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Frequently Asked Questions - arrangements for children

Frequently Asked Questions - arrangements for children

What kind of arrangements do I need to make for my children?

When you separate from a de facto partner or husband/wife and you have children together, there are a few arrangements that you need to think about. These arrangements include:

  • where the children will live
  • who the children will spend time with and communicate with 
  • who will have parental responsibility for the children (who will make the day to day and long-term decisions about children)
  • anything else to do with the care, welfare and development of the children, including schooling, participation in different activities and so on

Family law encourages parents to make decisions that are in the best interests of their children. "Best interests" has a special meaning in family law. See Best interests of the child for more information.

Is it true that family law says children should spend equal amounts of time with each parent after separation?

There is no presumption that children will spend equal amounts of time with each parent after separation. All families are different and so arrangements should be made that suit the needs of the particular children involved and that the parents are able to make work in practice.

For more information on how the Family Court makes decisions about children, see How does the Family Court deal with a children’s case.

Do we have to do anything special to have an agreement about arrangements for our children?

No, if you and the other parent agree about arrangements for your children, you do not need to do anything special, such as prepare a written agreement or obtain court orders. Many families come up with their own flexible arrangements which meet the needs of their children without the need for anything formal being in place.

Important: You need to be aware that only if your agreement is formalised as court orders, can you enforce your agreement through the Family Court. Court orders made about children are called parenting orders. Parenting orders can be made by agreement, without the need to go through formal court proceedings. For more information, see Parenting orders.

I would like to record our agreement about our children’s arrangements in writing. What options do I have?

You can record your agreement about arrangements for your children by:

  • entering into a parenting plan with the other parent, or 
  • filing consent orders with the Family Court.

Important: Consent orders (which are parenting orders made by the court based on your agreement) can be enforced by the court. Parenting plans cannot be enforced by the court, but may have other implications.

For more information see Parenting plans and Parenting orders.

Can we use dispute resolution services to try to come to an agreement about our children?

Yes, dispute resolution services, such as mediation, family counselling and family dispute resolution can help you try to come to an agreement about arrangements for your children. Some dispute resolution services can also help you write up your agreement. See Family dispute resolution and Other ways to resolve a family law dispute.

It is now compulsory to attend family dispute resolution before going to the Family Court, unless you fall within an exception to this requirement. For more information, see Family dispute resolution and Before you go to court - children.

What if there has been family violence or child abuse or there is a risk of these?

Where there has been family violence or child abuse, or there is a risk of one or both of these you might not have to attend compulsory family dispute resolution before applying to the court, as you might fall into one of the exceptions. You should get legal advice on your particular situation to see if you fall into one of the exceptions.

It may also not be appropriate or safe for you to negotiate directly with the other parent about arrangements for your children. Seek legal advice.

See Family violence and family law and Family law and children at risk of harm for more information on these issues.

Important: If there is a Violence Restraining Order (VRO) in force between you and the other person, you must not communicate with them unless the order specifically states otherwise.

What happens if we cannot come to an agreement through dispute resolution processes and we need to go to Family Court?

If you have been unable to reach an agreement about arrangements for your children through any of the dispute resolution processes outlined in Family dispute resolution and Other ways to resolve a family law dispute your next step may be to go to the Family Court.

If you ask the court to make a decision about arrangements for your children, the court must do what it thinks is in the best interests of your children. For more information, see Best interests of the child. The court will make a decision based only upon the law and the information about your family that has been given to the court by you, the other people involved in the case and sometimes other people such as experts.

Going to the Family Court can be a long process, taking up to one year or sometimes longer to reach a final trial. The process can be emotionally and financially draining and can also affect the children.

You should seek legal advice before starting proceedings about children in the Family Court.

For more information about going to Family Court see How does the Family Court deal with a children’s case.

What happens if I do not have a lawyer to assist me?

If you do not have a lawyer to give you legal advice or assist you in court, you might want to see if you are eligible for assistance through Legal Aid WA. You might be eligible for a one-off appointment for legal advice or for a grant of aid for representation. Where your matter is urgent, you might fit the criteria for Legal Aid WA's Family Court Services (Duty Lawyer) service.

There are other community legal centres and organisations that may be able to assist you. Call the Legal Aid WA InfoLine on 1300 650 579 for an appropriate referral.

The Family Court of WA also has information for people who do not have a lawyer to assist them in court. See Family Court of WA - self-represented litigants handbook – children’s cases.

I am in prison - can I still spend time with my children?

The focus of whether you can spend time with your children is what is in the best interests of your children.

You will need to consider the effects on your children of them seeing you in prison. There may also be other considerations such as the attitude of the person caring for the children in bringing them to prison. It is also important to know what arrangements, if any, can be made at the particular prison. Everyone's circumstances are different.

You should try and negotiate with the children's carer (whether this is the other parent or another person) before asking the court to make a decision for you.

If you are unable to spend time with your children, arrangements might be able to be put in place for you to communicate with your children, by letter or telephone.

Please seek legal advice in relation to your particular circumstances in spending time with or communicating with your children.

Important: If there is a Violence Restraining Order (VRO) in force between you and the other person, you must not communicate with them unless the order specifically states otherwise.

If the other parent of my children is in prison, do I have to take my children to see them?

While this might be a difficult decision for you, you need to focus on whether or not it would be in your children's best interests to visit their parent in prison. You might decide that it would not be in their best interests to go to the prison. However, you might decide that it would be all right for the children to communicate with their parent through telephone calls, and to send and receive gifts and letters.

Whether or not it is in the best interests of your children to visit their parent in prison will depend on a number of things, such as:

  • will the children be protected from harm (physical or psychological) 
  • What prison the parent is in and what prison visiting facilities are available 
  • how old your children are 
  • whether there is transport to the prison 
  • whether your children have visited their parent in prison before 
  • what your children's relationship was like with their parent before the parent went to prison 
  • how long the parent's sentence is 
  • what crime the parent has committed

Where can I get more information?

  • Go to the When Separating website. Here you will find short films about family law and other helpful information and links for families experiencing separation
  • Contact the Legal Aid WA InfoLine on 1300 650 579 for information about what services at Legal Aid WA you might be able to access or for a referral to another service that may be able to assist
  • Contact the Family Relationship Advice Line on 1800 050 321 for information on a range of useful services 
  • Other websites you might find useful are:

Last reviewed: 22/10/2012

Last modified:

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.