Separation and divorce can be a confusing and traumatic time for both you and your children, especially if the children see their parents struggle to resolve issues about where the children should live and how much time they should spend with each parent.
We understand that few, if any, things in life are more important to you than your children and their wellbeing. We also understand that after a separation you are often vulnerable, emotionally traumatised and are concerned for the future.
The ‘Best Interests’ of the Child
The rules governing the Family Court in respect of children require that the Court focus on the rights of the children rather than those of their parents.
The term ‘best interests’ of the children is widely known but rarely understood. In law, this phrase has a very specific and complex meaning. The Family Court considers the best interests of the child to be paramount. However there is a presumption that it is in the best interests of children for their parents to have “equal shared responsibility”.
This does not mean that it is automatically in the best interests of children to spend equal time with their parents. What it does mean is that parents should have meaningful involvement in the lives of their children.
When making arrangements for children, you will need to consider a number of significant issues such as:
- Where the children will live;
- How their time will be divided between the households;
- What the parenting arrangements will be;
- Who will look after them after school;
- Where they will spend holidays;
- What arrangements need to be made for things such as schooling, health care, sport or extra-curricular activities; and
- How much time the children will spend with significant people in their lives such as grandparents and cousins.
Despite the best efforts of both parents, sometimes the only option is to file an application at the Family Court.
The Family Court will look at the best interests of the children and will make Orders relating to your children.
Just because you file an application at the Court, it does not automatically follow that you end up at trial. This is because:
- Only a small percentage of matters proceed to trial;
- The Family Court is focused on encouraging parents to mediate and settle matters out of the Courts;
- The time from filing an application for final parenting orders to a decision after trial is likely to be a matter of years rather than months; and
- Trials are very expensive in terms of emotional and financial cost.
Consent Orders and Parenting Plans
We understand that many people are reluctant to engage in the legal process, especially if they have reached an agreement in respect of the children.
The legal process can be expensive and emotional so it is important to be cautious in your approach. In determining whether you need to do anything else you may wish to consider the following:
- Is your agreement verbal or in writing?
- In your agreement binding by law?
- If your former spouse or partner breaches the agreement, what will happen?
- What happens if your former spouse or partner remarries or has a child with someone else?
- Will you be able to agree on future schools, medical treatments and interstate or overseas holidays?
While many separating parents start out with the best intentions, over the 18 years of your child’s life, many things can change. The only person that can assess if you and your former spouse or partner will be likely to reach an agreement in the future is yourself.
If you wish to formalise the agreement between you and your former spouse or partner in a quick and cost effective way (relative to the cost of litigation), Balmoral Legal can formalise the agreement between you and your former spouse or partner so that it can be binding and enforceable in law.
Unlike Consent Orders, Parenting Plans cannot be enforced by the Family Court of Western Australia. However, a Parenting Plan can be relatively easy to file in the Court as binding and enforceable Consent Orders.
If you are looking to speak to a family lawyer in Perth about parenting issues, please contact our office to speak to an experienced solicitor.