You do not have to go to court if you and your ex-partner can agree about how to sort out the issues in dispute.
To make your agreement legally enforceable through the Family Court, you need to file (give to the court) consent orders in that court.
You can do this by filling out an Application for Consent Orders – See Appendix one. You need to give detailed information about each part of your application. This needs careful preparation. If it is a parenting order, you need to tell the court whether or not there have been allegations of family violence or child abuse. If there have, you need to explain how the order you want will deal with these allegations. For all other orders you must address this in an annexure attached to your consent order application.
See ‘Annexures’ in ‘Chapter seven – Affidavits’.
Examples of children’s and property orders are found in Appendices four and seven.
A kit to help you fill out a consent order form is available from the Family Court or can be downloaded from the family law courts’ website. Go to www.familylawcourts.gov.au. You can use this kit as a checklist to fill out the application properly.
Once the Family Court approves your application, the consent orders have the same legal effect as any other court order.
You cannot apply for consent orders in the Federal Circuit Court first up. However, if a case is started in this court and gets sorted out later, consent orders can be made showing what has been agreed.
A parenting plan is a written, signed and dated agreement between parents (and sometimes others) that sets out arrangements for the care of children. Other people, like grandparents or other relatives can be involved in a parenting plan, where it is in the best interests of the child.
A parenting plan is not legally enforceable. A court must, however, look at your most recent parenting plan if you apply later for parenting orders that are different from the plan. Your parenting plan must have been signed and dated for the court to consider it.
If you have a parenting order made on or after 1 July 2006, the Act allows you to change the order by making a parenting plan that is different. You must follow the plan in the areas where it is different to the order. The court cannot, however enforce a parenting plan. Only a parenting order can be enforced.
The court can also say that the parenting order cannot be changed by a parenting plan. This may happen if the court thinks that one party may use threats or intimidation to force the other to make a different parenting plan.
Any parenting plan made using threats or intimidation by any of the people involved will not be recognised under the Act.
A parenting plan may include:
whom the child lives with and the time a child may spend with another person
how parental responsibility is shared including major long-term decision making
the maintenance of a child (but not child support under the Child Support (Assessment) Act 1989)
how the parties will communicate with each other when exercising parental responsibility
how the child will communicate with another person (for example, letter, email, text messaging, telephone)
how disputes about the plan later on may be sorted out (for example, using family dispute resolution)
how to change the plan when the circumstances of the child or parties change
any aspect of the care, welfare or development of the child
grandparents or other relatives’ involvement.
A parenting plan can be changed or stopped by the written agreement of the parties who made the plan. This cannot happen for those parenting plans registered in the Family Court before 14 January 2004.
It is important that you get legal advice when making a parenting plan or if you are having trouble doing what the parenting plan says.
You can also make an agreement about financial matters by using a binding financial agreement. Binding means to make an agreement legally enforceable. These agreements are also known as ‘BFAs’.
You can make binding financial agreements before, during or at the end of a marriage. Defacto (including same-sex) couples are now able to enter into binding financial agreements recognised under the Family Law Act. There are strict requirements before a financial agreement can be considered binding. For example, both you and your ex-partner must see a lawyer. Get legal advice.
It is important to get legal advice before you start negotiating and again before you sign an agreement. Make sure you get legal advice from a lawyer who has not given your ex-partner advice.
The Family Court has pre-action procedures that you have to do. These procedures are found in the Family Law Rules, Volume 2, Schedule 1 (the Rules). The pre-action procedures vary according to the type of dispute. Read the Rules to find out what you must do for your own case.
See Appendix two.
The courts’ website www.familylawcourts.gov.au has information on what to do before you file your application. You can also get this information from the court registry.
The Rules require you to try dispute resolution such as negotiation or conciliation before starting a case about property or spousal maintenance. In parenting cases you must also make a genuine effort to sort out your dispute. Exceptions may apply, for example, where there are allegations of family violence, child abuse or in situations of urgency.
Duty of disclosure and exchange of documents
Each person involved in the case must give (to the court and to the other party) all the information relevant to the case, during the time period that the court requires. This is known as ‘disclosure’. You must begin this before you put in your application. You need to do this until final orders are made.
See ‘Chapter eight – Disclosure and subpoenas’ and Appendix two.