When parents separate, one of the most important and often most difficult issues to resolve is how the children will be cared for.
Consent Orders for Parenting Arrangements
If both parents are able to reach an agreement about parenting arrangements, they can formalise this agreement by applying for Consent Orders in the Family Court.
What are Consent Orders?
Consent Orders are legally binding Court orders that reflect the parenting arrangements agreed to by both parents. They carry the same legal force as orders made by a Judge after a hearing, but they are made without the need to go to Court or participate in a trial.
Why Choose Consent Orders?
Consent Orders provide:
Less conflict – Since the orders reflect a mutual agreement, the process is usually less stressful for everyone involved, especially the children.
Certainty and enforceability – If one parent does not follow the orders, the other parent can ask the Court to enforce them.
Flexibility – Parents can agree on arrangements that suit their family’s unique needs.
Cost-effectiveness – Resolving matters by agreement avoids lengthy and expensive litigation.
What happens if parents cannot agree on parenting issues?
If parents cannot agree, on parenting issues the Family Court of Western Australia (Federal Circuit and Family Court of Australia is other states of Australia) may need to make parenting orders. These orders set out the arrangements for the care, welfare, and development of the children.
The Laws that apply in Western Australia
- For children of married couples, parenting matters are governed by the Family Law Act 1975 (Cth).
- For children of de facto relationships, parenting matters are governed by the Family Court Act 1997 (WA).
Although these are separate pieces of legislation, both Acts share the same central principle: the best interests of the child must guide every decision.
The Best Interests of the Child
The Court’s primary concern is always what is in the best interests of the child.
Factors considered include:
- The safety of the child and their carers, including protection from family violence, abuse, neglect, or other harm.
- The benefit to the child of having a relationship with each parent and with other significant people (such as grandparents).
- The child’s own views, depending on their age and maturity.
- The child’s developmental, psychological, emotional, and cultural needs.
- The ability of each parent to provide for the child’s needs.
- The effect of any changes to the child’s current circumstances, including practical considerations such as distance, school, and stability.
Decision-Making Responsibility
Under recent changes to the law, there is no longer a presumption of equal shared parental responsibility. Instead, the Court may allocate decision-making responsibility for major long-term issues (such as education, health, and religion).
This responsibility can be:
- Shared between both parents, or
- Sole responsibility given to one parent.
The Court may also divide decision-making responsibility so that each parent is responsible for different issues. Importantly, decision-making responsibility is separate from time arrangements. A parent may have sole decision-making authority, but the child may still spend regular or substantial time with the other parent if that is in the child’s best interests.
Parenting Orders
Parenting orders may cover:
- How decisions for the child are made
- Who the child lives with
- How much time the child spends with each parent
- Communication with the parent the child does not live with
- Interstate and International travel or restraints on such travel
- Medical and emergency care
- Any conditions or restrictions needed to protect the child
Mediation Before Court
In most cases, parents must attempt Family Dispute Resolution (mediation) before applying to the Court. Only when mediation is unsuccessful, inappropriate, or unsafe (for example, due to family violence) the parties can make an application to the Family Court.
Summary
Whether under the Family Law Act 1975 (Cth) for married couples, or the Family Court Act 1997 (WA) for de facto relationships, the guiding principle remains the same: the safety, wellbeing, and best interests of the child are paramount. Understanding how the Court approaches parenting issues and the role of decision-making responsibility can help parents navigate this challenging process with greater clarity and confidence.