Frequently asked questions with Children's Issues in Family Law?
Sometimes when parents separate, they need the asisstance of the Court when they are unable reach an agreement in regards to the parenting of their children. In making decisions regarding parenting disputes, the Family Law Act requires a Court to regard the ‘best interests' of the child as the most important consideration. Parents must also use this principle when making parenting plans. When you first meet your lawyer, you will be given information on what consistutes "the best interests of the child" in the eyes of the law.
Whether you need simple one off advice, or assistance through complex legal cases, we offer personal, professional service to help you through this time.
What happens if I cannot reach an agreement with my former partner/the other parent about parenting arrangements?
When you cannot reach an agreement about parenting arrangements, you may need the assistance of the Family Court. Before making an Application to the Family Court, you are required to participate in Family Dispute Resolution (Mediation) and obtain a certificate. This is because you are expected to attempt to resolve the parenting arrangements outside of the Family Court unless an exemption applies. In certain circumstances (for example, where family violence is a concern) you can apply to the Family Court for an exemption from participating in Family Dispute Resolution.
We agree about the parenting arrangements for our children, how do we record this?
An option may be for you and your former partner/the other parent to enter into a Parenting Plan. A Parenting Plan is a written agreement, signed and dated by both parents. The other option is for you and your former partner/the other parent to apply to the Family Court for Orders, by consent, in the terms of the agreement. Once Orders are made, you and your former partner/the other parent have obligations and there are consequences if you breach those obligations.
What can I expect if I need to go to Family Court about my children?
If either you or your former partner/the other parent makes an Application to the Family Court regarding parenting arrangements, the first Court Hearing you will need to attend is a Child Related Proceedings Hearing. If there are risk issues, such as mistreatment of the children, a Family Consultant will assist the Family Court at this Hearing. Following this, you may be required to attend multiple Hearings. At each Hearing, the Family Court will provide you with information regarding what you need to do before your next Hearing.
If it is necessary for final Orders to be determined at Trial, interim Orders (temporary) are usually made in relation to the care of the children until you can have your matter heard at Trial. At Trial, you will have an opportunity to state your case, submit your evidence and test the evidence of your former partner/the other parent.
What time will be determined by the Family Court for me to be with my children?
This depends on several factors, such as the children’s age(s), previous living arrangements, any mistreatment of the children, any other risk issues, capacity of each parent to provide for the children and communication between the parents about the children. The Family Court has several factors that it is required to consider when determining the best interests of the children. In addition, the Family Court will consider if the arrangements are reasonably practicable.
How do I protect my children if I need to go to Family Court?
There are some basic rules that you can follow:
Do not act like everything is fine. You are allowed to talk to the children about the separation. Ideally, it is best to do this with your former partner/the other parent. Explain to your children in an age-appropriate manner that, although some things will change, you still love them and will both be there for them.
Make sure the children have appropriate support. Be aware that your children may want to talk to someone that is not you, and the school Chaplain or counsellor is an appropriate neutral third party that can assist. Otherwise, Anglicare and Relationships Australia have some affordable group sessions where your children can meet other children going through the same thing and talk about their experiences.
Ensure that you have appropriate support. These times can be stressful, and to take care of your children you need to take of yourself. See a counsellor for this kind of assistance, and if the first one does not feel right, then find one that does. Different counsellors use different techniques, so it may take you some time to find the right one.
Be a role model. This is the most important rule, every action taken in the presence of your children has consequences. The way you act during the relationship breakdown will set an example of how your children will understand relationships. Think carefully about what you say and do in front of the children and the type of relationship you want them to have with your former partner/the other parent.
And lastly, remember this time does not last. In the short to medium term, it can sometimes feel as though there is no way out, but the pain fades over time and you will be left with the good memories and it is important to appreciate those with your children.
I think my former partner/the other parent is going to move overseas with the children without my knowledge, what can I do?
If you think that your former partner/ the other parent is going to move with the children without your knowledge or consent, you need to obtain urgent legal advice. By doing this, you may be able to put in place measures to prevent the children from being removed from Australia.
If you are concerned that your children are at risk of this, please contact us urgently on (08) 9386 5200, and we will prioritise your matter.
What if I do not let my former partner/the other parent know and I move with the children?
If you move without the knowledge of your former partner/the other parent, there is a risk that they may make an Application for a Recovery Order or an Application in accordance with the Hague Convention on the Civil Aspects of International Child Abduction.
In the event you are required to return with the children to where you moved from, this can be very stressful for both you and the children and expensive for you. Your actions may also have a detrimental impact on the parenting arrangements moving forward.
What if it is difficult to contact the other parent because they are not involved in the children’s lives, do I still need their consent?
Where the children live is a major long-term decision and if an agreement cannot be reached, Family Court proceedings are required. The relationship and level of involvement that your former partner/the other parent has with the children is a factor which will be considered in determining if the move is in the best interests of the children. However, you cannot rely on this to avoid obtaining the consent of the other parent. If it is difficult to contact the other parent, there are usually options available to you to be able to locate them with and without the Family Court’s assistance.
How do I get a Recovery Order?
There are different processes and procedures that need to be followed when applying for a Recovery Order, depending on if there are Family Court Orders or Family Court proceedings. If there are no Family Court Proceedings or Family Court Orders, you may still be able to apply for a Recovery Order.
I am a grandparent, am I able to apply for a Recovery Order?
Yes, however, the Family Court will only be able to make a Recovery Order if you have Parental Responsibility or parenting Orders for the children to live with you, spend time with you or communicate with you.
I have no idea where the children are, what can I do?
There are options available to you with and without the Family Court’s assistance. For example, it may be appropriate for you to give instructions for skip tracing to locate the whereabouts of your former partner/the other parent. Otherwise, the Family Court can make Orders for governmental departments to release information regarding the children’s location, or for you to publish details and photographs in the media.
What happens if I contact the Department of Child Protection and Family Support regarding my concerns for my grandchildren?
If you report your concerns to the Department it is possible that the this might lead to the Department making a protection Application in the Children’s Court. This is different to an Application for Orders in the Family Court for your grandchildren to remain in your care. The Children and Community Services Act 2004 (WA) is the law that applies in Western Australia, when the Department is of the view that a child is not safe living with their family or that a child’s family needs extra support to make a child safe. The Department has the power to support families to look after their children, or to remove children from their parents if it seems necessary for their safety and welfare, or if they are at risk of harm. This is known as a “Protection Order”.
There are proceedings in the Children’s Court regarding my grandchildren, am I able to make an Application to the Family Court for Orders for my grandchildren to live with me?
Unless the Department agrees, or the Family Court Orders come into operation when the child is not in the care of the Department, the Family Court will not make Orders for the children to live with you when there is an unfinalised application for a Protection Order for the child to be in the care of the Department. Family Law is different to Protection and Care law, so it is important that you receive advice regarding this before making an Application to the Family Court or contacting the Department.
I just want to spend time with my grandchildren, but my son or daughter won’t let me, what can I do?
As a grandparent, you do not have an automatic right to see your grandchildren. However, if it is in the best interests of your grandchildren that they continue to have a relationship with you and, you cannot reach an agreement with the parents regarding this, you may be able to make an Application to the Family Court for Orders in relation to your time with your grandchildren.
What does the Family Court look at if I make an Application for time with my grandchildren as a grandparent?
The Family Court has several factors that it is required to consider when determining if time with you is in the best interests of your grandchildren, such as the likely effect of any changes in your grandchildren’s circumstances, previous living arrangements for your grandchildren with you, and likely effect of your grandchildren being separated from you. In addition, the Family Court will consider if the arrangements are reasonably practicable.
We have an agreement for our child support, are we able to we record this?
Yes, the Agreement can be recorded in a Child Support Agreement. The Child Support Agreement can be registered with the Child Support Agency and replace an assessment. There are 2 types of Child Support Agreements, a Limited Child Support Agreement or a Binding Child Support Agreement.
What if we agree on a lump sum payment being made for child support in our Child Support Agreement?
If a lump sum payment is paid in accordance with a Binding Child Support Agreement, the amount must be equal to or exceed the current annual rate of child support payable under an assessment. The amount can then be credited against 100% of the annual child support liability for each year. Once the lump sum has been credited in full, the liable parent will need to pay their regular child support payments, in accordance with an Assessment.
I have been contacted by the Child Support Agency about paying child support, what happens if I do not pay it?
You have a duty to support your children financially. The Child Support Agency has certain enforcement powers to collect child support from you, if required, by issuing written notices. They are not required to involve the Court.
I do not agree with the assessment that the Child Support Agency has provided, what can I do?
There are options available to you, such as applying for a change in assessment. There are several reasons why it may be necessary for you to make this Application, including where the Assessment is unfair because the other parent’s income, property and financial resources has not been properly considered, or because you have already paid or transferred money, or property to the other parent for the benefit of the children.
You are required to comply with certain timeframes to make this Application, so it is important that you seek legal advice as soon as possible.
What does it mean for me to adopt a child?
By adopting a child, you are receiving full parental responsibilities for that child as if you have had that child from birth. This means that the birth parents will no longer have any responsibilities and cannot make any claims in relation to your child at a later date.
What is the process involved in obtaining an Adoption Order from the Family Court?
This depends on the circumstances in which you are adopting a child. There are certain procedures and processes that need to be followed before making the Application to the Family Court, depending on whether you are adopting a child from overseas, your step-child, or a child that you have raised who is now an adult.
Do I need the consent of the birth parent to adopt a child in Western Australia?
You would be required to obtain the consent of the birth parent in Western Australia to adopt a child, unless it is appropriate for you to apply for an Order that you do not require the birth parent’s consent. For example, you are unable to find the birth parent or the birth parent may have ill-treated the child.
In Western Australia, who decides if the children live with me or my former spouse?
If you and your former spouse are able to agree on the issues surrounding the children, then you and your former spouse will make the decision. If you require some assistance to reach an agreement with your former spouse, you can arrange to attend family dispute resolution or participate in the collaborative law process. If the children’s issues are contested then either you or your former spouse will need to apply to the family court for a third party (a magistrate or a judge) to make the decision. Before you can apply to the family court, you are required to obtain a certificate from a family dispute resolution practitioner, unless an exemption defined by the law applies. The same applies for your former spouse. Keep in mind, that in Western Australia, the Family Court may make an order for you and your former spouse to attend family dispute resolution/mediation involving disputed issues surrounding the children; therefore, even if you obtain a certificate from a family dispute resolution practitioner without participating in family dispute resolution/mediation, you may be required to participate in family dispute resolution/ mediation later on. This is not true of every contested case and in some cases; the Family Court may not order you and your former spouse to engage in family dispute resolution/mediation if specific facts are present i.e. Domestic violence.
How much will child support in Western Australia cost?
The cost of your child support varies because it is calculated using a formula that takes in consideration the costs of raising children, the income of you and your former spouse, and the percentage of time that you and your former spouse care for the children. If you are having issues with child support, such as your former spouse is refusing to pay you child support, we recommend that you contact the child support agency to assist you in dealing with this. If you and your former spouse agree on the cost of child support and you want to formalise this, we recommend that you attend a consultation with a family lawyer. Keep in mind, that if you retain a family lawyer to settle your financial issues and/or your children’s issues, the issue of child support may not even arise. If you want the cost of your child support included in the terms of your settlement, you should specifically instruct your family lawyer of this. If you want to learn more about your choices for child support, visit this website https://www.humanservices.gov.au/customer/subjects/your-choices-separated-parent. Otherwise, to learn more about the Western Australian guidelines for the costs of child support, click here
What are the typical 6 steps involved in resolving parenting disputes?
There are typically 6 steps involved in resolving parenting disputes.
However, there are several factors that can influence how many Hearings you may have or the length of time that it will take for you to progress through the steps. We will, as far as possible, try to achieve a resolution for you, without you needing to attend a Trial but this is not always possible.
We will also try to see if issues can be resolved by agreement, which may alleviate the need for Court proceedings altogether.
Family Dispute Resolution
Applying for a parenting order
First court appearance
The Court Order
For more information regarding your children and your family law matter, please contact us.
What is Family Dispute Resolution (mediation)?
Before commencing a child related proceeding in the Family Court, you must attempt to negotiate a settlement outside of the court. This is called Compulsory Family Dispute Resolution (mediation). In certain circumstances (for example, where family violence is a concern) you can apply to the court for an exemption from attending Family Dispute Resolution.
What is a Parenting Order?
If an agreement is reached through the mediation process, you and the other party may enter into a Parenting Plan or apply to the Family Court for a Consent Order. If no agreement is reached, then either party may make an application to the Family Court for a Parenting Order. At this stage, you should engage your lawyer to give you advice on the resolution that suits you and your children and to ensure you have the best possible case going forward with your application.
What are the main Court Appearances involved in Parenting matters?
First court appearance
When either party files an application in the Family Court of WA, you will generally be listed for a hearing before a Magistrate and will be assigned a Family Consultant who will attempt to assist you to resolve your dispute.
You may be required to attend multiple hearings before the Court is ready to make a Final Order parenting order. After each hearing, you attend the Court will provide you with information regarding what you will need to do before your next Court appearance. The Court may make interim (temporary) orders (if they are sought) which are legally binding, but will not become final orders unless both parties and the Court agree. These are particularly important in instances where a child is being withheld by a parent or is being mistreated.
The Trial occurs when the Court is ready to decide the Final Order. The Court will provide you with the opportunity to state your case and submit evidence. It is vital that you have presented an accurate well-prepared case prepared by your Lawyer. At the conclusion of the Trial the Court will make a Final Order for your case.
What is a Court Order?
A Court Order is a legally binding document. You can apply to the Court to have the Order enforced if someone breaches it. From here you have obligations and consequences for breaching those obligations.
For more information regarding your children Family Court Orders, please contact us.
What is a Binding Child Support Agreement?
A Binding Child Support Agreement allows Parents to make an agreement about child support payments after the breakdown of a relationship. You must get legal advice from a registered legal professional before you make a Binding Child Support Agreement. This is so you know what you’re responsible for in the agreement before it is made. Butlers Lawyers can help you negotiate an agreement with the other parent. We then provide a legal certificate which is attached to the agreement and will lodge this in draft form so that the Department of Human Services can be satisfied that it enforces the legal requirements, meets the needs of both parents and most importantly, can administer any clauses if the parents’ circumstances change.
The Department of Human Services won’t accept your agreement without a valid legal certificate.
If you want a lump sum agreement, you must get a child support assessment; You don’t need a child support assessment to make any other type of binding agreement.
A lump-sum payment can be:
the value of a transferred asset
The amount must be equal to or greater than the annual child support rate. This is then credited against your child support rate each year until the credit runs out. Once the lump sum has been used up, the paying parent will need to pay their regular child support payments in line with the child support assessment or agreement.
For assistance in preparing a Binding Financial Agreement, please contact our Legal Team.