Children to consider
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.