Children & Parenting

There are several ways parenting arrangements can be documented, including:

• informal agreements;
• parenting plans;
• consent orders (via a Form 11 Application for Consent Orders); and
• Family Court Orders (once proceedings are on foot).

We can explain the advantages and limitations of each option and help you determine what is most appropriate for your circumstances.

It is usually the first preference to resolve parenting matters through negotiation or mediation without the need for Court proceedings.

Where agreement cannot be reached, or where a parent takes unilateral action to withhold a child, we can provide advice and representation through the Family Court process.

If court proceedings commence, we take care to draft your legal documents to place you in the strongest position to obtain the orders you seek. We can act as Counsel at Court hearings or instruct Counsel based on our close relationship with the same. We can prepare and represent you at Case Assessment Conferences and Pre-Trial conferences and all Court events.

Informal parenting agreement

The parents may agree to use a shared calendar or a web-based parenting application to reflect the spend time arrangements for the child. This provides a useful way of reflecting the various activities for the child without having to verbally communicate with the other parent.

Often shared calendars and parenting applications can be exported and provide a useful source of evidence of:

• the spend time arrangements for the child (which may be provided to the Child Support Agency and used in future Court proceedings);
• the communication and behaviour of the parents; and
• the financial, sporting and medical history of the child.

Parenting plan

A Parenting Plan is an agreement by consent between the parents that is reflected in writing and dated and signed by the parents. A Parenting Plan can also be made between other significant people in the child’s life.

A Parenting Plan can contain whatever the parents want, such as spend time arrangements (including with grandparents and significant others), financial arrangements and how to introduce new partners to the child. There can also be provisions on how to resolve disputes and revise the agreement. This type of agreement can only be entered into by consent and is not legally enforceable (unless it has been historically registered with the Court).

As with informal agreements, Parenting Plans can be useful evidence of the spend time arrangements and each party’s capacity to comply with the agreement reached. However, a Parenting Plan is more detailed and structured than an Informal Agreement. Often, Parenting Plans are formulated by the parties as part of a mediation or alternative dispute resolution process and relied upon in Family Court proceedings and provided to the Child Support Agency.

Parenting Plans generally work well where the parties can co-parent effectively and are compliant with the agreement. The agreement can be practical for a young child because it is likely the agreement will need to be amended every 9 to 12 months as the child ages and circumstances change. Parenting Plans provide flexibility and the ability for the parties to reach agreement to suit the development stage of the child and the parents’ changing work and personal circumstances.

Parenting Plans don’t work for everyone. Parties in high conflict disputes where there are allegations of violence and abuse and a history of non-compliance with agreements should obtain advice (and potentially counselling) before entering into a Parenting Plan. Further, a Parenting Plan is not enforceable in the Family Court, and therefore either party can regularly fail to comply or terminate the agreement. In such circumstances, we suggest you obtain legal advice regarding the agreement and what other options are available in the circumstances.

Application for Consent Orders / Consent Orders / Form 11

If the parties reach an agreement by consent and they want to make the agreement legally binding, they may choose to file a Form 11 Application for Consent Orders in the Family Court. This application is often referred to as a “Form 11” or a “Consent Order”. This requires the parties to complete a structured court form and attach an Order Sought, which both parties sign and date and file in the Family Court. The Court will consider the application and usually exercise its discretion in Chambers and may pronounce a Court Order in the same terms as the Order Sought without the parties attending the Family Court.

The difference between the Consent Orders and the other agreements is that it is not flexible, not easily amended and is legally binding on the parties. Further, a Consent Order has to meet certain legal drafting and form requirements and hence may not include certain clauses contained in a Parenting Plan. Either party to the Consent Order (once and if extracted as an Order) can seek to enforce the Order in the Family Court.

Despite there not being a legal requirement to obtain legal advice before executing a Form 11, it is preferable that both parties obtain legal advice before entering into the Consent Order to ensure they understand the meaning and effect of the orders they are seeking.

When the parties reach an agreement by consent, they usually have much greater control over the co-parenting arrangements for the child. Some common agreements include:

1. parental responsibility/decision making (this relates to long-term decisions for the child);
2. when the child spends time with each parent (time, days and hand over arrangements):
   a. special spend time arrangements such as Mother’s Day, Father’s Day, Birthdays (for the child, parents and significant others), Christmas, Easter/Religious Celebrations/Cultural Days;
   b. school term and school holiday periods (if the child is of school-age);
   c. extended holiday periods for travel;
3. communication (between the child and the parent and between the parents), method of communication (telephone, video-calling, written, web-based parenting applications), the content of communication (relates to the child, medical emergencies, illness of a party and/or the child, access and release of information and/or medical appointments) restraints (drugs and alcohol, relocation, denigrating the other party, posting to social media);
4. other – arrangements concerning the child’s attendance at extra-curricular activities, travel, possession of the child’s passports, personal protection injunctions in Family Court Orders.

Parenting Plans can contain broader and unenforceable clauses that would not be contained in Consent Orders/Court Orders.

The law (the Act) focuses on the rights and the best interests of the child and the responsibilities each parent has towards the child. This can be vastly different from what each parent considers their rights should be.

The Act is drafted to promote a meaningful relationship between the parents and the child. This must be balanced with the primary concern of protecting a child from harm.

The Act specifies a list of additional factors that the Court must consider when deciding what is in the best interest of the child, which includes:

• what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child);
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
• anything else that is relevant to the particular circumstances of the child.

This relates to both parties being involved in, and making joint decisions concerning the long-term care, welfare, and development of the child. Some examples of long-term decisions include, but are not limited to, the child’s:

• education;
• religious and cultural upbringing;
• health (including medical procedures and medicine);
• change of name; and
• living arrangements that make it significantly more difficult for the child to spend time with a parent.

Day-to-day parental decisions are made by the parent who has the care of the child at the time. For example, what the child has for breakfast. While it is preferable to speak to the other parent about what the child is wearing to the schoolbook week parade, this is not a long-term decision and does not fall under the scope of joint decision-making responsibility.

Joint decision-making responsibility is assumed where there are no Court proceedings on foot, and a Court Order has not been made allocating parental responsibility. Once proceedings are on foot, the Court can make an Order for one parent to have sole decision-making on one issue and joint decision-making on all other issues.

The Court must consider if the spend time arrangements are practical and will consider many factors, including but not limited to:

• the distance and time to travel between each parent’s residence;
• the expense of the proposed arrangements;
• the child’s extra-curricular activities;
• the child’s schooling;
• the parent’s responsibility to care for siblings and significant others; and
• the parent/s working arrangements.

Usually, no.

Each party has an obligation to provide the other party with documents that are in their possession and control and are relevant to the dispute.

The obligation to disclose in a timely manner commences at the start of negotiations, is ongoing, and remains until the conclusion of your matter.

Some common examples of disclosure documents provided to the other party include the child’s medical records (depending on their age), evidence about family violence and abuse, text message/email evidence, photographs, diary entries etc.

Disclosure documents are to remain confidential and are not to be provided to third parties save and except to the Court and your legal advisors.

Once the parties have provided full and frank disclosure, the parties should attempt to resolve the dispute in good faith and may choose to:

1. make a formal written offer and attach a Parenting Plan or Consent Order; and
2. engage in verbal negotiations; and
3. engage in Mediation, Mediation Style Conference, and/or other forms of alternative dispute resolution. Unless there are special circumstances, the parties must attend mediation chaired by an accredited family dispute resolution practitioner who can issue a Section 60I Certificate before commencing an action in the Family Court of Western Australia.

By trying to resolve the dispute using the aforementioned strategies, you will be complying with the pre-action procedures before commencing Family Court proceedings. Further, even if the entire dispute cannot be resolved, there is benefit in narrowing the issues in dispute.

If you are unable to reach an agreement by consent, you may choose to commence proceedings in the Family Court seeking parenting orders.

In addition to seeking spend and decision-making orders, it may be appropriate to seek orders for:

1. the appointment of a Single Expert Witnesses (“SEW”);
2. the appointment of a Family Therapists;
3. the appointment of an Independent Children’s Lawyer;
4. subpoenaing information (the child’s school records, medical records, child-care records);
5. seeking a location and/or recovery order to locate and recover the child;
6. placing the child on the Federal Watchlist of the Australian Federal Police to prevent the child from leaving Australia;
7. changing the child’s name where the parties are unable to reach an agreement by consent;
8. relocating with the child;
9. ascertaining the parentage of the child.

If you have proceedings on foot in the Family Court and have received a judgement that is not favourable to you, we can provide you with advice about appealing the decision.