Who can apply for a parenting order and when
On this page:
If you are a parent you can apply for a parenting order. Both parents must be part of the order. However, the law understands that every family is different and that people other than parents, for example, grandparents and other relatives, may have an important role in the life of a child. For this reason, people other than parents can apply for a parenting order.
If the people involved in an application (which includes a non-biological parent), do not agree to the application, they must all participate in a conference with a family consultant to discuss the effects of the proposed order.
The family consultant's role is to manage the case, and to help and advise people involved in family law cases.
If you are negotiating or applying for a parenting order make sure the proposal is what is best for the child, and that it will work. The law is changing so get legal advice.
When can I apply for a parenting order?
You can apply to the court for a parenting order at any time. This includes a parenting order by consent, where each person involved agrees on the parenting arrangements and they want the court to make that agreement into an order. However, before you apply for a parenting order you must attempt to sort out your disagreement with your ex-partner (or other person involved).
The family law courts have 'pre-action procedures' that must be followed first, and these include dispute resolution. There are some exceptions to this, including where there is family violence or child abuse.
From 1 July 2007, if you apply for a parenting order (and you have not previously applied to a court for an order for the child/ren) you must also include with your application a certificate from a family dispute resolution service. The certificate says that you have been to or tried to go to family dispute resolution, or that in the opinion of the practitioner it would not be appropriate for you to go to dispute resolution. A certificate is valid for 12 months from the date of mediation.
You may need to apply if:
- both parents cannot agree on arrangements for a child, for example, where they will live, special occasions or holiday arrangements
- the situation of the parent or child changes and this affects existing parenting orders, for example, one parent wishes to move interstate and needs to change arrangements for the child spending time with the other parent. (If you have a parenting order, you can make a parenting plan to change the current arrangements and this will have legal force)
- there is an emergency and you or the children are at risk
- you need to locate (find) and/or recover a child (have them returned)
- you need to stop a child being taken from your care or moved to a new location because this would affect their right to a relationship with each parent or others who are important to their care
- negotiations are not possible. This may be because one person makes negotiation hard or refuses to negotiate
- there is family violence.
What happens if court orders or arrangements for children are not working?
All court orders still apply even if your situation has changed. If the arrangements are no longer working and your order was made before the 1 July 2006, it will need to be changed by another court order.
If you have an order, you can make a parenting plan and the new plan will be legally enforceable in the areas which are different to the order, (unless the court has previously ordered it can't be changed that way).
A parenting plan is a written agreement between parents (and others if needed) that sets out arrangements for the care of children. It will not be legally enforceable unless it is made without threats or intimidation from the other parent or people involved. Talk to the others involved to see if they will agree on arrangements for the children.
Legal Aid Queensland, Family Relationship Centre or other dispute resolution service may help you and the other/s come to agreement. You can also get help through the Family Relationship Advice Line.
Otherwise you may need to ask the court to decide.
Acknowledgment - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.