Who will have responsibility of the children?
The simple answer is that the court will only deny a parent access to their child, if it is not in the best interest of the child to see that parent.
Things you need to consider in a parenting arrangement are:
• who the child will live with;
• how much time the child will spend with each parent and with other people, such as grandparents;
• how the parents will make major life decisions for the child;
• how the child will communicate with a parent they do not live with, or other people such as grandparents;
• any other aspect of the care, welfare or development of the child.
The Family Law promotes “the best interest of the child”. What this means is, rather than the focus being on a parent’s right to know their child, the focus is on the child’s right to a meaningful relationship with both parents and shared parental responsibility.
In the event of a split between parents, there is a presumption that both parents will have equal shared responsibility. This does not always mean that children will spend equal time with both parents, but does mean both parents should have the ability to make important decisions in relation to their child, together. This remains true regardless of changes in the parent’s relationship, except where a dispute leads to a court order stating otherwise.
What are the best interest of a child?
In Western Australia, the court looks to Section 60C of the Family Law Act 1975 (married couples) and Section 60CC of the Family Court Act 1997 (de-facto couples), to determine what is in the child’s best interest. There are two primary considerations and a non-exhaustive list of additional considerations.
The primary considerations are the major factors to consider in reaching a decision on what is best for the child.
1. The benefit to the child to have a meaningful relationship with both parents;
2. The need to protect the child from physical or psychological harm from being subject or exposed to abuse, neglect or family violence.
If there is no risk of harm to the child, there is an assumption that the child has an equal right to a relationship with both parents.
Where there is evidence of a risk, the parent who does not pose that will be the preferable parent. However, the risk of harm alone does not prevent a child from seeing their parent, there are numerous arrangements, including supervised visitation, which can allow the relationship to continue. A principle which underlies family law legislation, is that a child has the right to spend time with both parents. Because of this, where it is possible and safe to do so, the court will arrange a way for this to happen.
The list of additional considerations is non-exhaustive, meaning that anything which can be relevant to the best interest of the child, can be considered. The full list can be found in the Family Law Act s60CC(3), generally these include:
(i) The views of the child (dependant on his/her age and maturity);
(ii) Relationship of the child with the parents and other people (such as grandparents);
(iii) Extent to which the parent has taken steps to be involved in the childs life;
(iv) The effect of the parenting arrangement on the child;
(v) Capacity of the parent to care for the child;
(vi) History of domestic or family violence;
(vii) Practicalities and stability of the arrangement.
Reaching an agreement: parenting plans vs parenting orders
There are two ways to come to a child custody arrangement (1) parenting plan; and (2) parenting orders.
1. Parenting Plans
A parenting plan is a voluntary agreement that covers the day to day responsibilities of each parent, the practical considerations of a child’s daily life, as well as how parents will agree and consult on important long-term issues about their children. The kinds of things included in a parenting plan are; where the child will live, where they will spend holidays, how much time they will spend with each parent, and any other matter relating to an aspect of the care, welfare and development of a child.
• Most cost effective method.
• Flexible: it can be changed at any time as long as both parents agree.
• Other persons, such as grandparents or step parents can be included in the plan.
• Can ask the court to make an order in terms of that plan, making it legally enforceable.
• Not legally enforceable.
• if parents end up in court, compliance/non-compliance with the plan may be considered.
2. Parenting Orders
A parenting order is the result of the court deciding how parental responsibility with be allocated, in the best interest of the child. It is the preference of the court that parents work together to come up with an arrangement without its interference. What this means, is that all other avenues should be exhausted before a parenting order is made. Even in circumstances where it is not possible to reach an agreement, parents are encouraged to have some issues sorted out before they get to court.
Before an application for a parenting Order can be made to the court, an attempt to reach an agreement must be made through attending mediation. This is proven by obtaining a Certificate of Attendance (Section 60I Certificate) which is presented to the court.
Mediation is provided by Family Dispute Resolution Providers, who can be found on the Family Relationships website. It should be noted that these services are extremely busy and it can take time to be seen. There are private services available, however these can be expensive.
• Legally enforceable
• Clear and stable
• Inflexible: difficult to change
• Expensive, likely to require legal representation
There can be severe penalties where a parent refuses to abide by the parenting order. This can be both an advantage and disadvantage depending on what outcome of the parenting order you receive.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.