If you separate from your husband, wife or de facto partner and
you have children together, you both have a continuing
responsibility for the care of your children. So what are the
options when it comes to figuring out the care arrangements for the
If you are unable to discuss those options between yourselves,
you are encouraged to attend mediation.
The discussions will include:
who the children live with
when they see the other parent
the specifics of hand-over, such as where it will happen, who
providing for contact by other means (such as phone calls etc)
when the children are with the residential parent
arrangements for special events like Christmas, New Year,
Birthdays, Mother's Day, and Father's Day
arrangements for travel – domestic or international
schooling, religion, and medical care amongst other issues
The level of detail in the agreement will often depend on how
flexible the parties are and how well they communicate after
If the parties can reach agreement on the arrangements for their
children at mediation, the mediator will usually encourage them to
draft and sign a Parenting Plan. However, they do so at their own
risk for one very important reason – enforceability.
If you and your ex agree on the arrangements for the children,
and record this in a parenting plan, what happens if one party
stops adhering to the plan? They might, for example, stop you
spending time with your child. You cannot enforce
We always commend parties for being able to reach agreement on
the arrangements for the children but we strongly recommend that
the agreement/parenting plan is formalised by filing an application
for Consent Orders at the Family Court of Western Australia.
The parties and their lawyers are not required to attend court.
The process merely requires the details of the agreement/parenting
plan to be filed at the Family Court. Assuming they are in the best
interests of the children, the court will make the orders.
This way, if your ex becomes less co-operative (which can occur,
for example, when one party starts a new relationship), you have
the option of asking the court to enforce the agreement.
The Family Court requires, in the absence of urgency or other
reason such as family violence, that all parties attempt mediation
to resolve their issues before seeking its assistance.
If you have attended mediation and have not been able to reach
final agreement, or if the other party refuse to attend mediation
at all, you will be issued with a certificate which will allow you
to file an application at court setting out your proposals for the
future care of your children.
Thereafter, your ex will file their proposal in response and the
matter will progress through the court which will assist you in
your attempts to reach agreement. If that is not possible, it will
make orders based on the best interests of the children.
If one party then fails to comply with the orders, whether
agreed or ordered by the court, the other party can file an
application to enforce the orders. The court can apply a variety of
sanctions to ensure compliance.
The sanctions applied will depend upon the situation and the
nature of the breach but can include paying the other party's
legal costs, paying compensation for lost time with a child, a
requirement to attend a post-separation parenting program, a
community service order, payment of a bond or fine or even
As time passes things might change. One or both of you could
re-partner, you might have more children, your children's needs
might change as they get older. If orders were made by consent, or
by the court, you may both agree to change the orders by consent.
Again, any informal changes not recorded by the Family Court will
not be enforceable.
It is only possible to change orders by consent and have these
changes made into orders of the court where the original orders
provide for this.
However, it is possible to seek an amendment to orders made by
the Family Court, under section 65D(2) FCA.
As you might imagine, the court wants to limit litigation and
therefore it is generally only possible to seek an amendment where
there has been a significant change in the circumstances of the
parties, or a material factor was not disclosed at the earlier
hearing which would justify changing the orders.
This is so even where the parties both agree to a change in the
orders but will also depend on the changes proposed as well as how
long it has been since the previous orders were made.
Whatever you do, you need to remain flexible and reasonable as
far as possible, whilst making sure you safeguard your own position
in case problems crop up further down the track.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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