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 Parenting Orders

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Who can apply for parenting orders?

Any of the following persons may commence parenting proceedings:

  • Either or both of the child’s parents;

  • The child; The child’s grandparents; or

  • Any other person concerned with the care, welfare and development of the child.

Before a proceeding starts

In compliance with pre-action procedures, there is a requirement that each prospective party to the proceeding take genuine steps to resolve the dispute before proceedings are instituted. This requires the prospective applicants to attend mediation prior to applying for parenting orders, unless an exemption applies.

 

The Federal Circuit and Family Court of Australia is unable to hear an application for parenting orders unless the application is filed with a “section 60I certificate”, issued by an accredited family dispute resolution practitioner.

 

The section 60I certificate is valid for 12 months and after this date if proceedings are not initiated in court, the parties will need to re-engage in further family dispute resolution.

Exemption to attend mediation

The Family Law Act 1975 (Cth) provides the following circumstances when an exemption to family dispute resolution applies:

 

  • If your matter is urgent and if the court is satisfied that there are reasonable grounds to believe that:

    • there has been child abuse and/or family violence by a party;

    • there is a risk of family violence by a party;

    • and/or there is a risk of child abuse if there were to be a delay in applying to the court;

  • Where a party is unable to participate effectively in family dispute resolution (for example, due to incapacity to do so or physical remoteness from a family dispute resolution provider);

  • If your application relates to an alleged contravention of an existing order that was made within the last 12 months; and

  • There are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

 

If you are seeking to apply for an exemption for any of the reasons above in the Federal Circuit and Family Court of Australia, you must either:

  • Prepare and file an affidavit – non-filing of family dispute resolution certificate; or

  • Include this information in the affidavit filed in support of your application.

 

A Genuine Steps Certificate (Family Law) must be filed with any Initiating Application (Family Law) or Response to Initiating Application seeking parenting orders.

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Making an application and documents to file

A parenting proceeding is commenced by filing an Initiating Application (Family Law), which may include an application for interlocutory orders.

The following documents must be filed with an Initiating Application (Family Law) in parenting proceedings:

 

  1. a certificate given to the applicant by a family dispute resolution practitioner under section 60I(8) of the Family Law Act 1975 (Cth), unless a party submits that an exemption applies under section 60I(9) of the Family Law Act 1975 (Cth), in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under section 60I(9) is required;

  2. a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;

  3. a Notice of Child Abuse, Family Violence or Risk;

  4. a Parenting Questionnaire;

  5. an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules;

  6. a copy of any family violence order affecting the child or a member of the child’s family in accordance with rule 2.10 of the Family Law Rules; and

  7. if the application seeks interlocutory orders, an affidavit stating the facts relied on in support of the interlocutory orders sought.

When an affidavit is required

Applications for interim orders must be filed with an affidavit from the applicant in accordance with the formal requirements. Further, unless permission is granted by a judge, an affidavit in support of an application for interim orders must not exceed 10 pages in length, or contain more than five annexures.

If material in an affidavit exceeds these limits, the judge has discretion to not read the affidavit into evidence or ask the party to select only 10 pages to rely on, and costs consequences may follow. An affidavit is not required to be filed with an Initiating Application (Family Law) seeking final orders only.

Urgent applications

If an application is urgent, the applicant must seek an order that the proceedings be given an urgent listing. An urgent application must be accompanied by:

  1. an affidavit stating the facts relied on in support of the urgent application; and

  2. a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.

If no application for final orders has been made, the urgent application should be included in the interlocutory orders sought in the Initiating Application (Family Law). If an application for final orders has already been made, an urgent application should be made by filing an Application in a Proceeding.

Notifying the other party/parties

The applicant must serve the following documents on all other parties in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:

  1. Initiating Application (Family Law);

  2. any affidavit filed;

  3. Notice of Child Abuse, Family Violence or Risk;

  4. Parenting Questionnaire;

  5.  Genuine Steps Certificate; and

  6. the Marriage, Families and Separation brochure.

If an interlocutory order is sought to be made by the Court without notice being given to the respondent (application without notice), the applicant must satisfy the Court of the requirements set out in rule 5.11 of the Family Law Rules.

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What the court will do next

Upon filing the Initiating Application (Family Law) and supporting documents, the Court will fix a date as soon as practicable for the first Court event.

 

Any application made by a party for an urgent listing will be determined by a Judicial Registrar on the papers.

If an Initiating Application (Family Law) or Response to Initiating Application is filed without a Genuine Steps Certificate, or before pre-action procedures have been complied with, and no exemption is applicable, the Court may stay the application until such time as the parties comply with the pre-action procedures.

 

If an Initiating Application (Family Law) is filed without:

  1. a certificate issued pursuant to section 60I(8) of the Family Law Act;

  2. an affidavit setting out the factual basis of the exception claimed under section 60I(9) of the Family Law Act; or

  3. an Affidavit – Non-Filing of Family Dispute Resolution Certificate,

the Court must stay the application until such time as the applicant complies with the requirements of section 60I of the Family Law Act.

Prior to the first Court event, each party must disclose documents which may contain information relevant to a parenting proceeding. This includes documents listed in rule 6.05(2) of the Family Law Rules.

Full and frank disclosure in parenting cases

Rule 6.05 requires parties to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. The relevant information and documents will be case specific. For example, they may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs, a diary.

 

Rule 7.14 requires a party who has obtained an expert’s report for a parenting case to give a copy of the report to the other parties and the independent children’s lawyer (if appointed).

If the Response to Initiating Application raises a different type of proceedings

Where a respondent raises financial proceedings or another type of proceedings for the first time in the Response to Initiating Application and the applicant seeks to oppose those orders or seek different orders, the applicant must file a Reply with respect to those orders.

Pointing Pen and Finger on Document

Responding to an application

A respondent must file a Response to Initiating Application if consenting to or opposing any of the orders sought by the applicant, or if seeking any other orders in accordance with Part 2.4 of the Family Law Rules.

However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the Court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.

 

The following documents must be filed with a Response to Initiating Application:

  1. a Genuine Steps Certificate, confirming the respondent’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;

  2. if the respondent opposes any of the interlocutory orders sought by the applicant or seeks interlocutory orders in their Response to Initiating Application, an affidavit

  3. a Parenting Questionnaire;

  4. a Notice of Child Abuse, Family Violence or Risk; and

  5. an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules. 

A Response to Initiating Application must be filed and served within 28 days of service of the application to which it relates.

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