Family Dispute Resolution

Before filing any application for parenting orders in the Family Court or Federal Circuit Court of Australia, parents must try to resolve their dispute by less adversarial means. In order to make an application for parenting orders, parents must supply the Court with a certificate from a Family Dispute Resolution Practitioner which indicates that they have attempted to resolve their dispute outside of Court. 

A Family Dispute Resolution Practitioner is a qualified professional trained in family dispute resolution processes such as counselling and mediation. It is only in exceptional circumstances that the Court will not require such a Certificate.

Parenting Arrangements for Children

The Family Law Act (1975) governs all parenting arrangements regarding children. The objective of the Act is to ensure that children receive help to achieve their full potential and that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.

To promote these objectives it is generally accepted that:

• children have a right to know and be cared for by both parents

• children have a right to spend time and communicate on a regular basis with both parents and other people significant to them;

• parents should share duties and responsibilities in relation to their children; and

• parents should consult and agree about the future parenting of their children.

Read more about Court orders

Relocation of Children

An issue often arising on separation is the question of one party wanting to move with the children to another city, state or country. This issue can be a very emotional and daunting. When the question of relocation is raised, you should obtain legal advice from a specialist family lawyer. 

The Court will consider the competing proposals of each parent and ultimately decide whether the children should relocate based on whether or not it is in the children’s best interests to do so. Some factors the Court will consider include:

• any wishes expressed by the children and their maturity, sex and background;

• the nature of the relationship of the children with each party and with other significant people, such as grandparents;

• the likely effect of any changes in the children’s circumstances;

• the practical difficulty and expense of the children having contact with the non-relocating party;

• the need to protect the children from physical or psychological harm caused, or that may be caused, by abuse, ill-treatment, violence or other behaviour; and

• whether making an order for relocation would be least likely to lead to further Court proceedings.

Enforcement and Contravention of Parenting Orders

The Family Court and Federal Circuit Court of Australia have processes for establishing and enforcing parenting orders. However, enforcement of those orders is discretionary and the discretion will be exercised with the best interests of the child as a starting point.

If a party breaches a parenting order, the other party can file a contravention application in the Court. The Court can then make orders, including for:

• punishment of the contravening party, for example by fines;

• consensual resolution through mediation, negotiation or counselling;

• make up time with the child/children; and

• variation of the original order.

Child Support

Both parents are primarily responsible for maintaining their children.

The Child Support Agency (Department of Human Services)

Child support is generally payable in accordance with a formula contained in the Child Support (Assessment) Act 1989. Different formulae apply depending on the circumstances of the parents. Either parent can ask the Child Support Agency to make an assessment of the amount payable and the assessment is enforceable.

If a party wants to vary a child support assessment, they must usually apply to a child support review officer of the Child Support Agency. There are limited circumstances in which a child support assessment will be varied.

Seeking a Variation from a Child Support Assessment in Court

A variation from a child support assessment can also be made either by the Family Court or the Federal Circuit Court if there are proceedings pending in these Courts.

The Court can also make orders regarding child support if:

• the parents separated before 1 October 1989;

• the child is over 18 years of age; or

• the prospective payer lives overseas and is not covered by the child support legislation.

Child Support Agreements

Parents can enter into different types of child support agreements. These can be long term or short term agreements. There are two specific types of child support agreements:

1. Limited Child Support Agreements; and

2. Binding Child Support Agreements.

Child support agreements can provide for an amount of child support to be paid periodically and/or set out how expenses such as school fees are to be paid. Child support agreements can be registered with the Child Support Agency, making the consent arrangement enforceable.

If a parent receives a Social Security payment, special rules may apply.