — text, email, messaging, co-parenting-app logs — are frequently the most persuasive material in the file because they are dated, unedited and speak for themselves.

Independent Children's Lawyer

An Independent Children's Lawyer (ICL) is a lawyer appointed under section 68L to represent the best interests of the child, independently of both parents. The ICL is not the child's lawyer in the ordinary sense: the ICL does not take instructions from the child. The ICL forms and advances an independent view of the arrangements that best serve the child, based on the whole of the material available in the proceedings.

Since 6 May 2024 the ICL has a statutory obligation, subject to defined exceptions (age, safety, refusal), to meet with the child and to provide the child with an opportunity to express any views. The ICL reviews the court file, participates in interlocutory hearings, cross-examines witnesses at trial, engages with the family report writer, arranges expert evidence where necessary and makes final submissions on the appropriate orders. ICL appointments are common in cases involving allegations of family violence or child abuse, entrenched conflict, mental illness, addiction, cultural or religious complexity, high-conflict relocation and allegations of alienation. Legal Aid ordinarily funds ICL work subject to means and merit; parties may be ordered to contribute where they have capacity. For the full treatment of appointment, statutory duties, the post–6 May 2024 meeting requirement, evidence, confidentiality and complaints see our specialist guide to the role of an Independent Children’s Lawyer.

Family Reports

The family report is the single most influential piece of expert material in most contested parenting cases. It is prepared by a court-appointed family consultant — a psychologist or social worker with family-law training — following interviews and observations of the children, the parents, new partners and (as appropriate) extended family and significant others. The report describes the children's presentation, the family dynamics and the writer's professional opinion on arrangements that would best meet the children's needs.

Family reports are not binding. The Court weighs the report against the whole of the evidence and is free to depart from the writer's recommendations where the evidence justifies departure. In practice, departure is uncommon; where the report writer's findings are properly reasoned and the underlying interviews are properly documented, the report is usually adopted or closely followed. Cross- examination of the report writer at trial is available in appropriate cases and warrants careful preparation. Parties should not coach children before report-writer interviews; the practice is easily detected, damages the coaching party's credibility and undermines the reliability of the child's expressed views.

Relocation

'Relocation' in family-law usage means a proposed move that would materially affect the ability of the other parent (or, in some cases, significant others) to spend time and communicate with the child. Interstate moves, moves to remote or regional areas, and even significant intrastate moves may qualify. There is no separate 'relocation' test — relocation cases are decided under the ordinary best-interests framework in section 60CC. In practice, the Court examines the reasons for the move (employment, family support, safety, financial capacity, new relationship), the child's current relationships, the practicality and cost of continued time and communication if the move proceeds, the impact on the moving parent if the move is refused, the impact on the non-moving parent if the move is permitted, the child's own needs and views, and any safety considerations.

Relocation cases are among the most difficult and unpredictable parenting matters. Blanket 'no move' orders are unusual. Conditional orders — permitting the move on specified time, communication and travel arrangements, or refusing the move for a defined period tied to a milestone in the child's life — are common. A unilateral move made without consent or court order can be reversed by a recovery order and can influence the ultimate best-interests assessment. Advice should be obtained before announcing an intended move, before packing, and certainly before moving. For a dedicated treatment of relocating or moving interstate with a child after separation, see our specialist relocation guide.

Recovery and Location Orders

A recovery order under section 67Q authorises the Australian Federal Police (and, in defined cases, state or territory police) to take active steps to find, recover and return a child to a person with entitlement to the child's care under a parenting order or under section 65C. Recovery orders are used where a child has been retained by the other parent contrary to orders, has been taken from an agreed residence, or has failed to be returned. They are commonly urgent, are supported by affidavit evidence of the entitlement and the removal or retention, and can include ancillary orders directing surrender of passports, restraining further removal and requiring disclosure of location. Recovery orders are enforced with police support and, in serious cases, with immediate physical action. See our specialist guide to recovery orders when a child is not returned for the detailed urgent-application framework.

A location order under sections 67J–67N requires a specified person or agency to disclose to the Court information about a child's location. Location orders are commonly directed to Services Australia, the Department of Home Affairs, state education departments, banks and telecommunications carriers. They are used where a parent has moved without disclosure or a child has been retained in unknown circumstances. Information disclosed under a location order is used by the Court and by the applicant's lawyers for the purposes of the proceedings; broader dissemination is prohibited.

Overseas Travel and the Family Law Watchlist

Overseas travel with a child requires the written consent of every person with parental responsibility or a court order permitting the travel. Once parenting proceedings are on foot, section 65Y makes it an offence for a person to take a child out of Australia contrary to, or in the absence of, an order. The offence is serious: it carries imprisonment on conviction. Parents commonly underestimate its reach; travel that would otherwise be uncontroversial can be an offence if made without consent or order during proceedings.

The Family Law Watchlist (formerly the Airport Watchlist) is a national alert list maintained by the Australian Federal Police. When a child is on the Watchlist, the Australian Border Force will not permit the child to leave Australia. A child is placed on the Watchlist by application to the Federal Circuit and Family Court of Australia, usually with orders restraining departure and requiring surrender of passports. Watchlist orders are commonly granted at short notice where there is a genuine risk of international removal. Removal from the Watchlist requires a further court order. Where limited overseas travel is appropriate, the Court can permit travel only to specified Hague Convention countries with a bond in place, with confirmed accommodation and travel details, and with defined return arrangements.

Grandparents and Other Significant Persons

Grandparents are expressly identified in section 65C as persons who may apply for a parenting order. The best-interests framework specifically recognises the benefit to the child of a relationship with grandparents and other significant persons where it is safe to do so. Grandparent applications commonly arise where the parents have separated and one parent is restricting contact, where a parent has died, where a parent is incapacitated by mental illness, addiction or family violence, or where the grandparents have been the child's primary carers.

Success turns on the demonstrated relationship, the benefit to the child of preserving or restoring it, the parent's position and reasons and the practicability of the proposed arrangements. Applications by other significant persons — aunts, uncles, step-parents, long-term family friends, and (in appropriate cases) former same-sex partners — proceed on the same basis. Non-parent applicants face a higher evidential burden and should obtain advice before commencing proceedings.

Compliance, Contravention and Enforcement

A parenting order is enforceable. Breach without reasonable excuse can be met by a contravention application under Division 13A of Part VII. The Family Law Amendment Act 2023 restructured the contravention pathway to emphasise graduated responses. Available responses now include: no further action; variation of the underlying order; attendance at a post-separation parenting program; attendance at a family-dispute-resolution process; make-up time orders; compensation for expenses reasonably incurred as a result of the contravention; a bond; a fine; community-service orders; and, for serious or persistent contraventions, imprisonment.

Section 70NAE defines 'reasonable excuse' to include that the respondent did not understand the obligations imposed by the order, and that the respondent believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person (including the child) and the contravention was no longer than necessary. The defence is not general — the burden of proof is on the respondent and the Court applies the defence strictly. Where a parent believes safety requires departure from an order, prospective advice — a variation application, an urgent interim application or a formal record of concern — is safer than self-help.

Costs orders in contravention proceedings are more common than in parenting proceedings generally. A contravention finding also shapes the Court's approach to any future application to vary the order and can influence future best-interests assessments. Contravention is a serious step and should not be commenced casually; conversely, persistent low-level contravention corrodes arrangements and should not be tolerated. Advice should be obtained before filing a contravention application and before responding to one. For a specialist walk-through of the enforcement process, reasonable-excuse defence, evidence and the Court's available responses see our guide to contravention and enforcement of parenting orders.

Variation of Existing Orders

Final parenting orders should not be re-litigated in the absence of a significant change of circumstances since the order was made. This is the rule in Rice v Asplund (1979) 6 Fam LR 570 — a procedural but robust protection against repeated exposure of children to litigation. Change of circumstances examples include: family violence not previously evident; incapacity; substantial relocation; breakdown of the arrangements in practice; developmental milestones (school entry, adolescence); emergence of the child's own settled views; and evidence that the existing arrangements are causing harm.

A change of opinion is not, without more, a significant change of circumstances. The formation of a new household, standing alone, is not usually enough. Where variation is genuinely warranted, it should be attempted first by consent (via a subsequent parenting plan or fresh consent orders) and only by contested application where consent cannot be obtained. Legal advice should be obtained before filing a variation application — an unsuccessful application can attract costs and can entrench the very order the applicant sought to change.

Jurisdiction and Court Structure

The Federal Circuit and Family Court of Australia (FCFCoA), established from 1 September 2021 by the merger of the former Family Court of Australia and the former Federal Circuit Court, hears virtually all parenting applications. It comprises Division 1 (the former Family Court, exercising primarily appellate and complex-trial jurisdiction) and Division 2 (the former Federal Circuit Court, exercising primary jurisdiction). The FCFCoA operates under the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Western Australia retains a separate Family Court of Western Australia which exercises equivalent jurisdiction under the Family Court Act 1997 (WA). State magistrates' courts have limited concurrent jurisdiction in family-violence-adjacent matters but do not make substantive parenting orders in the ordinary case. Appeals from Division 2 lie to Division 1; appeals from Division 1 at first instance lie to the Full Court of the FCFCoA (Division 1); appeals from the Full Court lie to the High Court by special leave. Case management is active: parties should expect early conferences, structured dispute-resolution events and firm trial-listing dates.

Practical Action Plan

The following is a working action plan for a parent considering parenting orders. It is not legal advice and does not substitute for a conference with a family lawyer.

1. Obtain advice. The most valuable conference is the one held in the days after separation. It sets the direction and identifies the risks.
2. Assess safety. Address any family-violence issues first. Intervention orders, safety planning, and secure accommodation come before parenting arrangements.
3. Stabilise the arrangements. Establish a workable, temporary pattern of care, communication and changeover.
4. Document. Keep a dated, factual note of relevant events. Preserve text, email, messaging and co-parenting-app communications.
5. Update authorisations. School enrolment, medical authority, emergency contacts, pickup lists.
6. Estate planning. Update wills, powers of attorney, superannuation binding nominations and life-insurance beneficiary designations. Separation does not automatically revoke these.
7. Consider FDR. Choose a provider. Consider Legally Assisted Dispute Resolution where the matter is complex or high-conflict.
8. Attempt consent orders. If agreement is reached, reduce it to consent orders; do not leave a lasting arrangement as an oral or informal agreement.
9. Prepare for litigation only if necessary. Litigation is expensive, slow and stressful. It is the mechanism of last resort, not the default.
10. Review as the child grows. Orders that work for a five-year-old rarely work for a fifteen-year-old. Build review points into any long-term arrangement.

Worked Examples

The following examples illustrate how the framework operates. They are not legal advice and do not describe actual clients. Each example turns on its own facts.

1. Cooperative separation, primary school. Two parents separate amicably with two young children. They agree on week-about care during term and split the school holidays. They lodge consent orders reflecting the agreement, with joint decision-making for major long-term issues and a change-of-school protocol. The Registrar makes the orders. No litigation.
2. Family violence, urgent interim. A mother separates after a serious incident. She obtains a Family Violence Intervention Order excluding the father from the home. She files parenting proceedings with a Form 4A. Interim orders provide for supervised time at a contact centre pending final hearing and a family report. Final orders reflect the family-report writer's recommendations.
3. Post-order relocation proposal. A mother with primary care seeks to relocate interstate for employment. The father does not consent. She applies. The Court permits the move on conditions: extended school-holiday time with the father, regular video contact, and shared travel costs.
4. Unilateral removal. A father removes the child interstate without notice. The mother applies for a recovery order and location order. The Court orders return within seven days and lists the substantive matter for interim orders.
5. Alienation concerns. Both parents allege the other is alienating the children from them. An ICL is appointed. A specialist family report is obtained. Final orders provide for gradually increasing time with the previously-rejected parent, coupled with therapy.
6. Non-parent applicant. Maternal grandparents apply after the death of the mother. The father consents to time with the grandparents. Consent orders are made providing for regular time and holiday time with the grandparents.
7. Adolescent views. A fifteen-year-old expresses a settled preference to live primarily with one parent. The other parent applies to vary. After a family report the orders are varied to reflect the child's preference, with defined time and communication with the other parent.
8. Overseas travel. A mother proposes to take the children to visit family in a non-Hague country. The father applies for restraint. The Court restrains travel to non-Hague countries but permits travel to specified Hague Convention countries on a bond.
9. Change of school dispute. Parents with joint decision-making disagree over secondary schooling. Each files a specific-issue application. The Court resolves the dispute by reference to the child's best interests, taking evidence from the schools and the family-report writer.
10. Medical treatment dispute. Parents with joint decision-making disagree over a proposed medical treatment. The Court makes a specific-issue order authorising the treatment based on the treating clinician's evidence.
11. Contravention — missed changeover. A father repeatedly returns the children late. The mother applies. The Court finds contravention without reasonable excuse and orders make-up time, attendance at a post-separation parenting program and costs.
12. Contravention — reasonable excuse. A mother withholds the child for a weekend after the child discloses harm at the father's home. The father applies. The Court finds contravention but accepts reasonable excuse under section 70NAE(2) and lists the substantive matter for urgent variation.
13. Two consent orders in five years. Parents agree an initial consent order at separation. Two years later, the child's needs have changed. They negotiate fresh consent orders reflecting the new arrangement without further litigation.
14. Refusal of contact by child. A twelve-year-old refuses time with the non-resident parent. The resident parent applies to suspend the order; the non-resident parent applies to enforce. An ICL is appointed. Family therapy is ordered, with graduated time.
15. Post-death parental responsibility. The primary carer dies. The remaining parent seeks sole parental responsibility; the deceased parent's parents seek time and joint responsibility. The Court orders sole parental responsibility to the remaining parent, with defined time and communication with the grandparents.
16. Consent orders that no longer work. Consent orders drafted at separation prove unworkable as the children reach secondary school. The parents negotiate a subsequent parenting plan that varies the orders under section 64D, then convert the plan into fresh consent orders for enforceability.

Common Mistakes

• Filing without a section 60I certificate where no exception applies. The application will be rejected or stayed.
• Vague or unenforceable drafting. 'Reasonable time' and 'as agreed between the parents' collapse under any disagreement. Every obligation should be enforceable on its face.
• Ignoring family-violence indicators. A Form 4A is a mandatory step where risk is disclosed by the material; failing to file one exposes the party and their lawyers to criticism and remedial orders.
• Using affidavits for advocacy. An affidavit is a sworn record of admissible fact, not a submission. Argumentative affidavits reduce credibility.
• Coaching children before family-report interviews. Detectable and damaging.
• Discussing the litigation with children. Contrary to section 60CC(2)(a) safety considerations and often decisive at trial.
• Secretly recording the other parent. May be unlawful; often inadmissible; almost always damaging.
• Ignoring the estate-planning consequences of separation. Wills, powers of attorney and superannuation nominations are not automatically revoked and must be updated in step with the parenting outcome.
• Underestimating the cost of contested litigation. Contested proceedings routinely cost each side $60,000 to $200,000 or more.
• Delaying advice. Late advice is always more expensive than early advice.

How Parke Lawyers Can Help

Parke Lawyers advises separating parents across Australia on parenting arrangements from first advice through to consent orders, contested interim and final proceedings, contravention, variation and appeals. Our approach is to obtain the right outcome for the child at the lowest cost in money, time and stress — usually by careful negotiation and consent orders, occasionally by contested proceedings where negotiation fails or safety requires it.

Our family-law team is led by Julian McIntyre. The estate-planning consequences of separation are handled by our wills team alongside the family-law matter so that the will, powers of attorney and superannuation nominations move in step with the parenting outcome. For the firm's broader family-law practice see our Family Law service page.

Frequently Asked Questions