To change an existing court order, you will need to show that there has been a significant change of circumstances that makes a change necessary. See Changing parenting arrangements for more information.
If you agree to the changes, you can apply for consent orders – see above if you agree on arrangements. Alternatively you may enter into a parenting plan. For more information on parenting plans, see the Family Relationships Online website.
If you do not agree you follow the same process as if you were applying to the Court for the first time.
For information about relocation and travel in family law, see Relocation and travel.
Relocation
Moving with a child to another town, state or country is known as relocation. If your child primarily lives with you and you need to relocate, you should first try to talk to the other party.
If you cannot agree about relocating, you can apply to a court for orders to allow you to move. The Court may not grant permission. The Court will consider the best interests and welfare of the child.
If you move without a court order or without the consent of the other party, a court may require you to return with the child until the case has reached an outcome. If there is a court order in place, you will be breaking the order and the other parent can apply to enforce the current order.
Airport watch list orders
The Court has powers, in appropriate circumstances, to make an order restricting a parent or other person from removing a child from Australia by adding them to the Airport Watch List. The Court also has the power to remove a child's name from the airport watch list. Please see Children and international travel after family separation which provides useful information in relation to applying for an order to add or remove a child's name to the watch list. You should also refer to the Australian Federal Police Family Watchlist Request Form for the exact wording required for a watch list order.
Helpful Hint - The Court has an out-of-hours service for emergencies: that is, there is a risk that a child may be taken out of the country before the next working day. If you call the courts on 1300 352 000 out of business hours, you will be referred to this emergency number.
Passport orders and/or order for a child to travel internationally
For more information about travel and passport issues for children, see Relocation and travel and Children and international travel after family separation.
For further information regarding the issue of passports, see www.passports.gov.au.
Helpful Hint - The Court has an out-of-hours service for emergencies: that is, there is a risk that a child may be taken out of the country before the next working day. Call the courts on 1300 352 000 out of business hours and you will be referred to this emergency number.
Hague Convention
If your child is taken from their home country without your permission, or without the authorisation of a court, then the Hague Convention may apply. For more information, see Recovery orders.
When a parenting or other child-related order is made, each person affected by the order must comply with or follow the order. To understand the obligations when a parenting or other child-related order is made refer to Parenting orders - obligations, consequences and who can help. If you allege that a parenting or other child-related order has been contravened you should read the fact sheet Compliance with parenting or other child-related orders.
The law on contravention of orders is complicated. If a person does not obey an order, the affected person should get legal advice.
If an existing parenting order no longer reflects current arrangements for a child or the other party cannot reasonably comply you can ask the court to make an order to vary the existing order. See Applying to change an existing parenting order above.
If the existing parenting order has been breached the parties should try and resolve the dispute by attending dispute resolution. Call the Family Relationships Advice Line (FRAL) on 1800 050 321 for help for you and the other party to work through your disagreement. Remember, except in limited circumstances, you are required to attempt to resolve the matter through family dispute resolution and obtain a certificate before applying to the court.
If an agreement cannot be reached you can apply to the court for the following:
Application - Contravention
This application is used when you are alleging a breach of a parenting or other child-related order. Before filing an Application - Contravention you should consider the result that you want to achieve and obtain legal advice. The remedies available from the Court range from the enforcement of the order to the punishment of a person for failure to obey an order. For more information, see Compliance and enforcement.
For details on what you need to file, see Application - Contravention.
NOTE: you cannot eFile these applications on the Commonwealth Courts Portal.
A recovery order is defined in section 67Q of the Family Law Act 1975. If a recovery order is made the Court makes an order authorising the AFP to find, recover and deliver the child to the applicant. See Recovery orders for more information.
Before applying to the Court for a recovery order, you should seek legal advice. There are different processes for applying for a recovery order depending on whether you have a current parenting order or a parenting case pending in the Court.
If there is a current parenting orders application pending in the Court you will need to file an Application in a proceeding and the other documents required. If there is no current proceedings before the Court, you will need to file an Initiating Application. See Filing an application with the Court below.
In some situations, you may ask the Court to issue other orders (sought in the recovery order application) to help locate the child; for example:
Location order
If you believe that a child may be in Australia but you are unsure where, you can apply to the court for a location order. When a location order is made it requires:
- a person to provide to the Court any information they have or obtain about the child's location; or
- the Secretary of a Department or an appropriate authority of a Commonwealth instrumentality to provide information about the child's location that is contained or comes into their records (Commonwealth Information Order).
The person (or authority) must provide the information sought by the order as soon as practicable after obtaining the information.
A Commonwealth Information Order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child's location that is contained in or comes into the records of the department.
Publication order
A publication order allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.
For further information about recovery orders, see the Australian Federal Police.
In order to register a change of child's name, you should try and obtain consent from the other parent. If you are unable to obtain consent from the other parent you can file an application with the Court. However, an order from the Court alone may not be sufficient to achieve a change in the registration of a child's name.
Before filing an application with the Court you should seek legal advice. The legal requirements to register a change of a child's name will vary from state to state. To find out what the legal requirements are, contact the Registry of Births, Deaths and Marriages in your state or territory.
Adoption of children is dealt with under state legislation in the Supreme Court or Children's Court. If the adoption relates to a step-child, then leave of the Federal Circuit and Family Court is required. In proceedings for leave the Court must consider whether granting leave would be in the child's best interests.
In this type of application you should obtain legal advice about who the necessary parties are and what to include in supporting affidavits to make sure relationship issues are addressed. You must also file an affidavit supporting the application.
An application for parentage testing is usually sought to determine the parentage of a child in relation to parenting orders or seeking or refuting an application for child support.
In relation to parenting orders
Under s.69VA of the Family Law Act 1975, the Court may issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
In relation to child support
Under s.107 of the Child Support (Assessment) Act 1989 the court can make a declaration that a person should not be assessed in respect of the costs of a child because they are not a parent of the child. An application for a declaration of paternity in this situation must be filed within 56 days of the assessment from the Child Support Agency or the applicant can ask for leave to extend this time limit.
Under s.106A of the Child Support (Assessment) Act 1989 the court can make a declaration that a person should be assessed in respect of the costs of the child - for example if you do not have proof of paternity the court can make the declaration that you are entitled to child support. Under s.69W of the Family Law Act 1975 to determine the parentage of child in relation to parenting orders, the court may make an order requiring a parentage testing procedure to be carried out.
If your application is in relation to paying or not paying child support you are not required to file a dispute resolution certificate (60I certificate). However, it is recommended that you file an Affidavit - Non-Filing of Family Dispute Resolution Certificate, to claim an exemption from counselling as a pre-action requirement.
For more information on child support applications refer to Child support applications.
NOTE: If you are seeking child support orders only and no other type of financial or parenting orders, there is no fee payable and you can eFile this particular type of application by selecting the unguided Initiating application process.
If the court makes an order for parentage testing, the testing must be undertaken through a DNA laboratory that has been accredited by the Attorney General's Department.
Filing an application with the Court
If all parties have reached agreement and want to formalise the agreement to make it legally binding they can apply for consent orders. See How do I apply for consent orders for more information.
You should electronically file (eFiling) applications on the Commonwealth Courts Portal. This allows you, within the Court’s secure website, to access your court file, the ability to eFile and access court orders 24/7.
If you are unable to eFile the application click on Unable to eFile below.
To register for the portal go to www.comcourts.gov.au.
There are two options when eFiling an application:
- Guided – uses the online interactive Initiating application form together with uploading supporting documents
- Unguided – complete an online form and upload the application and supporting documents.
The following are the forms required when eFiling an application seeking parenting orders:
- Initiating application (unguided only)
- Affidavit - requires your signature to be witnessed by a Justice of the Peace or Solicitor.
- Section 60I certificate from a Family Dispute Resolution practitioner or an Affidavit non-filing of family dispute resolution certificate.
- Notice of child abuse, family violence or risk – mandatory.
- Any family violence orders.
- Genuine steps certificate.
- Parenting questionnaire, unless you file an affidavit.
- For cases that include financial matters as well, you will also need to file:
- Financial statement
- Superannuation information kit if seeking a superannuation splitting or flagging order.
- Financial questionnaire, unless you file an affidavit.
For assistance with eFiling go to How do I eFile?
Follow the instructions on the Initiating application kit to help you file your application. The following are the forms required when filing an application seeking parenting orders:
- Initiating application
- Affidavit – requires your signature to be witnessed by a Justice of the Peace or Solicitor.
- Section 60I certificate from a Family Dispute Resolution practitioner or an Affidavit non-filing of family dispute resolution certificate.
- Notice of child abuse, family violence or risk – mandatory.
- Any family violence orders.
- Genuine steps certificate.
- Parenting questionnaire, unless you file an affidavit.
- For cases that include financial matters as well, you will also need to file:
- Financial statement
- Superannuation information kit if seeking a superannuation splitting or flagging order.
- Financial questionnaire, unless you file an affidavit.
Once you have completed and signed the application you can file the original application and documents plus one copy for each party together with the filing fee at a Court registry.
You will be required to pay a filing fee unless you are eligible for an exemption. For more information, see Fees. The amount of the fee depends on what type of orders you seek. Fees are payable at the time of filing.
If you electronically file the application you will be required to pay the filing fee by credit/debit card (visa/mastercard) when you complete the application.
If you file the application at a Court registry you will need to pay the filing fee at the same time.
NOTE: If you DO NOT have a credit/debit card you can buy a pre-paid debit card from various retail outlets for a nominal fee. If you cannot do this, please Contact Us to discuss available options.
To find out if you are eligible for an exemption of fees refer to the Guidelines for fee exemption.
If you are eligible for an exemption you will be required to provide documentary evidence e.g. health care card when you file the application.
- If you electronically file you will be asked to confirm you are eligible in Part 1 of the application and to upload the documentary evidence at Part 2.
- If you are unable to electronically file you must file the Application for exemption from Fees – general together with the documentary evidence e.g. both sides of your health care card with the Initiating application.
If you are not eligible, but paying the fee will cause you financial hardship you can apply for an exemption due to financial hardship.
- If you electronically file you must choose the Un-guided option. You will be asked to confirm you are eligible in Part 1 of the application and to upload the Application for exemption from fees – Financial hardship at Part 2. You must choose the un-guided option if you wish to apply under financial hardship.
- If you are unable to electronically file you must file the Application for exemption of Fees – Financial hardship with the Initiating application.
What will happen after I have filed the application?
Serving the documents
You are now required to serve the documents on any other party.
If you eFiled the Initiating application you will be able to select a court date and print the documents for service. To print the sealed application and documents go to your file in the Commonwealth Courts Portal and select the heading Documents Filed then click on the PDF icon next to the document to download and print.
If you have filed your application at a registry the Court will allocate a court date and return the documents to you.
You are then required to serve the filed documents on the other parties. See How do I serve family law documents for more information.
Lighthouse risk screening
You will be invited to complete the Lighthouse risk screen when you file an Initiating Application (or Response) seeking orders relating to children, such as parenting only orders, or parenting and financial orders, in Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong.
Lighthouse plays a central role in the Court’s response to cases which may involve risk relating to family violence, mental health, drug and alcohol misuse and child abuse and neglect, by shaping the allocation of resources and urgency given to such cases.
For more information, see Lighthouse.
Urgent applications
An urgent order can be sought in parenting proceedings. See Children: My application is urgent for more information.
Urgent applications will generally seek an order for short service or that the matter be heard ex-parte and an urgent hearing.
Urgent orders in parenting applications are generally sought:
- If a child is at immediate risk of physical or psychological harm.
- Child abduction
- Relocation
- Recovery
An order may be sought to seek an urgent listing as an interlocutory order in an Initiating application and must be accompanied by:
- an Affidavit – Family law and child support stating the facts you rely on in support of the urgent application. If you are filing an affidavit with your Initiating application in any event, you can address the urgency of your application in that affidavit; you do not need to file a separate affidavit about urgency)
- a copy of the most recent family violence order (if applicable)
- a Notice of Child Abuse, Family Violence or Risk (if not previously filed in the proceedings), and
-
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 also refer to specific paragraphs of the affidavit on which you rely in support of the urgent application.
The Court may require you to file the other documents set out at paragraph 2.5 of the Family Law Practice Direction: Parenting Proceedings at a future date.
The above process does not apply for Applications for contravention. For contravention applications, please refer to National Contravention List.
