consent order family law

My partner and I are splitting up. How do we go about deciding parenting arrangements for our children?

Deciding parenting arrangements for your children following a separation doesn’t have to be a complicated or stressful process. Who the children live with, who will make major decisions about their lives and who they will spend time with all needs to be considered.

You and your partner coming to a joint parenting agreement is the preferred option to going through the Family Court of WA. This can be achieved through an informal agreement, parenting plan or consent orders.

The different options available to you are explored below:

Option 1: Informal Agreement

If you and your partner have managed to decide on a parenting arrangement that you think will work for both of you and your children, congratulations! In some cases, this can work just fine right up until all the children are eighteen.

In other cases, something can go wrong and one person might not stick to the arrangement for some reason. This can be disruptive for both you and the children.

It is important to remember that even if you put what you agree into writing, it is not legally binding and neither you or the other parent are bound by law to follow what you agreed.

The best way to protect the interests of yourself and your children in the future is to convert this informal agreement into a formal agreement (known as consent orders).  

Option 2: Parenting plan

This option is similar to the informal agreement discussed above. A parenting plan is a written document between you and the other parent, which may cover all aspects of your parenting arrangement.

A parenting plan is also not legally binding and one parent might not stick to the arrangement for some reason.

The best way to make sure you have certainty and clarity for both you and your children is to convert your parenting plan into consent orders. How to do this is discussed next.

Option 3: Formal Agreement (Consent orders)

Consent orders are a written agreement that must be approved by the Family Court of WA. They are used when you have reached an agreement and want the court to turn it into formal orders, but don’t need the court to make the decisions for you.

After consent orders are made and approved, they cannot be easily changed.

For the court to approve your consent orders, they will be examined to see if they are in the best interests of your children. How they decide this is based on a number of considerations, including the court taking into account the importance of both parents having a meaningful relationship with the children.

In most cases, what’s known as ‘equal shared parental responsibility’ will apply. This means that unless the court has a significant reason not to allow it, both parents should have the right to participate in decision making about major long-term issues such as where a child goes to school, their health issues and religious and cultural upbringing.

It is a common misconception that equal shared parental responsibility means having the children for equal time. This is not the case, and the court will only agree to equal time between parents if the presumption of equal shared parental responsibility applies, it is seen as being in the child’s best interests and it is reasonably workable between you and the other parent.   

Option 4: Family Dispute Resolution

If you cannot come to an agreement with your partner, the next best option is to go through a type of mediation called family dispute resolution. Family dispute resolution is conducted by trained family dispute resolution practitioners who have vast experience in matters like your own. These practitioners are there to facilitate you and your partner coming to an agreement and hopefully avoiding the court process.

In fact, unless you are eligible to be excused, for reasons such as urgency, child abuse or family violence, you are required to have a family dispute resolution completion certificate before you go to court. If a family dispute resolution practitioner is successful in helping you come to an agreement, you can either convert this into a parenting plan or consent orders.

Find a family dispute resolution practitioner near you here: https://www.fdrr.ag.gov.au/

Option 5: Litigation in the Family Court of Western Australia

If an agreement still can’t be reached, the last option is to take your case to the Family Court of Western Australia and for the court to decide your parenting arrangements for you. Emotions usually run high in children’s matters. Although it is possible to represent yourself in court, having a family lawyer by your side is definitely recommended.

Caroline

By Caroline Gann, MKI Family Lawyer

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