12 Feb 2014

When a marriage or de facto relationship breaks down and parties separate, property settlement is often not the only issue.

As any parent would know, children are the most significant aspect of any relationship.  It is therefore vitally important to obtain advice from a family lawyer regarding parenting and children’s issues following separation.

One key aspect of any separation will be living arrangements for the children and arrangements for spending time with both parents.  The key factor in all children and parenting matters is the best interests of the children.  The law takes the view that it will be in the best interests of children to have a meaningful relationship with both parents, unless having a relationship with a parent/s will expose the children to a risk of family violence.

Each parent is presumed to have “equal shared parental responsibility” for their children until they reach 18 years of age. Equal shared parental responsibility means that parents must make “major long term decisions” together.  A major long term decision relates to (but is not limited to):

  1. The child’s education (both current and future);
  2. The child’s religious and cultural upbringing;
  3. Health and medical treatment;
  4. Any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent; and
  5. Changing a child’s name.

Without a proper parenting arrangements in place, coming to an agreement about children can often be extremely difficult.

One of the most cost effective ways of reaching agreement is by formulating a “Parenting Plan” via mediation. In fact the Family Court requires parties to attempt mediation prior to taking any action in the courts. Parenting Plans are recognised by the Family Law Act and may be presented to the Court as evidence of the parties intentions.  However, Parenting Plans are not legally binding or enforceable.

To create a binding and enforceable parenting agreement, the terms of the agreement must be formalised through filing for parenting orders by consent in the Family Court of Western Australia.  A previously drafted Parenting Plan can be very useful at this stage in formulating the proposed orders.

Of course, when a relationship breaks down it is not always possible for the parties to agree on parenting orders.  When that is the case, a parent may apply to the Family Court to make a determination about the best interests of children, and about parenting arrangements.

Once the Family Court has made orders, whether by consent or through an application by one of the parties, these orders become binding and enforceable.  There are penalties imposed upon a party in breach of their obligations under these orders.  These penalties range from losing time with the children to fines and imprisonment.

This is general information only, and does not constitute specific legal advice. Simon Creek is the Managing Director at HHG Legal Group with the Family Law team. James Versteegen is an Articled Clerk with the Family Law team at HHG Legal Group. If you would like further details in relation to this information, please contact our Family Law team on 1800 609 945.

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