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How does the Family Court deal with a children's case

How does the Family Court deal with a children's case

You may need to ask the Family Court for help in resolving your dispute about arrangements for your children. Starting a case in the Family Court is called "commencing proceedings". If you file an application or a response to an application at the court you are called a party.

What happens if I go to the Family Court?

The Family Court brings you and the other parties together to make arrangements about what should happen with your children following separation.

The court will give you and the other parties opportunities during the process to reach your own decisions about the matter. If no agreement is reached, the court will have a trial on the issues and a judge or magistrate will make a decision about what should happen with arrangements for your children. This process can take up to a year or even longer.

What types of children’s issues do people go to Family Court about?

The main issues that the Family Court will usually deal with in a case about children are parental responsibility and arrangements for where the children will live and who they will spend time and communicate with.

There are also many other issues that the court is sometimes asked to decide if the parties cannot agree, including things such as where the children will go to school, whether children can travel outside of Australia and whether a child’s name can be changed.

Going to the Family Court does not mean that you have to give over all decisions about your children to the court. Some families will only need to ask the court about how much time a child will spend with each parent, or they may have already made those arrangements but cannot agree on a particular issue such as whether a child should undergo a certain type of major medical treatment.

What should I know about parental responsibility?

Parental responsibility means all the duties, powers, responsibilities and authority which by law parents have in relation to their children, until the children are 18. The principles of parental responsibility are the same if you were married, in a de facto relationship (including a same-sex relationship), are separated or divorced or never lived together.

By law, both parents have parental responsibility for their children, unless a court orders otherwise.

Generally, when your child is staying with you, you have responsibility for making the day-to-day decisions about the child, such as what they wear, what they eat and so on.

The Family Court can make an order for the parents to have equal shared parental responsibility, for one parent to have sole parental responsibility or for certain aspects of parental responsibility to be allocated to either or both parents.

You should get legal advice about parental responsibility and how the court may allocate parental responsibility in your case.

What is equal shared parental responsibility?

Family law presumes it is in the best interests of children for parents to have equal shared parental responsibility (ESPR). ESPR requires that the parents discuss and try to agree on decisions about major long term issues about their children, including about:

  • education
  • religious upbringing
  • major issues about the child’s health
  • the child’s name
  • changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent

The court will not apply this presumption where there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. There may also be evidence that satisfies the court that it would not be in the child’s best interests for the parents to have ESPR for the child.

What is sole parental responsibility?

In some cases it may be appropriate for parental responsibility to sit with one parent only. This is called “sole parental responsibility”. If you have sole parental responsibility, you are responsible for making all the major decisions about your child and are not required to consult with the other parent first. Sole parental responsibility may be appropriate where (for example):

  • the parents live in different countries and have difficulty communicating with one another
  • there has been family violence in the parents’ relationship and it would not be safe for one parent to have to communicate with the other parent
  • one parent is incapable of participating in making appropriate decisions about the child (for example because of a mental illness)

Does equal shared parental responsibility mean both parents spend equal time with their children?

Equal shared parental responsibility is about parents sharing major decisions about their children. It does not automatically mean that the children will spend an equal amount of time with each parent.

What happens if the court makes an order for equal shared parental responsibility (ESPR)?

If the court makes an order for ESPR, it must follow a pathway set out in family law legislation which includes a consideration of whether equal time or substantial and significant time would be appropriate in the circumstances. This does not mean there are any presumptions about children spending equal time or substantial and significant time with each parent. The court must always make the decision it thinks is in the Best interests of the child.

 

The court considers the possibility of equal time


If the court decides that the parents have equal shared parental responsibility for their children, then it must look at the possibility of the children spending equal time with both parents. The court will only make an order for equal time if it is satisfied that this would be:

The court considers the possibility of “substantial and significant” time


If the court decides that equal time would not be appropriate in the circumstances, the court must then look at the possibility of the children spending “substantial and significant” time with the parent the child will not be living with. This means time that includes both week days and weekends, as well as holidays. The time needs to allow each parent to be involved in the child’s daily routine and participate in occasions and events that are of special significance to the child or the parent (such as birthdays, sports carnivals and so on). The court will only make an order for substantial and significant time if it is satisfied that this would be:

The court considers what arrangements would be in the best interests of the child


If the court decides that substantial and significant time is not appropriate in the circumstances, the court will then look to what arrangements would be possible and in the Best interests of the child.

The court will consider the proposals made by each party about arrangements for children, but may decide to make different orders if they consider those orders to be in the best interests of the child.

How does the court go about deciding what time the children spend with each parent if they do not make an order for ESPR?

If the court does not make an order for ESPR, the court will not follow the steps set out above, but rather will go straight to considering what time would be in the Best interests of the child. The starting point may be for the court to consider the proposals of each party, although the court can make orders that are different to what either party puts forward.

What does “reasonably practicable” mean?

When the Family Court makes orders, it must be satisfied that those orders have a chance of working in reality. For example, there would be no point making an order for the children to spend equal time with each parent if one of the parents worked away for a large part of the year and was unable to have the child live with them during those times. In determining what is reasonably practicable, the court must consider:

  • how far apart the parents live from one another
  • the parents’ current and future capacity to carry out the proposed arrangement
  • the relationship between the parents and their ability to communicate with one another to sort out any issues that might arise
  • the impact the arrangement would have on the child

The court will also consider any other relevant factors.

How do I start a case about children in the Family Court?

To start a case at the Family Court you need to file forms or papers, and to serve those papers on the other parties. The Family Court of WA website has information about what forms to use, depending on what you are asking the court to do.

Before starting a case for parenting orders, you usually have to go to family dispute resolution (FDR) with a family dispute resolution practitioner (FDRP). You may fit within an exemption. This means you may not have to go through the FDR process. If FDR is not successful at resolving all the issues, you can ask the FDRP to give you a certificate which you will need to file at the Family Court in order to commence proceedings for parenting orders. See Family dispute resolution and Before you go to court – children or visit the Family Court of WA website for more information.

What does 'file papers' mean?

File papers means going to the Family Court of WA and giving the papers to the registry to start your case. The Family Court in Perth is located at 150 Terrace Road. In regional areas you can file Family Court documents at the counter of your local courthouse.

In order to commence proceedings you need to file an application.

You also need to file a copy of your marriage certificate if you were married to the other party, or if you were not married to the other party, copies of the children's birth certificates.

Where do I get a copy of my marriage certificate or the children's birth certificates?

Birth and marriage certificates are available from the Registry of Births, Deaths and Marriages. The office is located at level 10, 141 St Georges Terrace and is open from 8.30am to 4.30pm Monday to Friday. You can also request a certificate by mail to PO Box 7720 Cloisters Square Perth 6850, or in person at some regional courts. You will have to pay for the certificate.

For more information about obtaining certificates, see the Registry of Births, Deaths & Marriages section of the Department of the Attorney General's website or call the Registry on 1300 305 021.

What is a case information affidavit?

A case information affidavit is a Family Court form that you will usually have to complete to start a case involving parenting issues. A case information affidavit asks for information about your family, the circumstances of your case and other such information. The form is a sworn or affirmed document.

What is an affidavit?

An affidavit is a sworn or affirmed statement setting out evidence to support your case. You usually do not have to provide an affidavit, aside from a case information affidavit, to the court to start a case involving parenting issues. Only in specific circumstances will the court require an additional affidavit to start a case.

What does ex parte mean?

In special circumstances you can ask the court to make orders without the other party knowing and without serving the other party. This is called an "ex parte application" meaning without the other party being present in court. Ex parte applications are made in urgent and serious matters. Wherever possible you should get legal advice before making such an application.

What does 'serve papers' mean?

Once you have filed your papers you will receive stamped copies from the court and you need to serve them. Serve means giving a copy of your papers to other parties involved in the case after you have filed the papers at the Family Court.

You will need to have someone serve the other parties in person. This is called personal service. Generally you cannot serve documents on the other parties yourself. You can get a friend or relative over the age of 18 to serve documents for you. Alternatively you can employ a professional process server to serve the documents for you for a fee.

For more information on how to serve papers see the Family Court of WA's Service Kit.

What if I need to serve papers and I don't know where the other person is?

If you don't know where the other person is, this does not mean that you cannot start your court case. However, you will need to think about how to let the other person know that you are asking the court to make an order. You can ask the court for permission via a court order to serve the person by sending the documents to someone else such as a friend or family member of that person (called substituted service). Otherwise, you can ask the court for permission not to serve the documents (called dispensation of service). Sometimes, the court will allow a variation of service where you might be able to serve documents by another means, for example by email.

If you want to ask the court to make any of these orders, you can find more information and the required documents in the Family Court of WA's Dispensation of Service Kit.

Does it cost anything to start a Family Court case?

With most applications you will need to pay a filing fee. If you receive Centrelink payments or are in financial difficulty you can ask for a reduction in the court fees by filing an Application for reduction of court fees that you can get from the Family Court of WA website or from the court when you file your papers.

When will I have to go to court?

Your matter will usually be allocated a hearing date as close as practicable to 28 days after the date your application was filed. If your matter is urgent (for example, if your children's safety is at risk), you can write a short letter to the duty registrar setting out the basis of the urgency and the court may decide to list your matter sooner. You should seek legal advice if you think your matter is urgent.

What happens at the first court date in children's matters?

In children's matters, the first court date will usually be a Child Related Proceeding List (CRP List). As well as the magistrate, a family consultant will be present at the CRP List and will assist the court in working out what should be the next steps in your matter. A family consultant is a trained psychologist or social worker.

The court may receive evidence from the parties and/or the family consultant and make procedural orders about how your case will proceed. The court may already have some information from the Department for Child Protection if they have been involved or information about any restraining orders or other criminal matters if there has been family violence.

The court may make a date for you to go to a case assessment conference or a further hearing, or request that the parties attempt family dispute resolution. For more information, see Case assessment conference and family dispute resolution.

The court will not usually make any orders about the children on this date, but may be able to make any orders that the parties have agreed to.

What does a family consultant do?

A family consultant is involved in the early stages of your case if it involves children's issues, and tries to help you resolve your issues without going to trial. During the case assessment conference the family consultant will listen to all of the parties and will then give the court a written report on what they have heard. The family consultant may also make recommendations to the court about your case. You should remember that anything you say to a family consultant is not confidential and may be repeated in court.

What is a readiness hearing?

A readiness hearing is a court date used to make sure a case is ready for trial. You may need to provide the court with information about your case before the readiness hearing. You will also need to be able to tell the court at your readiness hearing that you are ready for trial, how long you think the trial will take and which witnesses you want to call. If the registrar decides that your matter is ready to go to trial, your case will be allocated to a "callover" in which your case will be given a date for trial.

What happens if we go to trial?

If you go to trial you will have to bring evidence to support your case. Trials are held in front of a judge or magistrate. At the end of a trial the judge or magistrate will make a decision about your case. It is recommended that you get legal representation for a trial. Anyone over the age of 18 can attend a trial unless the judge orders otherwise. Unless the court specifically allows it the media or the parties involved cannot publish any information that identifies people involved in Family Court proceedings.

What is the difference between interim and final orders?

Interim orders are made for the time being while your case is in court and before final orders are made. Final orders are made at the end of a case, usually either after a trial or when the parties have agreed to final consent orders. Both interim and final orders are court orders. There are consequences if the orders are not followed.

What should I call the judge?

You can refer to the judge or magistrate as your honour, sir or madam/ma'am. A registrar may be referred to as sir or madam/ma'am.

Is the process different outside of Perth?

The court process is different outside of Perth. As there is no separate Family Court outside of Perth, people in regional areas may be able to start their cases in the Magistrates Court in their area. The Family Court judges and magistrates do however visit certain regional courthouses at certain times on what is known as a "court circuit". You should check with your local courthouse or the Family Court of WA to see if this happens in your regional area.

There are no family consultants based outside of Perth so case assessment conferences will not always take place in regional areas, or may take place via video link or telephone with a family consultant in Perth. You should ask the court dealing with your case about what options are available to participate in a case assessment conference.

Sometimes cases will need to be transferred to the Family Court in Perth. This can happen if you ask for different interim orders to final orders or in complex cases. You may appear via video link or telephone if your case is transferred and you cannot get to Perth. You will need to ask the court for permission to do this and can apply using a Request to attend by electronic means form.

What is disclosure?

When you are taking part in Family Court proceedings, you have a duty to make disclosure. This means that you must provide all relevant documents and information to the other parties in the case. For example, if there is an issue about the children’s achievement at school, you may need to disclosure copies of the children’s school reports and details of any communications you have had with the school about the children’s progress. Working out what needs to be disclosed can be difficult in a children’s matter.

Get legal advice if you are unsure about what disclosure you might need to make or if you think the other party is not providing adequate disclosure.

Do I need a lawyer?

No, you do not need a lawyer to represent you in the Family Court. You are allowed to represent yourself. Another person who is not a lawyer cannot represent you.

If you are unsure about how the Family Court will deal with your case, you should get legal advice.

The Family Court of WA has produced a Self represented litigants handbook as a resource for people representing themselves in the Family Court. The handbook is not intended as a substitute for professional legal advice.

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
  • For more information on the Family Court process and other useful information about family law, see the Family Court of WA's Information Sessions webpage
     

Last reviewed: 01/11/2012

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.