The information contained in this page, and throughout this website, is general in nature. It is current at 30 June 2019 but may have been subject to change since that time. It is not intended to be, and should not be construed as, legal advice. Every case is different and there may be factors which affect the outcome or advice in your particular case. We recommend that you contact us before taking any steps regarding the issues raised in this website.
Parental Issues
Family Dispute Resolution
Except in cases of urgency, a parent cannot apply to the Family Court for parenting orders unless they have attended family dispute resolution (“FDR”).
FDR is a mediation process where parents work with a family dispute resolution practitioner (“an FDRP”) to attempt to resolve their parenting dispute. FDRPs are mediators specifically trained to deal with parenting issues, and to identify cases which might not be appropriate for FDR, such as where there may have been domestic violence or abuse.
Typically, FDRPs will meet with each party individually beforehand for an intake session. At this point, they will ‘screen’ a matter to determine whether it is appropriate for FDR, and how that FDR should be run, for example, whether the parties should be in separate rooms, have support people with them and so on.
If parents are able to reach an agreement at FDR, they would usually enter into a parenting plan, or work with their lawyers to document their agreement in consent orders.
If parents are not able to reach an agreement at FDR, the FDRP will issue them with what is known as a ‘60I Certificate’. This 60I Certificate must be filed by any party seeking parenting orders in the Family Court as proof they have engaged in the FDR process.
In some cases, such as where there may have been domestic violence or abuse, the FDRP will determine that the case is not appropriate for FDR. In those circumstances, the FDRP would usually issue a 60I Certificate without formally convening the FDR.
Best Interest of the Child is Paramount
When making any decisions relating to children, the Court must treat the best interest of the particular child or children as the paramount consideration.
There are a number of factors that the Court looks at when determining what is in the child’s best interest. The primary considerations are:
The need to protect the child from being exposed to family violence, abuse or neglect; and
The benefit to the child of having a meaningful relationship with both parents.
Additional considerations include, but are not limited to:
The child’s views, the weight attributed to which will depend upon the child’s age and level of maturity, the strength of the views and reasons for them (including whether they have been influenced by one or both parents);
The nature of the child’s relationship with their parents and any other people such as grand-parents;
The extent to which each parent has taken opportunities to be involved in making decisions about the child, spend time with and/or communicate with the child;
The extent to which each parent has fulfilled their obligations to maintain the child;
The likely effect of separating the child from one of their parents or any other child or grandparent they have been living with including their siblings;
The capacity of the child’s parents or other persons to provide for the physical, intellectual and emotional needs of the child;
The attitude to the child and responsibilities of parenthood demonstrated by the parents;
Any family violence involving the child or a member of their family; and/or
Any other factor the Court considers is relevant.
Parental Responsibility
What is Parental Responsibility?
Parental responsibility is a term used to describe all of the responsibilities parents have in relation to their children.
In the absence of Court Orders, parents have ‘joint parental responsibility’. In other words, each parent can make major long-term decisions about their children, such as schooling, major medical procedures, etc. This is based upon the assumption that whilst parents are still on good terms, they will consult with each other in relation to the major long-term decisions affecting the children.
When parents get to the point where they require the Court’s assistance though, the first step the Court often takes is to decide whether it should make an order for ‘equal shared parental responsibility’ (“ESPR”).
What is Equal Shared Parental Responsibility?
An order for ESPR requires the parents to consult with each other regarding, and decide jointly, any major long-term decisions about their children. If they cannot, they would need the Court to make a decision about the issue.
The common issues arising here include the child’s schooling, name, religion, medical procedures and any significant relocation of the child’s residence. These issues are discussed in more detail under the relevant links.
Before making a parenting order, the Court first deals with the issue of parental responsibility. Save for circumstances where there is reasonable grounds to believe a party has engaged in violence, abuse or neglect, there is a presumption that it is in the child’s best interest for an order for ESPR to be made. That presumption can be rebutted with evidence showing it would not be in the child best interest.
Care arrangements
How does the Court decide what care arrangements should be in place for children?
As with any decision about children, the Court is guided by the principal that the children’s best interests are the paramount consideration.
The pathway the Court takes when determining what care arrangements would be in the children’s best interests depends to some extent upon whether there has been an order for equal shared parental responsibility.
If an order for ESPR is made, the Court must first consider:
Whether an order for the child to spend equal time with both parents would be:
In the child’s best interests; and
Reasonably practicable;
If not, whether an order for the child to spend substantial and significant time with both parents would be:
In the child’s best interests; and
Reasonably practicable.
What is meant by “substantial and significant time”?
Substantial and significant time is broadly defined as:
During the week, weekends and holidays;
That allows the parent to be involved in the child’s routine; and
On occasions which are important to the child and the parent such as birthdays, Christmas, Father’s Day, etc.
Some examples of ‘substantial and significant time’ arrangements might be where children live with their mother, and spend time with their father each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday. The options for this though are endless, and may well be quite different from one family to the next, depending upon the parents and/or the children’s other commitments.
What if there is no order for Equal Shared Parental Responsibility?
If the Court declines to make an order for equal shared parental responsibility, it would usually still consider whether equal time or substantial and significant time is in the child’s best interests, and practicable. If not, the Court is at large to make such order it considers appropriate, having regard to the child’s best interests as the paramount consideration.
Do parents have a right to spend equal time with their children?
The short answer is no. The legislation in Australia is based upon promoting the child’s best interest (as opposed to the rights of parents). Save for cases involving serious violence or abuse, these are usually promoted by them having a meaningful relationship with both of their parents. But this does not necessarily mean ‘equal time’.
While the Court will typically consider an equal shared care arrangement, there are often other factors which mean it is not in a particular child’s best interest, or not practicable. Common examples of this include:
Where one party works full time, and is not available to look after a younger child;
Where the child is still an infant or a toddler, and has a particular attachment to one parent;
Where children have a lot of sports and schooling commitments, and need a ‘base’ so they can stick to their routine; and
Where children are older and mature, and have strong views about their living arrangements.
Domestic Violence, Abuse or Neglect
Domestic violence is, unfortunately, quite prevalent, particularly during a relationship break down. Every relationship has its own dynamics, and there are almost always disagreements around relationship breakdown. While most people are aware that physical violence such as punching, slapping or pushing (or threats of the same) are clearly a form of violence, more subtle abuse can also have long term effects. Examples include one party isolating the other from their friends and/or family, repeated name calling or put downs designed to undermine a person’s self-esteem, or the manipulation or alienation of children against one party.
There are services available for those who are or have been in a relationship involving domestic violence and include:
With regards to the practical effects of violence or abuse in the family law context, the major legal consequences include as follows:
Violence or threats of violence may result in one party obtaining a police order and/ or family violence restraining order (FVRO) against the other party.
As mentioned above, in a parenting case, if the Court has reasonable grounds to believe a party has engaged in violence, abuse or neglect, the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility does not apply. The effect of this is that if there is no order for equal shared parental responsibility, the Court is not mandated to consider whether an ‘equal time’ or ‘substantial and significant time’ arrangement is in the child’s best interest and reasonably practicable.
In extreme or ongoing circumstances, in property settlement proceedings, the Court may award the victim of domestic violence a greater share of the asset pool on the basis that the perpetrator’s conduct made the victims contributions more difficult. There are limited cases whether the Court has done this though, and they are limited to situations where the violence has been ongoing.
Drug and/or Alcohol Abuse
Drug and/or alcohol abuse are also relatively common around a relationship break down. They are also often linked to domestic violence, as many perpetrators are more likely to be abusive while under the influence of alcohol and/or drugs.
Many people enjoy a drink or two, and may even drink to excess on occasion. It is when this drinking begins to change a persons mood, affects their ability to function, or affects their health, that it can become particularly problematic.
When it comes to illegal drugs the Court has a zero tolerance. The use and abuse of illegal drugs is typically viewed by the Court as a risk issue in parenting matters and can itself be a form of abuse.
If a party raises illegal drug use as an issue in parenting proceedings, and can point to some evidence about it, the Court will often order one or both parties to undergo drug testing. Tests are now relatively non-invasive, and can be taken from urine, blood or a person’s hair. For this reason, it is usually difficult to point to a sound reason to resist undergoing such tests.
Grandparents
In Australia, grandparents are able to make applications in relation to a child or children. As with any parenting order, the best interest of the child will be the paramount consideration.
Grandparents are often involved in proceedings if one or both of the parents are not able, or are not suitable, to care for the children. Common examples include where there are drug or alcohol issues.
While grandparents become involved in the proceedings in the above circumstances relatively frequently, what is less common are proceedings where a parent has had a falling out with a grandparent, although there is no legal impediment to this occurring.
Telephone / Skype contact
Another common issue arising in the Family Court is if, and when, children are able to communicate with the parent with whom they are not living. This is routinely included as part of the orders sought by a parent seeking other parenting orders, but can also be sought as a stand-alone order, for example, if a parent lives in another country, works on a ‘fly in, fly out’ basis, or is incarcerated.
As with all parenting orders, the paramount consideration is the child, or children’s’ best interests. One of the primary considerations the Court considers when working out what is in the child’s best interest, is the benefit to the child of having a meaningful relationship with both parents. It follows that unless such communication may be harmful to the child, for example if there is a history of abuse, it is usually found to be in the child’s best interests to be able to regularly communicate with the other parent.
Having found that, the timing and frequency of the calls is usually a question of practicality, balancing the child’s commitments with that of both parents.
Schooling
A common issue which often arises between separating parents is what school the children are to go to. As this is an exercise of parental responsibility in relation to a major long-term decision:
If there is an order for equal shared parental responsibility, parents must make this decision jointly; or
If there is no order for equal shared parental responsibility, there is no requirement to decide this issue jointly, but parties should nonetheless consult with each other and make a genuine effort to agree. A party who changed the children’s schools without consulting the other party would usually be the recipient of heavy criticism from the Court.
As with all parenting orders, the child’s best interest is the paramount consideration the Court must take into account when deciding which school a child or children should attend. Relevant issues include, but are not limited to, the performance of the school, whether the child has friends or family attending, proximity to the parties’ houses and, depending upon the child’s age and level of maturity, their view.
Whether or not a child should attend a particular school is a separate issue from who should meet the cost of the school. For more information, please refer to our section on child support.
Relocation
Another relatively common dispute between parents in parenting cases arises where one party wishes to move with the child or children to a place that would make it more difficult for them to communicate or spend time with the other parent. These disputes are often referred to as “relocation cases”.
Relocation can occur ‘intra-state’, ‘interstate’, or ‘internationally’. Any change of a child’s home that makes it significantly more difficult for them to communicate or spend time with the other parent is a major long-term decision. In some cases, a move of 20 kilometres could be a relocation. Because such a relocation is a major long-term decision:
If there is an order for equal shared parental responsibility, parents must make this decision jointly; or
If there is no order for equal shared parental responsibility, there is no requirement to decide this issue jointly, but parties should nonetheless consult with each other and make a genuine effort to agree. A party who moves a child’s home any significant distance without consulting the other party would usually be the recipient of heavy criticism from the Court.
Generally speaking, if a party wishes to move with a child and cannot get the agreement of the other parent, they should apply to the Court. If they don’t, there is a real risk the Court may order that the child be returned.
After an application has been made to the Court, like any decision relating to a child, the primary consideration would be the child’s best interests. In addition to the matters previously mentioned with regards to how the court determines the child’s best interests, common factors which assume importance in relocation cases are:
The likelihood of each parent, and their side of the family, promoting a relationship between the child and the other parent after the relocation has occurred;
Where the parties’ and the children’s family and other support networks are based;
The connection the parties and the children have with the competing destinations; and
The reason for the relocation – While neither party needs to show compelling reasons either way, the reasons for leaving and/or staying will inevitably be relevant.
Relocation cases are notoriously difficult to resolve, as there is often no “middle ground”. The way in which a case is run from the beginning can have a very real impact on the outcome, and the relationship between the parties going forward. It is recommended that you seek legal advice as early as possible if this situation may relate to you.
Documenting a parenting agreement
Parenting agreements can be formally documented in two broad ways.
The first is in a parenting plan. This is essentially a written agreement between the parties, which is signed and dated. It is not enforceable by the Court, but is something the Court will take into account if there is a subsequent break down in the agreement.
The second is by consent orders. This is where parties ask the Court to make agreed orders regarding the arrangements for their children. Consent orders are enforceable as if the matter had progressed to trial, and the court had made orders about the children.
Enforcement of parenting orders
Someone contravenes a parenting order where they, without reasonable excuse, intentionally fail to comply with it, or make no reasonable attempt to comply with it.
The sanctions the Court will likely impose upon someone who contravenes a parenting order will depend upon the seriousness of the breach, and whether it has occurred repeatedly. These sanctions range from simply ordering ‘make up time’, to imposing a fine, to imposing a term of imprisonment for the most serious and/or repeated contraventions.
What will amount to a “reasonable excuse” depends upon the circumstances. The most obvious example is where one parent reasonably believes that complying with the order might put the child or themselves in danger.
Changing parenting orders
If final parent orders have been made, and a party seeks to change those orders, they would typically need to show there has been a “material change in circumstances” since the previous orders were made. This change in circumstances would usually need to be something that was not dealt with in the previous orders. The rationale behind this is to try to prevent children’s parents, and by extension the children, from being involved in permanent or repeated litigation.
It is not possible to provide a definitive list of changed circumstances which would justify the re-opening of a child-relater case, although some such changes that might persuade the court to revisit the matter include:
One or both parents relocating to a place which might make the previous arrangements impracticable;
A change in the child’s life, such as beginning to attend school, or starting high school (if that was not dealt with in the previous orders);
A change in the child’s views where that child is older and more mature than they were when the previous orders were made.
If the party seeking to change the orders cannot show a material change in circumstances, it is likely the court would decline to revisit the matter.
If you have any questions regarding the issues mentioned above, or family law in general, we’re here to help. Please feel free to contact us to discuss your case and make an appointment to meet with us.
Telephone
(08) 6117 0460
Email
info@fmdlegal.com.au
Our Hours
Mon - Fri 8.30 – 5.00
After Hours by appointment
Address
Level 16, 251 Adelaide Terrace
Perth, WA 6000
Postal Address
PO Box Z5232
St Georges Tce
Perth WA 6000
