Commencing an Application in the Family Court or the Federal Circuit Court

An Application for Parenting Orders (often referred to as custody) in the Family Court or Federal Circuit Court can be commenced by a parent, grandparent, child or any other person concerned with a child’s care, welfare and development. Save for in exceptional circumstances, you must participate in mediation and attempt to reach agreement before commencing court proceedings.

When an Application is filed in the Family Court or Federal Circuit Court, the Judge will make a Parenting Order that creates obligations and responsibilities for the care, welfare and development of a child. Once an Application is filed, the Court has an ongoing duty to ensure that any Order made regarding a child’s care, is in their best interests.

The Court presumes it is in the best interests of a child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe a parent (or a person who lives with a parent) has abused or exposed the child to family violence.

If parents have equal shared parental responsibility, the Court must then consider an equal shared care living arrangement. If shared care would not be in the child’s best interests, or not reasonably practicable, then it considers whether the child should live with one parent and spend significant and substantial time with the other. That usually involves the child spending time with the non-residential parent each alternate weekend, at least one other weeknight, during school holidays and on special occasions. If the Court considers significant and substantial time would not be in the child’s best interests, or is not reasonably practicable, then the Court can make an Order for any other arrangement.

Court proceedings can be overwhelming if you are unfamiliar with the Court system. It involves attending hearings, gathering evidence in approved form, giving oral evidence, making submissions to the Court and participating in mediation and report writing processes. If you are currently involved in proceedings before the Family Court or Federal Circuit Court and would like advice about the process, please contact us.


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