Chil­dren to con­sider

Western Suburbs Weekly - - Street Watch - with Si­mon Creek Si­mon.Creek@hhg.com.au

WHEN a mar­riage or de facto re­la­tion­ship breaks down and par­ties sep­a­rate, prop­erty set­tle­ment is of­ten not the only is­sue.

As any par­ent would know, chil­dren are the most sig­nif­i­cant as­pect of any re­la­tion­ship.

It is there­fore vi­tally im­por­tant to ob­tain ad­vice from a fam­ily lawyer about parenting and chil­dren’s is­sues fol­low­ing sep­a­ra­tion.

One key as­pect of any sep­a­ra­tion will be liv­ing ar­range­ments for the chil­dren and ar­range­ments for spend­ing time with both par­ents.

The key fac­tor in all chil­dren and parenting mat­ters is the best in­ter­ests of the chil­dren.

The law takes the view that it will be in the best in­ter­ests of chil­dren to have a mean­ing­ful re­la­tion­ship with both par­ents, un­less hav­ing a re­la­tion­ship with a par­ent/s will ex­pose the chil­dren to a risk of fam­ily vi­o­lence.

Each par­ent is pre­sumed to have “equal shared parental re­spon­si­bil­ity” for their chil­dren un­til they reach 18 years of age.

Equal shared parental re­spon­si­bil­ity means that par­ents must make “ma­jor long term de­ci­sions” to­gether that in­clude the child’s ed­u­ca­tion, re­li­gious and cul­tural up­bring­ing, health and med­i­cal treat­ment and chang­ing a child’s name.

With­out a proper parenting ar­range­ments in place, com­ing to an agree­ment about chil­dren can of­ten be ex­tremely dif­fi­cult.

One of the most cost ef­fec­tive ways of reach­ing agree­ment is by for­mu­lat­ing a “Parenting Plan” via me­di­a­tion.

In fact, the Fam­ily Court re­quires par­ties to at­tempt me­di­a­tion prior to tak­ing any ac­tion in the courts.

Parenting Plans are recog­nised by the Fam­ily Law Act and may be pre­sented to the Court as ev­i­dence of the par­ties in­ten­tions. How­ever, Parenting Plans are not legally bind­ing or en­force­able.

To cre­ate a bind­ing and en­force­able parenting agree­ment, the terms of the agree­ment must be for­malised through fil­ing for parenting or­ders by con­sent in the Fam­ily Court of WA.

A pre­vi­ously drafted Parenting Plan can be very use­ful at this stage in for­mu­lat­ing the pro­posed or­ders. Of course, when a re­la­tion­ship breaks down it is not al­ways pos­si­ble for the par­ties to agree on parenting or­ders.

When that is the case, a par­ent may ap­ply to the Fam­ily Court to make a de­ter­mi­na­tion about the best in­ter­ests of chil­dren and about parenting ar­range­ments.

Once the Fam­ily Court has made or­ders, whether by con­sent or through an ap­pli­ca­tion by one of the par­ties, th­ese or­ders be­come bind­ing and en­force­able.

There are penal­ties im­posed upon a party in breach of their obli­ga­tions un­der th­ese or­ders.

Th­ese penal­ties range from los­ing time with the chil­dren to fines and im­pris­on­ment.

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