Separated parents in Australia can keep their own dated record of time with the children, decisions and costs, and can put any agreement in a signed and dated parenting plan. The terms to know are parenting orders (court orders about a child), family dispute resolution (a form of mediation you generally must attempt before asking for those orders) and the section 60I certificate that shows you tried.
The terms to know
- Parenting order
- A court order about a child. It can cover who the child lives with, time with each parent and other people, who makes decisions and how, and how the child communicates with a parent they do not live with. Each person affected by the order must follow it.
- Parenting plan
- A written agreement between parents that is signed and dated, made free from threat, duress or coercion. There is no required format. It is not legally enforceable, but it can be a useful record of what you agreed.
- Family dispute resolution (FDR)
- A form of mediation run by an independent, registered Family Dispute Resolution Practitioner.
- Section 60I certificate
- The document from the practitioner showing you attempted FDR. It is valid for 12 months.
- Parental responsibility and major long-term issues
- Each parent of a child under 18 has parental responsibility, subject to court orders. Major long-term issues include education, religious and cultural upbringing, health, name and significant changes to living arrangements. If it is safe, parents are encouraged to consult each other about them.
Where cases are heard
Family law cases go to the Federal Circuit and Family Court of Australia. Division 2 has broad federal jurisdiction, including family law, and Division 1 is a specialist family law court that hears the most complex trials and appeals. Western Australia has its own Family Court.
In deciding whether to make a parenting order, a court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, section 60CA). Section 60CC lists what it considers: safety, including from family violence; the child's views; the child's developmental, psychological, emotional and cultural needs; each person's capacity to meet those needs; the benefit of relationships with parents and other significant people where it is safe; and anything else relevant. For an Aboriginal or Torres Strait Islander child, it also considers the child's right to enjoy their culture.
The law contains no presumption about which arrangement is best. The Attorney-General's Department says the law has never entitled parents to equal time: parents spend equal time where they agree to it or a court finds it is in the child's best interests. A court can order joint or sole decision-making on some or all major long-term issues.
If you agree, you can apply for consent orders. If you cannot, one parent files an Initiating Application, which the court says should be a last resort after genuine efforts to resolve the matter.
Mediation and help before court
Unless an exception applies, you must make a genuine effort to resolve a dispute about children through FDR before applying for parenting orders. Without a section 60I certificate or an exemption, the court cannot accept your application. A certificate can also be issued if the other parent refuses to attend, or if the practitioner decides FDR is not appropriate.
You can seek an exemption where the matter is urgent, where there are reasonable grounds to believe there has been child abuse or family violence or there is a risk of either, where a party cannot participate effectively, or in some contravention cases. You do not need a certificate for consent orders, for financial or property orders only, or for child support. You are not required to follow pre-action procedures if it is not safe to do so.
The Family Relationship Advice Line is 1800 050 321, or +61 7 3423 6878 from overseas. It may be able to help with limited free legal advice and information on services. Legal Aid Commissions and Community Legal Centres offer free or low-cost advice, and Family Relationships Online lists accredited practitioners.
Keeping your own record
Your record is for you first, whether or not you ever go to court. Note the date and time, who was there and what happened: changeovers, changes to the arrangement, decisions about school and health, and each expense with its receipt. Stick to what you saw and heard.
If a case goes to court, you tell your story in an affidavit, which is sworn or affirmed to be true and should set out facts, not opinion. It is served on the other party. A dated record makes the facts easier to find, and a lawyer can help you decide what belongs in it.
For child support paid directly under Private Collect, Services Australia says you and the other parent work out the payments yourselves and that you should keep records.
No app decides how much weight a court gives a record. As a general guide, it helps to write things down close to when they happened, to keep the whole picture and not only the difficult days, and to keep anything independent that supports it. If you are thinking of recording calls or conversations, get local legal advice first.
Step by step: keeping a journal you will actually maintain | tracking shared expenses
What has changed recently
The Family Law Amendment Act 2023 was passed on 19 October 2023, and most of the changes commenced on 6 May 2024. They include a simpler list of best interests factors, and the presumption of equal shared parental responsibility no longer exists. Independent Children's Lawyers must in most cases meet children directly, and the compliance and enforcement provisions for child-related orders are simpler.
Existing court orders were not changed by the new law. People with parenting orders should keep following them.
Official resources
- How do I apply for parenting orders?, FCFCOA
- Compulsory pre-filing Family Dispute Resolution, FCFCOA
- Family law changes from 6 May 2024, FCFCOA
- Children and family law, Attorney-General's Department
- Family Relationships Online
- Family Law Act 1975, Federal Register of Legislation
- Parenting orders, Family Court of Western Australia
- Private Collect, Services Australia
Frequently asked questions
Does Australian law give parents equal time?
No. The Attorney-General's Department says this has never been the case. Parents spend equal time where they agree to it or a court finds it is in the child's best interests.
Do I have to try family dispute resolution before court?
Generally yes, unless an exception applies, such as urgency, family violence or child abuse. You file a section 60I certificate with your application or ask for an exemption. If you are worried about safety, tell a lawyer or call the Family Relationship Advice Line on 1800 050 321.
Is a parenting plan legally binding?
A parenting plan is not a legally enforceable agreement, but it can be a useful record of what you agreed. To make an agreement legally binding, you can apply to the court for consent orders.
What changed in family law on 6 May 2024?
Most of the Family Law Amendment Act 2023 commenced that day. There is a simpler list of best interests factors, and the presumption of equal shared parental responsibility no longer exists. Existing orders stay in force.
Does my own record need the other parent's agreement?
We found nothing in the official sources above that asks for the other parent's agreement to your own notes. Oya Shield works with one parent: no shared account and no invitation. How a record can be used in a case is a question for your lawyer.