Talk, compromise and agree

Talk to your partner about how you will care for your children before you separate.  It is imperative that you maintain a line of communication with your partner either directly or through an intermediary such as a relative, friend or counsellor.

When negotiating, both parents should be prepared to compromise their perceived ideal arrangements for the sake of resolving the matter.

The advantages of reaching an agreement are:

• the stress and worry of separation will be kept to a minimum
• greater chance of a constructive on-going relationship with your partner;
• avoid the potentially significant cost, time and anxiety associated with dispute resolution processes;
• retain control over the parenting arrangements.

A parenting agreement can be as simple or as complex as you like. Generally it is best to keep it fairly simple. For practical reasons and for the sake of stability it is often agreed that children will live mostly with one parent and spend the remaining time with the other parent and other significant family members.

Acknowledge and agree with your partner that it is likely the arrangements will need to change over time as your circumstances and the needs of the children change. For example, you could agree to review the arrangements every 2 or 3 years.

Consider formalising your agreement

Once you have reached an agreement you should consider formalising it. The simplest way of doing so is by way of Family Court consent orders. The process is generally quick and straightforward. The Court provides a form for this purpose which requires certain background information about the parties and the children. Annexed to the application is a minute setting the terms of the agreement.

The advantages are:

• the agreement will be clearly documented and binding on both parties; and
• you may include any agreement in relation to property division in the same application.

You don’t have to formalise any agreement regarding parenting matters. Many parents choose to leave their agreed arrangements on an informal basis.

Consider mediation

If required, mediation brings you and your partner together for discussion and resolution of disputes.  Mediation works best if both parties have obtained advice. For many people mediation is an attractive alternative to contested proceedings in the Family Court.

You may wish to consider the mediation services offered by the following organisations:

• CenterCare
• Relationships Australia WA

What if we can’t agree

The Family Court of Western Australia can assist parents to resolve parenting disputes, whether the parents are married or not. An application can be made by either parent or other interested person – eg. a grandparent.

In our respectful opinion, the process offered by the Court is not a particularly effective way of resolving parenting disputes. The Court process should be used as a last resort.

The Court has the power to make orders relating to the care and control of children under the age of 18 years. This includes orders relating to the long-term care, welfare and development of a child (often referred to as guardianship), matters relating to the daily care, welfare and development of a child, such as who the child resides with and when and on what basis they have contact with the other parent, and orders in relation to any specific issues associated with the welfare of a child.

The Court must take the following matters into consideration:

• the best interests of the child are always the paramount consideration
• children have the right to know and be cared for by both parents
• children have the right of contact on a regular basis with both parents and with other people significant to their care
• the wishes of the child (as best the Court is able to ascertain those wishes) will be taken into consideration; however, these wishes will always be seen by the Court in the context of the age and level of maturity of the child

The Court has discretion in these matters; and this brings to mind one of the risks of going to Court in these circumstances – that the Court may impose on you and your partner an arrangement that doesn’t actually suit either of you.

You should consider very carefully the benefits and costs of engaging a lawyer to represent you. If you are able to take a reasonably objective view of the issues and can express yourself clearly you should consider representing yourself. The Family Court‘s website has helpful information.