Court orders
On this page:
Do I need court orders?
Many people going through separation or divorce make an agreement on parenting or property matters without going to court or having court orders. Family dispute resolution can help you do this. The aim of family dispute resolution is to help ex-partners sort out agreements relating to their children and property.
A Family Relationship Centre, Legal Aid Queensland or other dispute resolution service can offer these services or refer parents to other services that can help them reach agreement.
If you do not divide your property with a property settlement, you will stay financially linked with your ex-partner. If you want a property settlement or spousal maintenance you must apply to court within 12 months of your divorce becoming final, or you must ask the court for special consideration.
If you cannot agree or if your case is not suitable for family dispute resolution, you may need to go to court. There are many steps in the process. These are designed to help you sort out an agreement or, if it is necessary, to prepare your case for final hearing. It may take a long time for your case to get to a final hearing. It can be expensive and stressful, so get help.
Can I use a parenting plan?
You can make an agreement about children by using a parenting plan. A parenting plan is a signed and dated written agreement between the parents of children and any other person (other than the children) involved in the plan, such as grandparents.
If a plan was registered at court before 14 January 2004 it will have the same legal effect as court orders. If a plan was made after that time and there are no court orders in place it will have no legal force (but a court will look at the most recent parenting plan if you decide to make orders later).
If you have a parenting order, you and your ex-partner can agree to change parenting arrangements by making a parenting plan (unless the court says the order is not to be changed in this way).
Legal Aid Queensland, a Family Relationship Centre or other family dispute resolution service may be able to help parents to develop a parenting plan. You should get legal advice before signing a parenting plan to help you understand your responsibilities towards the children and the effects of your plan.
How does the court make orders?
There are two ways for the court to make orders – by consent or by court decision.
A consent order details an agreement between the people involved. It is written like a court order and has the same legal power as orders made by a judge or federal magistrate at the end of a court case.
Consent orders can be made in the Family Court, Federal Magistrates Court or a local court. The Federal Magistrates Court can only make consent orders when the people entering into the consent orders have filed an application.
A court decision is made when people cannot agree. Orders can be made urgently in the absence of one of the people involved (ex parte), interim (temporary) or final.
A court will not make an order about children that is not in their best interests. Most family law cases, however, are sorted out by agreement before the case is finalised in court.
In property cases any agreement must be just and equitable, that is, it must be fair. The Family Law Act sets out how fairness is decided.
What other issues should be considered?
In property matters, if you are not married, local or state laws will cover any property settlement. State and territory laws also cover such issues as wills, changing names by agreement, family violence and victims of crime compensation, whether you were married or have children.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.