FAQs: Parenting and Child “Custody”

After separation, parties need to consider suitable and practical arrangements for their children.  These arrangements can be made on an informal basis, such as by agreement and understanding or on a more formal basis such as entering into a Parenting Plan or Consent Order.  If there is no agreement, parties will more than likely need to have the Family Court determine the parenting arrangements. 

With the flexibility of a Parenting Plan and the legal enforceability of a Parenting Order, there are advantages to both options.  The first recommendation is always that parties attempt to reach an agreement on their own and if successful, consider whether the agreement needs to be enforceable in the Family Court.

Can children issues be dealt with out of court?
Can children issues be dealt with out of court?

Yes.  Parents can agree about the arrangements for their children.  An agreement can be made formally by way of a Parenting Plan or a Consent Order.  If appropriate, parents should attend mediation/family dispute resolution in order to resolve a dispute.

What is a Parenting Plan?
What is a Parenting Plan?

A Parenting Plan is an written agreement made by parents which deals with matters affecting their children. 

These matters include but are not limited to:

  • with whom the children live.
  • the time the children spend with another person or other people.
  • the allocation of parental responsibility for the children.
  • the communication the children are to have with other people. 

A Parenting Plan is an informal agreement and is not legally enforceable, so there are no penalties for breaching the agreement.

What is a Consent Order?
What is a Consent Order?

If both parents are able to reach an agreement about their children, they can file an agreement known as an Application for Consent Orders.  This does not require the parents to attend the Family Court.  However, Consent Orders can also be made after court proceedings have commenced.

The Family Court will review the orders that the parents are seeking and, if satisfied that the terms are in the best interests of the children, will issue final Consent Orders.

These Consent Orders are legally binding on the parties and are enforceable in the Family Court.

What can I do if my ex-partner and I cannot come to an agreement?
What can I do if my ex-partner and I cannot come to an agreement?

If you and your ex-partner cannot come to an agreement, make a Parenting Plan or a Consent Order, then you can make an application for orders in the Family Court.

The Lavan Family Law team can advise you on what parenting arrangement might be best for your children upon separation.  This will include where they are to live, with whom they are to live, and how often they see the other parent.  We can also assist with negotiation of parenting arrangements and specific issues such as parental responsibility, education and medical matters.

Who can make an application for child related orders?
Who can make an application for child related orders?

The Family Law Act 1975 (Cth) allows for any person who has an interest in the care, welfare and development of a child to make an application about that child. 

This means that people who are not the parents may apply to the Family Court for orders, including grandparents and other family members.

How does the Family Court determine child related matters?
How does the Family Court determine child related matters?

The Family Court can make orders which it considers to be in the best interests of the children.

“Best interests” are interpreted by the Family Court with reference to section 66 of the Family Court Act 1997 (WA).

The objects of the Family Court when considering “best interests” are:

  • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
  • protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
  • ensuring that children receive adequate and proper parenting to help them achieve their full potential.
  • ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The principles behind these objects are that:

  • children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
  • children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
  • parents should agree about the future parenting of their children.
  • children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

In some cases the Family Court can require that the children be separately represented by their own solicitor.

Does the Family Court consider the opinions of the child?
Does the Family Court consider the opinions of the child?

The Family Court will always consider what is in the best interests of the child.

The weight given to the views and opinions of the child will depend on the age of the child.  If he or she is not a teenager, their views and opinions may carry less weight.  If the child is older and shows maturity, the Family Court will give more weight to their views.

What can the Family Court determine in a child custody case?
What can the Family Court determine in a child custody case?

There are various types of parenting orders the Family Court can make if necessary, including:

  • Residence/live with – an order to say with whom the child lives.
  • Contact/spend time with – an order to say with whom the child will spend time and for what periods.
  • Child maintenance – an order that provides for financial support of the child.
  • Specific issues – any child related order including, but not limited to, parental responsibility, education and/or medical issues.