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Children

Contributed by HenryMoser and current to 27 July 2018

What law applies

Where the dispute concerns the welfare of children whose parents are or have been married, the Commonwealth Family Law Act 1975 applies.

Where the dispute concerns the welfare of children whose parents have never been married, the WA Family Court Act 1997 applies.

Even though two different Acts apply, the principles concerning children are exactly the same whether or not their parents have ever been married, as the two Acts replicate each other almost word for word.

The Court has four broad aims when making orders that relate to children:
  • ensuring that children have the benefit of both parents having a meaningful involvement in their life
  • protecting children from harm by being subjected to abuse, neglect or family violence
  • to make sure that children are parented adequately so that they may achieve their full potential
  • to make sure that parents meet their responsibilities towards their children.
The following principles are used:
  • children have the right to know and be cared for by both of their parents even if their parents have separated
  • parents jointly share duties and responsibilities towards their children
  • children have a right to have contact with significant persons in their life
  • parents should agree about the parenting of their children.
Old words, such as guardianship, custody and access, or residence and contact are no longer used in the legislation, although they are still used by people in the community. These terms have been replaced by parental responsibility and who the children live with and spend time with.

The financial support of children under 18 is dealt with by the Commonwealth Child Support legislation.

Financial Support of a child over the age of 18 is usually called Child Maintenance and is dealt with, where the parents are or have been married, by the Family Law Act 1975 (Cth) and, where the parents have never been married, by the Family Court Act 1997 (WA).

Family Dispute Resolution

Before a party can start proceedings in Court in relation to the welfare of children, the parents have to contact a Family Dispute Resolution Practitioner to resolve their issues. The Family Dispute Resolution Practitioner will issue them with a certificate which has to be filed with an application.

There are certain exception to the requirement to file a certificate.

A list of Family Dispute Resolution Practitioners can be found here.

Mediation

Mediation is a formal settlement conference conducted on a "without prejudice" basis. Many Courts now conduct compulsory settlement conferences which carry different names (conciliation, pre-trial, mediation). All these are essentially mediations, as they involve the assistance of a third party to achieve a settlement agreed on by both parties.

The mediator is impartial and facilitates discussion and communication.

Parties can still see lawyers to obtain advice. Lawyers are under a strict obligation only to give advice on mediation and other dispute resolution options that do not involve going to Court.

If parties come to an agreement they can enter into a Parenting Plan or make an application to the Court for the making of consent orders, where the Court makes the orders the parties have agreed on.

Note if mediation is sought before proceedings are started that a mediator who is not a Family Dispute Resolution Practitioner cannot issue the requisite certificate.

Court Proceedings

If parties cannot agree on the arrangements of the children or any aspect of the care for the children, either can, subject to having attended on a Family Dispute Resolution Practitioner, start proceedings in the Family Court of Western Australia.

Making arrangements without going to Court

Agreeing about the children

When parents decide to live apart, they are generally able to agree on where their children will live without taking the matter to Court. A solution reached by agreement will usually suit everyone better than a decision imposed by the Court. Usually, parents are better positioned than a Court to work out the arrangements that best suit their children. In addition, Court proceedings can be upsetting, drawn out and expensive. The legislation encourages parents to work together to resolve matters regarding the care of their children rather than resorting to Court action.

There is no obligation for parents to write down the arrangements that they make about the care of their children. Some parents never do. However, many parents choose to keep a written record of what is agreed between them in the form of a parenting plan, while others prefer consent orders.

Parenting plans

A parenting plan is a written document that sets out the arrangements the parents have agreed to in relation to the involvement each will have with their children, where the children will live, how they will be maintained and each parent's responsibilities.

Third parties, such as grandparents, may also be parties to a parenting plan.

A parenting plan must be made free from any threats or coercion.

What should a parenting plan cover?

A parenting plan must include details (name, age, and place of residence) of each child, and should be dated and signed by all parties.

A plan should also include arrangements about:
  • housing;
  • supervision;
  • financial support;
  • health, including any health problems or disabilities;
  • education.
Parents should try to agree on as many issues as possible to leave less scope for future disputes should communication between them break down.

A parenting plan is not legally binding

If parents agree on a parenting plan, the plan does not need the approval of a Court. Once it is signed and dated by both parents and/or anybody else who is a party to the parenting plan, each person should be given a copy of the parenting plan so that they all have a record of what is agreed.

A parenting plan is not legally binding; that is, it cannot be immediately enforced by the Courts and there are no penalties for breach. It is an agreement made between the parents in good faith, and each parent, or party to the plan, is expected to follow it. However, if one parent doesn't follow the parenting plan, and the other parent asks the Court to make a parenting order, the Court may consider the terms of the parenting plan when it makes decisions about the arrangements for the children.

If parents want their agreement to be legally binding, they can apply for the Court to make consent orders (see below).

Changing arrangements

A parenting plan can be changed at any time by making a new informal agreement, parenting plan or by asking the Court to make a parenting order (see below).

A consent order is an order a Court makes when the parties to the proceedings agree to the orders being made. There are different situations in which the Court will make consent orders:
  • the parents make a joint application to the Court or for an agreement to be made into consent orders. An application for a consent order must be lodged on the appropriate form, available in the Consent Orders Kit , and signed by both parties;
  • one parent applies to the Court for parenting orders (see Arrangements made by the Courts). During the course of the proceedings, the parents reach an agreement. The parents can ask the Judge to make orders that reflect that agreement.
Once made, a consent order can only be varied by the parties agreeing to a new order or by the Court. A Court will only change a consent order if both parties agree or if the circumstance of either party has altered substantially (see Varying a parenting order) and the change would better promote the child's welfare (see What must the Court consider).

The process for making consent orders can be the most simple and inexpensive method for making arrangements for children. Consent orders are legally binding and the Court can enforce the orders or issue penalties for breach (see Enforcing parenting orders). Orders that are made by consent have the same standing as orders that are made by a Judge when the parents can't agree (see Arrangements made by the Courts).

Agreements involving third parties

Sometimes parenting agreements include people other than parents, such as grandparents or aunts and uncles. Consent orders may also include people other than parents. If a proposed parenting order contemplates a child living with someone other than a parent, or places obligations on the third party, then they should be included in discussions about the arrangements; whether the discussions occur informally, or before the Court. If the Court is making an order (whether or not by consent), the Court must be satisfied that the order is in the best interests of the child.

Arrangements made by the Courts

Parenting orders

A parenting order is an order that assigns to a person certain duties, powers and responsibilities with respect to a child. There are several different types of parenting orders a Court can make:
  • Orders for the parties to share parental responsibility or for one party to have sole parental responsibility for all or distinct aspects of a child's life;
  • Orders setting out with whom a child will live and during what periods;
  • Orders setting out with whom a child will spend time and during what periods;
  • Orders setting out with whom a child will communicate, possibly including when and in what fashion;
  • Other orders that relate to the care and welfare of a child, especially orders that the Court considers necessary to keep the child safe.

Who can apply for parenting orders?

An application for parenting orders can be made by:
  • a parent;
  • the child;
  • a grandparent of the child
  • any person concerned with the care, welfare and development of the child as long as the parents are also involved in the proceedings.

Paternity

A man is presumed to be the father of a child in the following circumstances:
  • he was married to the child's mother when the child was born;
  • he lived with the child's mother in the 10 months before the child was born;
  • he is acknowledged as the child's father on the birth certificate; or
  • he has signed a document acknowledging he is the child's father and has not since rescinded it.
If there is a dispute before the Court and paternity is also disputed, either parent may ask the Court for a declaration. If satisfied that the facts fit in the above criteria, the Court will make an order of paternity. If the man wishes to deny the presumption, he must prove on the balance of probabilities that he is not the father.

DNA (Deoxyribomnucleic Acid) tests can be conducted to establish paternity and are accepted by the Court as proof of paternity. Tests are done privately and the costs are usually paid by the person who wants the results, unless the Court orders that the parties share the costs. As the test involves taking blood samples from both parties and the child, the Court will only order DNA testing if it believes there is a good reason to do so.

Parental responsibility

Both parents, irrespective of whether they are or are not married, have parental responsibility for a child. Parental responsibility is defined as all the duties, powers, responsibilities and authority that parents have in relation to their children. These powers are not clearly defined in the legislation, but could include decisions about a child's religious upbringing, education and medical treatment.

When a couple with children separates, both parents are expected to continue to exercise their parental responsibility. Unless a Court order specifically provides otherwise, both parents retain parental responsibility independently of each other. For example, if a child is spending time with a parent and requires medical treatment, that parent can obtain such treatment without the consent of the other parent. However, if a child suffers a serious injury or illness, regardless of which parent is caring for the child at the time, a Court would expect that parent to advise the other parent as soon as practicable.

Parental responsibility can only be modified by the Family Court of Western Australia when making parenting orders. The Court can make orders that both parents continue to share parental responsibility, that one parent have sole parental responsibility, or give parental responsibility to someone who is not a parent if that is in the child's best interests.

When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. If, however, there are reasonable grounds to believe that a parent of the child, or a person with whom the parent lives, has engaged in family violence or abuse of the child or another child, then the presumption does not apply. It is also possible for evidence to rebut the presumption, although this would usually not be until after there has been a trial and all the evidence has been tested.

What must the Court consider?

In making a parenting order, the Court's paramount concern is what is in the best interests of the child. The Court has to take a range of factors into account. These factors are set out as 'primary considerations' and 'additional considerations'. Primary considerations are:
  • the benefit to the child of having a meaningful relationship with both parents;
  • the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The Court must give greater weight to this primary consideration.
Additional considerations are:
  • any views expressed by the child and factors, such as the child's maturity and understanding, which affect the weight given to those views;
  • the nature of the relationship between the child and each parent and other people including grandparents and other relatives;
  • the extent to which each parent has taken, or failed to take, the opportunity to participate in exercising parental responsibility (see Parental responsibility), spend time with and communicate with the child;
  • the likely effect of any change on the child: including the likely effect of separation from either parent or any child or other person who they have been living with;
  • the expense or difficulty of a child spending time with and communicating with a parent;
  • each parent's capacity to fulfil a child's needs: the Court takes into account the capacity of each parent or of any other person (including a grandparent or other relative) to provide for the needs of the child, including the child's emotional and intellectual needs;
  • the maturity, sex, lifestyle and background of the child and either of the child's parents;
  • the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture;
  • each parent's attitude to the child and to their parental responsibilities: the conduct of a parent can be relevant to a dispute over where a child is to live if that conduct may affect the care, welfare and development of the child - for example, factors such as alcohol or drug addiction, domestic violence, physical or mental illness, previous neglect or child abuse, the payment or non-payment of child support, or unreasonably denying contact with a child, may be considered relevant;
  • family violence: the Court considers any family violence involving the child or a member of the child's family and any domestic violence order that applies to the child or a member of the child's family;
  • whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child;
  • any other fact or circumstance thought relevant.
The factors outlined above are considered in terms of the long-term and short-term care, welfare and development of the child.

A child does not give evidence to the Court in person, nor will the Judge ordinarily see or speak to a child. Rather, a child's wishes are communicated to the Court via a family report or through a legal representative appointed on the child's behalf, called an Independent Children's Lawyer (ICL). It is important to bear in mind that children often express to both parents a wish to live with them, and that they may do so out of loyalty and a concern to maintain close contact with that parent. Children may or may not express those same views to an independent person, like the ICL or a family report writer, and children cannot be forced to express a view.

Since the 2006 amendments to the Family Law Act came into force, there is a much greater emphasis than ever before on resolving disputes other than by a trial. There is also a clear direction to the Court to consider orders which permit both parents to have significant involvement in a child's life.

Parents (and, where relevant, third parties (see Agreements involving third parties)) are required to attend dispute resolution before filing an application about children's matters. To show that they have met this requirement, parents need to provide the Court with a certificate from a Family Dispute Resolution Practitioner before they are allowed to file their application in Court.

There are some circumstances, such as where there are allegations of child abuse or family violence or where the matter is urgent, where family dispute resolution will not be appropriate. Parents to whom these exceptions apply will not require a certificate from an Family Dispute Resolution Practitioner before they make their application to the Court. However, the Court may make orders that the parents participate in family dispute resolution at any stage during the proceedings, for example, once urgent matters have been dealt with.

The Commonwealth Government provides funding to Family Relationships Centres and other similar organisations to operate family dispute resolution services and counselling in capital cities and other regional centres.

If the Court applies the presumption for equal shared parental responsibility (see Parental responsibility), the Court must consider making an order that a child spends equal time, or substantial and significant time with each parent if it is reasonably practicable and in the best interests of the child. Substantial and significant time is time which includes weekdays, weekends, holidays and special occasions. People who advise parties in relation to children's issues after separation are required to raise the possibility of equal or substantial care with the party or parties they are assisting. Advisers include solicitors, family counsellors and family consultants.

Orders as to with whom a child is to live

An order about who a child will live with should specify the name and age of the child, and should clearly indicate when (what days and times) a child will live with that parent. Other matters may be included such as the venue for handover and which of the parents will transport the child.

Keeping the children together

The Court is often reluctant to separate children, and a parent who can show that they have the capacity to care for all of the children in their family has an advantage over one who is seeking orders in relation to only one or some of the children.

The effect of a parent's lifestyle choices

Each individual case is assessed on its merits, and the fact that a parent is living in a de facto or homosexual relationship, or in some alternative lifestyle, is not necessarily relevant to whether a child should live with or spend time with them. What is relevant is the whole environment and the effect it will have on the child. Factors such as the personality and attitudes of the people involved in the relationship and the strength of the relationship can be considered.

Types of orders a Court can make

The Court can make a number of different orders when determining an application relating to children. In rare cases, the Court may order that a child live in the sole care of one parent and spend no time with the other parent. This might be the case if there are serious issues of abuse or violence. More often, orders will provide that a child live with one parent and spend specified amounts of time with the other parent. There may be orders about handover, medical procedures, education, extracurricular activities, and a range of other matters which affect the welfare of a child. The Court may also make orders about how the parties should resolve any conflicts that arise between them in the future.

The Court has a wide discretion in the types of orders it may make. The types of orders made will be dictated by what the parties ask for in their applications to the Court, and what the particular facts of the case are.

Interim orders

If one parent makes an application for a child to live with them, and that is opposed by the other parent, it may be some time before a final determination is made. In such a case, the Court may make an interim order that the child is to live with one parent until a final order can be made. An interim order does not create a status quo which influences the final determination. In fact, the Court is specifically directed to disregard the allocation of parental responsibility in interim orders when making a final determination.

Before 2006, interim orders made by the Court would generally maintain the status quo if the child was well settled and not at risk. These days, the existing status quo is only one factor to be taken into account. The Court is still required to consider all the factors to determine the best interest of a child, as well as the presumption of equal parental responsibility and whether a child should spend equal or substantial time with the other parent. There may be allegations raised in affidavits - that is, of abuse or violence - which are not able to be tested in an interim hearing. In those cases the Court has the discretion to determine that it would be inappropriate to apply the presumption of equal parental responsibility on an interim basis.

Orders in favour of a third party

The Court can make an order about where a child lives or spends time in favour of a person who is not a parent, such as a grandparent or a relative of a parent. A live with order made in favour of a third party does not extinguish the responsibilities of the parents.

Parents do not have to agree to an order in favour of a third party. The Court may make such an order if it is satisfied that the order is in the best interests of the child.

Urgent orders

Under certain circumstances, a Court can make an urgent order in favour of one parent without even hearing from the other parent. Such an order (an ex parte order) is only made in exceptional circumstances. This kind of order only operates for a very short period and the other parent is given every opportunity to be heard by the Court throughout the rest of the proceedings.

Varying a parenting order

The Court can discharge, vary, suspend or revive a parenting order at any time until the child turns 18 years of age, marries or is adopted by another person. However, the Court can only change an order if there is a change in circumstances substantial enough to warrant the change.

Examples of changes that would be considered substantial are:
  • the removal of a child from Australia;
  • a parent's remarriage and a subsequent change in the stability of accommodation;
  • a change in the psychological and physical needs of a child.
It is possible to vary Court orders by parties agreeing to those changes and applying to the Court for new consent orders or making a new parenting plan.

Terminating a parenting order

Any parenting order concerning a child automatically ceases once the child turns 18 years of age, marries or is adopted by another person. Where the child is adopted by a step-parent, existing parenting orders are not altered unless the Court approves the adoption or the Court varies the orders.

Existing orders may be terminated with the consent of the parties by filing consent orders or making a new parenting plan. The Court decides whether or not to approve consent orders and will not make orders which are clearly not in the best interests of a child.

When one parent dies

If an order as to where a child lives has been made in favour of one parent and that parent dies, the other parent is not automatically entitled to have the child live with them. The surviving parent or any other person can apply to the Court for a parenting order in their favour.

Appointing a guardian by will

In their will, a parent may appoint another person to be the guardian of their child upon their death. The Court can consider such an appointment as evidence of the parent's wishes, but the appointment will not, of itself, give the appointed person care of the child in any legal sense. The issue for the Court is, at all times, what is in the best interests of the child.

Preparing an application for a parenting order

Each parenting dispute is, to some extent, unique and an application will reflect this. However, a party making an application to the Court should include information about:
  • their personal qualities as a parent;
  • their background and occupation;
  • their mental and physical health;
  • the accommodation proposed;
  • the child's health;
  • the child's physical care;
  • the child's moral, cultural and educational influences;
  • their emotional involvement with third parties (such as a wife, husband or de facto partner), including a third party's personal traits, background and occupation and relationship with the child;
  • their relationship with their family group, including contact with brothers, sisters, parents and grandparents and other extended family;
  • their attitude about contact between the child and the non-resident parent;
  • any specific cultural issues important to the child's wellbeing and development;
  • the orders that the applying parent would like the Court to make.

The enforcement of foreign residence orders

Australian Courts are required to recognise and act on registered overseas residence orders. The orders that can be registered in Australia are those made in prescribed overseas jurisdictions, which include New Zealand, Papua New Guinea and most states of the USA.

An overseas residence order that has been registered has the same force and effect as an order by an Australian Court. A Court in Australia cannot cancel the registration of an overseas order unless each responsible person under the order consents to the cancellation, the welfare of the child would be adversely affected if the order continues to operate, or there has been a significant change in the child's circumstances to warrant cancellation of the registration.

Common conflicts over parenting arrangements

The Court only becomes aware of problems in parenting arrangements if someone brings them to its attention by making an application. In most instances, the Court has always encouraged parents to use dispute resolution to try to resolve any problems and has urged them to be flexible, cooperative and to keep what is best for their children as their highest priority. Parents are required to demonstrate a genuine commitment to resolving disputes, keeping Court as their very last option.

Following is a list of common problems, together with the Court's likely response:
He/she always turns up late

A child can become upset when the parent with whom they are due to spend time with doesn't turn up, changes arrangements, is very late, or too early. Problems can arise if the other parent is not available when the child is due to be returned, or if the parent returning the child is always late. A Court can make orders which clearly specify collection and return times. If a problem with punctuality is becoming chronic, a party may bring proceedings to vary existing orders, or for contravention of orders.
He/she never provides the child with suitable clothing

Sometimes, when a child arrives to spend time with a parent, the child has too much or too little clothing, or clothing that is inappropriate - for example, they arrive in their best clothes or without swimmers when the parent has planned to take them to the pool. This can lead to tension and can upset the child. The Court generally expects the parent with whom the child lives to provide a child with enough appropriate clothing for shorter visits with the other parent, and for that parent to return these clothes with the child. If a parent is spending substantial and significant time with a child, it is often practical for each parent to keep their own supply of clothes for the child.
He/she bad mouths me in front of the child

This can cause bad feeling, be upsetting for the child and lead to major conflict between the parents. The Court may order the parents not to make derogatory comments about each other in the presence or hearing of the child and to refrain from questioning the child about the other parent's private affairs.
He/she always spoils the child

If a child is overindulged while spending time with a parent, they may build a false impression of life with that parent, which can be destabilising for them. Breaking the routine of younger children in terms of sleeps, meals and toilet training can be confusing for a child and can cause hostility between parents. The Court may order the parent with whom the child is spending time to stick, within limits, to a young child's normal routine. A parent who showers a child with presents during visits may find that the child reports that fact to a family report writer, and any view the child forms about the parent may be given less weight because it is heavily influenced by that parent's overindulgence.
Soccer training is on Saturday morning and the child would love to go, but he/she won't change the time they spend with the child

Sometimes a child's recreational activities, such as sport or parties, conflict with the time they are to spend with a parent. Parents may differ over which should take priority. The Court may make a decision about priorities and may order a parent to take a child to sporting activities, or alter the order so that the child spends time with the parent at another time.
The child finds his/her visits distressing

This kind of distress may indicate a problem with the time spent with a parent or may have other causes. The Court's response will depend on the severity of the distress and the reason for it. There is normally a settling in period in the early stages of parenting orders and, during this time, the Court encourages parents to persevere. If, however, the distress is severe and is not diminishing or is caused by ill treatment during periods of time spent with a parent, the Court will evaluate the evidence. Conditions may be placed on the time a child spends with the parent, for example it may be supervised, or the Court may order it to be stopped.
I want to see my child but he/she refuses to allow me to

In most cases, the Court makes orders that a child is to spend time with the parent with whom they do not live unless it finds that the latter parent has good reason to refuse to facilitate this. In such a case, orders may be approved subject to appropriate conditions and limitations. In rare cases the Court may find that the parent with whom the child lives actively discourages the child to have a relationship with the other parent and alienates the child from the other parent. In those cases this may be reason for the Court to change the living arrangements entirely.
He/she gets angry and violent in front of the kid when he/she drops off or collects the child

The Court can order the offending party to stop being abusive at changeovers or at any other time in the presence or hearing of the children. Alternatively the Court may order that the changeover takes place through a third person, such as a friend, or in a public place, like a shopping centre. There are various services that can assist parents by offering supervised changeovers, so that the parents don't need to see or speak to each other. If the angry scenes are ongoing or have escalated to threatened or actual violence, the Court may suspend or cancel the orders that the child spend time with the parent.
He/she refuses to return the child

Except in special circumstances, the Court will order that the child be returned to the care of the parent with whom they normally live immediately. The Court may be critical of a parent who breaches an informal agreement without good reason, even though a Court order has not been breached. It is common for a child to be reluctant to leave at the conclusion of visits and the Court will usually find that is not a sufficient reason for refusing to return them.
He/she gets drunk in front of the child

The Court recognises that some parents like to drink alcohol from time to time. However, when a parent who is responsible for a child gets drunk, that can cause problems because that parent might engage in inappropriate or dangerous behaviours in front of the child, may be unable to properly supervise the child, keep the child safe, or drive the child to the hospital or a doctor if necessary. Where alcohol consumption is an issue for one or both of the parents, the Court can make orders that put restraints on the amount of alcohol each parent can consume when the child is in their care or even during the time before the child comes into their care. The Court can make similar orders about other dangerous behaviours, such as consuming illicit substances or abusing prescription medication. It can make orders that the child must be properly restrained by a seat belt and/or appropriate car seat, or not exposing the child to other people who are doing dangerous things.
It costs me a small fortune every time I want to see my child

When parents live a distance from each other, the costs of the child travelling to see the other parent, or the other parent travelling to see the child, can be expensive. The Court will look at the circumstances surrounding each situation and the respective ability of each party to contribute towards travel costs. The Court treats the child's welfare as the paramount consideration. If one parent created the expense for reasons other than those associated with the child's welfare and they can afford the travel costs, they may be ordered to pay them. In other cases, the parent most able to afford the travel costs may be ordered to pay, even if the situation was not of their creation. It is more usual, however, for an order to require that parents share travel costs. If the interests of the child require it, the Court may order a parent who has relocated to return the child to their previous address, or require that the parent other than the parent with whom the child lives, spends time with the child in the place where the child lives.

Orders to spend time/communicate with

In addition to making orders about who the child lives with, the Court also makes orders about whom the child spends time with and when that time should occur. The child may spend time with the other parent, or with other people like grandparents and other relatives. It is the right of the child to spend time with their parent, not the right of a parent to spend time with their child. This distinction is important because it reflects the principle underlying any decision a Court makes regarding children; that the best interests of the child are paramount.

The aim of parenting orders is to foster a meaningful relationship between a child and each of their parents. Orders can be made that a child maintains a relationship with the parent they do not live with in a variety of ways such as face to face contact, telephone calls, emails and correspondence.

The basic principles governing a parenting dispute

The following principles govern the decisions a Court makes in a parenting dispute:
  • the welfare of the children is the most important consideration;
  • a child has a right to maintain a meaningful relationship and direct contact with both parents on a regular basis;
  • parents should, wherever possible, agree on the parenting of their children and share the responsibilities and obligations of being a parent.

Allegations of abuse

The Court will not make an order for a child to spend time with a parent if there is an unacceptable risk of child abuse occurring. If an order has already been made, it may be suspended, or a supervision requirement included in the order, until the Court is satisfied that there is no longer an unacceptable risk of abuse and that spending time with the parent is in the best interests of the child.

Many parents have differing ideas about how to handle the job of being a parent, and some cope better with the responsibility than others. Any person who reasonably suspects that a child is or has been a victim of abuse or neglect should immediately contact the Department of Communities, Child Protection and Family Support (see Resources) to have their suspicions investigated.

Interim orders

When a parent applies for an order that a child or children live with or spend time with that parent, they do not want to wait for a trial before such orders are put in place. The time between an initiating application and a final judgment after a trial can be well over a year, and children and parents need some certainty in their arrangements in the meantime. Parties therefore usually file an application for interim (in-between) orders, in addition to their application for final orders. In those circumstances, a Court will make interim orders. Interim orders are made by consent or after an argument on the documents, but usually not requiring the parties to give evidence in person. Parties may make various applications seeking variations of interim orders throughout the proceedings, as circumstances change or problems surface which require changing existing orders in between then and when final orders are made.

Domestic violence and contact orders

Family violence is an important factor that the Court considers when making interim and final orders. This includes violence between parties, violence directed to children and violence children have witnessed.

Protecting children from family violence is crucial to promoting their best interests. The Court must also consider protecting parties from family violence as this can impact on their ability to care for children.

If there is a risk of family violence or family violence has occurred, the Court will consider what safeguards can be put in place to address this and keep everyone safe. This might include orders for parties to effect changeover in a public place, or at a handover service.

Violence Restraining Orders (VRO) are called different things in different jurisdictions. Regardless of where the order has been made or whether children are also included in the order, the Court must consider whether there is a current VRO in place or an order made previously and the circumstances surrounding the making of that VRO (for example, is the VRO an interim or final VRO, did the Court which issued the VRO make findings of facts about the family violence or did the parties agree to the VRO being made without admissions of liability).

The Court does have the power to make parenting orders that are inconsistent with a VRO, but they must clearly explain the order made to the parties, the obligations it imposes on the parties, and the effect of any breach. The Court must also send a copy of the order to the parties, the police and child welfare authority in the jurisdiction in which the protected person of the VRO resides.

Making a Violence Restraining Order where there is an existing parenting arrangement

The Magistrates Court hears applications for VROs. When it is hearing an application for a VRO, the Court can vary, discharge or suspend existing arrangements made under a Court order or parenting plan whereby a child spends time with a parent against whom the VRO is directed. The Court may exercise this power if it believes that the arrangements provided for in the Court orders will conflict with any VRO it intends to make. It is, however, very rarely that the Magistrate's Court would exercise this power, preferring instead to make a VRO which can accommodate already existing parenting arrangements in such a way as to ensure the safety of the complainant.

The Family Court of Western Australia also has the power to make VROs.

Children of Aboriginal or Torres Strait Island descent

The legislation acknowledges the right of children from Aboriginal or Torres Strait Island background to maintain contact with their culture. While this may not mean that if one parent is not from this background the other will automatically be granted residence orders and given the responsibly for daily care of the child, it does mean that specific proposals should be put in place to ensure the child has the opportunity to maintain contact with their cultural heritage and family. See Aboriginal and Torres Strait Islander Peoples.

Religion

The Courts hold the view that it is not their function to give preference to one type of religious upbringing over another.

Changing a child's name

If both parents agree, an application to change the family name of a child can be made through the Registrar General's Office.

If one parent disagrees, the parent seeking the change must apply to the Court for a declaration that it is in the best interests of the child that his or her name be changed. If successful, the declaration can then be submitted in support of an application to the Registrar General.

If only one parent applies, the Registrar is unlikely to authorise a change of name without a Court Declaration except in exceptional circumstances, such as where the whereabouts of one parent is unknown, there has been no contact between the child and that parent for many years and no maintenance has been paid during that period.

To change a child's given name(s) after the child turns one, the same procedure must be followed. Applications to change the child's name in the first 12 months can be made by:
  • one parent of the child if the other is dead, or if the parents are divorced or separated and the parent making the application has sole responsibility for the child;
  • the child's legal guardian;
  • the mother of an ex-nuptial child; or
  • the parent of a child, where that parent has been deserted by the other.
If the child is over the age of 12, the Registrar will also require his or her written consent to change of name.

Relocation

Because of the increased mobility of our society, cases where one party wishes to move with the children to a different part of Western Australia, another State in Australia or even overseas are now more common than they were only ten years ago. These cases present particular difficulties because of the impact a move has on the relationship between the other party and the children.

The Court takes the following approach to these cases:
  • The best interest of the child is the paramount, but not the sole, consideration;
  • The Court cannot ask the party making the application to make out a "compelling reason" for wishing to move;
  • The Court has to consider the competing proposals put forward by each of the parties;
  • The Court has to consider the question of residence and relocation together and is not allowed to separate the two issues;
  • The Court has to weigh up the advantages and disadvantages of each proposal by taking into account the factors to determine the best interests of the child.
Further, the following matters are of importance for these cases:
  • Neither party bears an onus of proof to establish that a proposal is in the best interest of the child. The Court has to make that decision on the evidence produced at the hearing;
  • The Court may not restrict the freedom of movement of the party making the application, that is, the Court can only make orders as to where the children may reside. This may then have the practical effect of the party making the application not moving;
  • The Court will place great emphasis on the party opposing the move having contact that effectively ensures that the children and this party maintain a relationship. This usually means that applications involving older children who can make use of communication by way of letters, email and telephone and can travel for contact alone, are more easily granted than for younger children.
The Court also has to be satisfied that the parties have the financial means to ensure that there is extended physical contact, for instance during school holidays.

Applying for a parenting order

The Family Court of Western Australia can hear and make all possible parenting orders. Outside the Perth Metropolitan Area, the Magistrates Court also has the power to make orders, however, generally, the Magistrates Court is only used if there is no other option available, and the proceedings are transferred to the Family Court of Western Australia to be heard when it sits in the nearest regional centre on circuit.

The appropriate forms can change often and it is best to talk to the staff at the Family Court of Western Australia, or speak to a family lawyer before making an application for parenting orders.

The relevant forms must be filed in the registry. A fee is also payable which can be waived in cases of financial hardship. Further information regarding the fee can be obtained from the registry.

Pre-action procedures

Parties are required to undertake a genuine effort to resolve their dispute by participating in some dispute resolution process, and exploring the possibilities for settlement by correspondence. As from 1 July 2007 parties are not permitted to file an application unless they provide a certificate from a Family Dispute Resolution Practitioner. The Court will take into account the extent to which parties have initiated and participated in pre-action procedures, and may make costs orders against a party who has been uncooperative, has delayed proceedings or has not made full disclosure of relevant facts. There are certain circumstances where a Court will accept that undertaking pre-action dispute resolution was not appropriate, for example where there are allegations of family violence or child abuse, or the application is urgent.

Serving documents

Once filed, a copy of the application and any other documents filed, together with a document setting out the legal and other effects of the proceedings (provided by Registry staff when the documents are filed), must be served upon the respondent. The procedure for service is similar to the procedure for service of an application for the dissolution of marriage. The differences will be explained by registry staff when the forms are collected, although generally requirements for service are satisfied by posting a copy of all documents to the other party, accompanied with the relevant form for service. If relations are hostile and a party may avoid service and delay matters, it is best to serve an initiating application by hand, and obtain either a signed Acknowledgement of Service or complete an Affidavit of Service. A good option is to pay a process server to serve the documents on your behalf. This way you can be sure that they will correctly complete the Affidavit of Service. If a party is represented by a solicitor, that solicitor should be served with the documents. A party to the proceedings should not serve the documents. A Court will not proceed to hear an interim application, unless it is satisfied that all relevant parties have been served and been given the opportunity to attend at Court and have their say.

Family consultants and the trial process

The legislation aims to promote cooperative parenting, reduce the negative impact of adversarial litigation on children, and achieve resolution of disputes as quickly as possible and with minimal formality.

New matters will, after filing in the Court, be referred to a family consultant, who is likely to be a psychologist or social worker. The family consultant will undertake intake and assessment interviews with the parties at a Case Assessment Conference. Joint interviews will only be conducted if both parties consent.

The family consultant will report back to the Magistrate in whose docket the matter is listed and may then also convene a family and child conference which may include individual interviews with the children, and feedback to the parents regarding the wishes of the children. A brief report will be prepared, and that report will be placed on the Court file. The report may provide the family consultant's recommendations about resolving the substantive issues in dispute. All sessions with the family consultant are reportable and may become part of the evidence at a hearing.

At an interim Court event a Magistrate may consider the report and make directions or even partial decisions as the matter proceeds. The Magistrate has a wide discretion in the types of orders and directions which may be made. For example, a Magistrate may order parties to undertake counselling or direct them to enrol children into counselling, or may direct the family consultant to explore a particular issue and report back to the Court. The Magistrate will also decide and give directions as to which issues are important and therefore what evidence may be led. Solicitors for the parties may also make submissions about the recommendations and whether there is any evidence before the Court which should also be considered in addition to the report.

In the event that parties remain in dispute, the matter may proceed to trial (final hearing). The family consultant may be requested to prepare a family report and appear at the trial to provide further information about their reasoning and recommendations.

Family reports

Family reports can be ordered by the Family Court or Federal Circuit Court to assist them in making decisions about children. A family report may cover a child's relationship with each parent and any new partner, a description of the current parenting arrangements, and any proposals each of the parties may put forward. A family report prepared for the Court may include a section which sets out a child's view of parenting arrangements and any proposals which may have been made by the parties. The report may also include a section which records any comments the child may wish to convey to the Magistrate.

The Independent Children's Lawyer

The Court of its own accord, or on the application of the child, either parent, an organisation concerned with the welfare of the child, or any other person, may order that a child's interests be independently represented, by an Independent Children's Lawyer (ICL).

The role of the ICL is to form an independent view, based on the available evidence, of what course of action is in the child's best interests. An ICL is not obliged to act on the instructions of a child.

The ICL is obliged to put the child's views before the Court but is not bound by a child's instructions when it comes to making submissions to the Court. The ICL may report directly to the Court the child's views on certain matters. The ICL may liaise with the family consultant or any other Court-appointed expert and ensure that the relevant information about the child's views and other matters relating to the child's welfare is put before the Court by way of expert reports. The ICL is a party to the proceeding and is able to present and test evidence before the Court.

Appeals

An appeal against a final parenting order is made to the Family Court by completing a Notice of Appeal and filing it in the registry of the Family Court within 28 days from the date the order being appealed was made. A fee is payable.

It is recommended that you obtain independent legal advice from a family lawyer before pursuing an appeal.

Enforcing parenting orders

The Court has available to it a range of remedies to enforce a parenting order.

Injunctions

To make a caregiver comply with a parenting order, a caregiver can ask the Court to make an injunction (a type of Court order). An injunction can prevent a caregiver from doing certain things, such as taking a child out of Australia, or can regulate the behaviour of the party while the child is in their care, such as ordering them not to drink alcohol.

A party who breaches an injunction can be liable for a range of penalties.

Penalties for not complying with orders

If the Court finds that a person has, without reasonable excuse, contravened the provisions of a parenting order or plan, it can:
  • vary the primary order;
  • order a party to attend a post separation parenting program;
  • compensate for time lost with a child as a result of the contravention;
  • require a party to enter into a bond;
  • order a party to pay all or some of the legal costs of the other party or parties;
  • order a party to pay compensation for reasonable expenses lost as a result of the contravention;
  • require a party to participate in community service;
  • order a party to pay a fine;
  • order a party to a sentence of imprisonment.

Warrants and arrest

A warrant for arrest may be issued where, for example, an application for contravention of an order is filed and served, and the defendant does not turn up at the hearing. The Court can also issue a warrant for the arrest of any person it believes, on reasonable grounds, to have breached a Court order.

When children are taken/withheld by a parent or other caregiver

When a child is taken or withheld by a parent or person who spends time with a child pursuant to a parenting order, the aggrieved person should take urgent action by obtaining legal advice and filing an application seeking a recovery order. A recovery order, if made by the Court, orders the return of the child to the aggrieved person. If a person does not take action quickly they may not be able to get orders made in their favour on an interim basis. If the application is successful the Court will order the return of a child to the aggrieved person, with the assistance of the police if necessary.

Recovery order

The Court has the power to make an order requiring the return of a child to either the applicant or some other person. Such an order can authorise a person to stop and search vehicles and enter premises. The Court can also issue an order about the day-to-day care of a child in anticipation of that child's return so as to prohibit any future removal of the child, or authorising the arrest of the person who removed the child.

If the aggrieved person knows where the child may be living

If a parent refuses to return a child after a visit or has taken a child, and there are Court orders in place, it amounts to a breach of the orders, and the aggrieved parent will need to go to Court to seek a remedy. The Court decision with respect to punishment is based on the seriousness of the breach, what is in the best interests of the child, whether the order has been breached previously and whether there was a reasonable excuse for breaching the order.

Location Orders and Commonwealth Information Orders

If the aggrieved person doesn't know where the child is located, they should seek a location order which directs a person/agency such as Centrelink to supply information about a child's whereabouts, in addition to a recovery order. Applications and supporting affidavits need to be lodged with the Court. An application for a location order can be made by a person with whom the child lives or spends time with, or is concerned with the care, welfare and development of the child. It is not necessary for there to be any existing parenting orders in place. The order must be served on the agency or person requested to produce information.

Location orders are usually made when a child is removed and the aggrieved person satisfies the Court that they have exhausted all other reasonable means of being able to locate the child (for example, asking mutual friends/family about the child's whereabouts). The best interests of the child remain the paramount consideration for the Court in deciding whether to make a location order. Any person required to provide information under the order must do so regardless of any other law that might apply. If there are allegations of family violence, a Court may direct that the address of the parent or person who has the child not be released to the other party, but only to their solicitor so that documents may be served.

These kind of orders are only appropriate if the child is believed to be in Australia.

If you believe a child will be taken from Australia

If an aggrieved person is worried that a child may be taken from Australia, they can:
  • lodge an objection with the Department of Foreign Affairs and Trade to prevent the other parent taking out a passport in the child's name or including the child's details on their own passport. A passport cannot be issued to an unmarried person under 18 years of age unless the applicant supplies authorities with the written consent of every person entitled to give it under Federal, State or Territory law or, alternatively, a copy of an Australian Court order permitting the applicant to leave Australia;
  • apply to the Court for a child to be placed on the Family Law Watchlist. Once the application has been filed with the Court, the applicant can forward the sealed application to the Australian Federal Police and complete the Family Law Watchlist Request Form providing details of the child and person who has them and place the child on the Watchlist temporarily until the Court has an opportunity to consider the matter. Forms may be subject to change and it is prudent to contact the Australian Federal Police and/or check their website to confirm what must be completed in order to place the child on the Watchlist.

International abduction of children

Hague Convention

Children may not be taken overseas without the consent of both parents, or a Court order. If a child has been taken overseas without the knowledge or consent of a parent, or retained overseas for a period longer than consent was given, there are steps that can be taken to have the child returned to Australia.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). If a child is taken to a country that is also a signatory to the Hague Convention, the child will usually be returned to Australia. Under the treaty, a child must be returned to the home country unless the parent seeking the return has not actually had contact with the child for some time, there is a grave risk that the child would be harmed if returned, the child objects to the return and is an older child, or if the child has been removed from their home country for more than a year and is settled in the new environment.

Under the treaty, it is not necessary for the person who lost the child to have had a parenting order at the time of the abduction. It is only necessary that the child usually lives in the country from which they were taken, and that the person who lost the child has a legal right under the law of that country to determine where that child may live. The legislation automatically gives these rights to each parent on the birth of a child without a parenting order.

The Federal Attorney-General provides legal and financial assistance with applications and return of children to Australia.

Non-convention countries

Many countries that are not signatories to the Hague Convention (including some Pacific Island countries, some of Australia's neighbours in Asia, and some African countries) are still reciprocating jurisdictions for the purpose of enforcing Court orders. Australian parenting orders may be registered in these countries. The orders should then be enforced and the child ordered to return to Australia. The Federal Attorney-General's Department may provide legal, financial and practical assistance to track down abducted children to these and other countries.

Prevention

As with most things, prevention is far better and easier than retrieving a child from overseas. When overseas abduction is a risk, the child should be put on the Watchlist kept by the Australian Federal Police. Any child on the list will be stopped as they pass through customs before boarding an airplane or ship.

The Australian Passports Office has a list of children to whom they will not issue a passport. If the child does not have a passport already, any child at risk should be placed on the Child Alert list in addition to the Watchlist. Only a person with parental responsibility of the child can have the child placed on this list.

If the child already has a passport, then it should be kept locked away if possible. If the child is eligible for a passport from another country, the consulate or embassy of that country should be contacted to determine what procedures that country may have to prevent the overseas abduction of children.

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