Family Law

Parental responsibility to children following separation or divorce

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What happens when your ex partner won;t let you see your kids

When families separate it is often a very challenging time for everyone involved, especially children. Emotions are intensified and it can be difficult to separate them from everything else that needs to happen following a separation.

While it is never the intention of parents to hurt their children, unfortunately, the children often end up stuck in the middle.  All to frequently one parent may make it difficult for the other parent to spend time with their children.

If this is the case, then both parties need to understand the following –

Shared parental responsibility

When parents separate or divorce, their parental responsibility toward their children does not end. The starting point in family law is that parental responsibility should be shared equally between both parents.  The law provides that children are entitled to spend time with both parents. You have a right to spend time with your children.  This may also apply to Grandparents and other people of significance in the children’s lives.

The best interests of your child

When determining the living arrangements of the children The Family Court of Western Australia accesses what is in the best interests of the child(ren).  The law directs the court to start from the presumption that the best interests of children are served when they have both their parents in their lives.

Substantial and equal time

In fact, even if your children’s living arrangements mean that they live with your ex-partner or spouse, you are generally still entitled to have substantial and equal time with your kids. So this means that in most cases you can see your children, visit with them and even have them stay with you at your house.

Parenting plans and consent orders

Parenting Plans are a written agreement that both parents enter into freely which outlines the future arrangements for the child(ren). It is then dated and signed by both parents to make it official.

A Parenting Plan may contain information about the care, welfare and development of your children as well as arrangements relating to people of significance in your child(ren)s life, such as Grandparents.

It is advisable to seek legal advice from a family lawyer if you are entering into a Parenting Plan, even though they are not binding Court orders.

Don’t think that just because they aren’t binding Court orders doesn’t mean that there aren’t consequences when a parent breaks the arrangement.

If you want a stronger form of agreement, you can make a joint application to the Family Court for consent orders in the terms of the parenting plan so that your spouse or partner will be bound by the agreement. If there is a Court order, then it will be easier to enforce the agreement if your spouse or partner breaks the agreement.

Parenting Orders

If, for example, you and your spouse divorced or separated and you did not have a written agreement about the living and parenting arrangements over your children, you can file an application with the Family Court for a parenting order.

You can file an application with the court, but you will be directed to serve a copy of your application on your ex-partner. This is best done in person, however if this is not possible you can send the orders to your ex-partner by post.  Please note, however, that there are various requirements on how documents are to be served (for example, one spouse cannot serve the application on the other spouse – a third party must serve the application), and there are various requirements on how you must prove to the Court that the application has been properly served.

Family Dispute Resolution

Before you or your ex-partner can apply to the Family Court for Parenting Orders you will have to attend mediation with a registered family dispute resolution provider.  This is compulsory mediation, and the Family Court will not hear your application if you do not attach a certification issued by the family dispute resolution provider.  The certification will state that you appeared for mediation, but you did not reach an agreement.

You may be exempted from the mandatory requirement of compulsory family mediation if there are special circumstances such as urgency, domestic violence or abuse or neglect of your children by your spouse or partner. Be careful in making such an allegation, however, because you will be required by the Family Court to produce and present evidence on this.

Recovery Order

In some circumstances, even though you have gone through the process and obtained Parenting Orders, a parent may move or take the child(ren) away.  If, for example, your spouse or partner took your children from school without your knowledge or consent, or refuses to return the children after their agreed period of contact with the children, you can apply to the Family Court for a Recovery Order. The Family Court can order the police to find and return your kids to you.

What you can expect at Family Court

At an early stage of the proceedings, a Family Consultant will often talk to you and your spouse to identify the issues and explore options for agreement.  Later in the proceedings, the Court may direct the Family Consultant to interview you, your spouse and perhaps also the children to prepare a report to assist the Court to make orders in the best interests of the children.

When the application is set for trial, you will need to present evidence. The evidence consists of affidavits (these are personal sworn statements that set out the facts) by yourself and any other person you want to call as a witness.  This might include reports by social workers, healthcare providers, the police, school authorities or anyone else who can give relevant evidence.  Anyone who swears an affidavit can then be cross-examined by your spouse (or their lawyers) at the trial.

Although you can represent yourself at trial, you need someone experienced and knowledgeable about the procedure, such as a Family Law expert, so that your evidence can be presented in a clear and convincing manner before the judge, and so that the other’s witnesses can be carefully cross-examined.

The above is an overview of the options available to you following a separation when children are involved.  It is always best to seek legal advice with issues as important as these.  At Perth Lawyers Macdonald Rudder we have been helping Western Australians since 1987 and have extensive knowledge and experience with family law. Our team of Family Lawyers understand how difficult these times can be and will treat your situation with the sensitivity and understanding it deserves while striving for the best outcome.  If you would like to seek legal advice please contact us today.

Are there financial requirements following separation or divorce?

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The short answer is yes. There are financial requirements for when you and your spouse or partner separate or divorce according to Family law.

Sometimes during a marriage, couples purchase assets or properties jointly or invest in income generating ventures. Some couples pool their assets and properties together or keep them separate.  There may also be assets or properties owned individually by a spouse and which may be distinct from the assets/properties gained during the marriage (or defacto relationship). One example could be if the couple lived in a house which was inherited by one of the partners from their parents prior to the marriage. Even though the house was an inheritance of one spouse, after separation, the other spouse may want to be able to continue living in the house as part of their property settlement.  When creditors have security over a house or other property, this can also complicate how or whether assets can be transferred as part of any settlement.

In any event, all assets and liabilities (whether owned/owed by one spouse or by both spouses) must be divided between them in the case of separation or divorce.  Any agreement to divide assets and liabilities will only be final and binding if confirmed in Court orders or a special type of agreement known as a “financial agreement”.

You can see that it isn’t an easy or black and white process.  It is often in your best interest to engage an experienced Family Lawyer to ensure that legal requirements are met.

When a marriage, de facto or same-sex partnership breaks down and the partners decide to dissolve the marriage or partnership, the separation may have an impact on third parties such as their children and their creditors and debtors. Thus, partners and spouses need to make financial arrangements for the payment of bills, debts and spousal and child support out of the assets and properties jointly owned by the marriage or partnership or out of their separate personal properties.

Spouses or partners can agree on how to divide the assets and liabilities amicably and privately and then submit their agreement to the Family Court to ask for consent orders to make it binding on them.

What happens when partners disagree on the division of assets?

When spouses or partners disagree on the division of assets and liabilities, they can open a family dispute on financial matters. When spouses opt for this, they have to comply with pre-action procedures.

First, they need to have a full and frank disclosure of all the assets of the marriage as well its liabilities.

Second, they need either to agree the values of these assets and properties or have those values appraised.  Sometimes, properties (like a house, a book collection or a painting) may have sentimental value, and one of the spouses seeks to retain ownership instead of selling it and dividing up the proceeds.  Assigning a monetary value to the property will ensure that the other spouse will get some other property that has equal monetary value.

Often the parties may only have assets in Western Australia, however, there are instances when the parties own properties in other states or other countries as well. The division and distribution of those properties need to be formalised.

Third, the spouses or partners need to go through counselling, arbitration or mediation to try and settle financial matters amicably. When this happens, the agreement between the parties which was reached through these alternative dispute resolution procedures can be submitted to the Family Court for its approval and for consent orders to be issued so that the agreement will be binding on the former partners or spouses.

There are times when the spouses or partners agree on the distribution of properties, but a property is subject to a mortgage or other security. If that property is to be transferred as part of the property settlement, then that debt will need to be re-financed.

Financial and property arrangements in the event of separation or divorce are not something to be taken lightly. Not only your own future, but that of your children could be significantly affected.
Note also that there is often a time limit for applying to the Court for property division orders.  If that deadline expires, you may well lose your right to seek property division from your former partner.

Legal representation is highly recommended in case of property distribution to ensure that your rights to your personal properties and your right to a share in the properties of the marriage will be adequately protected and asserted.

At Perth Lawyers Macdonald Rudder we have been successfully helping our clients in matters of Family Law for over 29 years.  We understand that it is a difficult time and will always treat your situation with sensitivity and understanding while striving for the best outcome.  Contact us today to book into to see one of our experienced lawyers and make sure you are protected.