Parental responsibility to children following separation or divorce

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.