How the court decides parenting cases

When you apply to the Family Court for parenting orders, you are commencing legal proceedings and asking the court to make a decision about the arrangements for the children. 

The court’s most important considerations are what is in the children’s best interests. This includes:

  • protecting children from physical and psychological harm, including children experiencing family violence or neglect, and
  • the benefit of the children having a meaningful relationship with both parents.

This information will help you to understand what things the Family Court considers and what orders can be made in parenting cases.   

What orders can the Family Court make?

If a case for parenting orders has been started in the Family Court, it is usually because parents cannot agree about important matters about the children's lives, including who has responsibility to make other decisions for the children.

The Family Court can make decisions about any matter in dispute about children. The orders must always be in the best interests of each child, and can cover:

  • who will have parental responsibility for the children
  • where the children will live, and who with
  • how much time the children will spend with each parent, and with other people that are important in their lives
  • where the children will go to school
  • whether the children can move or travel overseas
  • how the parents will keep each other informed about their children's lives
  • changing a child’s name, and
  • allowing a child to undergo a medical procedure.

How does the Family Court make decisions about parental responsibility?

Under the law, each parent has parental responsibility for their children, until the children become adults when they turn 18 years old. Parental responsibility includes making major decisions for children, including about:

  • living arrangements
  • education and school
  • religion
  • medical treatment, and
  • cultural matters.

It doesn’t include day-to-day decisions about simple things, like what the children eat or wear. 

If you start a parenting case in the Family Court, you can ask the court to make formal orders about how the parents exercise their parental responsibility. The law assumes that it is normally in the best interests for a child that both parents agree on major long-term issues about how to raise their children. If the court makes an order that the parents have equal shared parental responsibility, those decisions must be made by both parents together. They must consult with each other and make a real effort try to reach an agreement about those topics. 

Decisions about parental responsibility are usually made before the court decides how much time the children will spend with each parent. They are separate questions that the court will answer.

How does the court decide how much time the children spend with each parent?

If the court gives both parents equal shared parental responsibility, it will then look at how much time the children should spend with each parent by considering these options in this order:

  1. For the children to spend equal time with each parent.
  2. For the children to spend substantial and significant time with each parent.
  3. Other arrangements that could be possible.

Arrangements for substantial and significant time need to give both parents the chance to be meaningfully involved in the children’s daily routine and spend time with them on weekdays, weekends and during holidays. They must also let each parents be part of important events that are special to them or the children (such as birthdays, sports carnivals and school assemblies). 

The court will only choose an option if it is shown to be in the best interests of the children. The arrangements for the children spending time with each parent must also be capable of working out in practice, taking into account things like where the parents live, what they do for work, their ability to follow those arrangements, how well they communicate and resolve problems, and the likely impact of those arrangements on the children.

When might the court not order equal shared parental responsibility? 

In some cases it will not be appropriate for both parents to be forced to make major life decisions for the children together. The court can decide to make no order about parental responsibility, or give sole parental responsibility to one parent (or another person, like a grandparent) if there is evidence that an order for equal shared parental responsibility would not actually be in the best interests of the children. For example:

  • if there has been child abuse or family violence by a parent or a person who lives with one of the parents, or
  • where the parents are unlikely to ever be able to find any agreement or common ground about what they think is best for their children.

If you are given sole parental responsibility, it means you will be responsible for making all major decisions for the children, without having to consult or agree with the other parent. In appropriate situations, the court can decide to give sole parental responsibility to a person about some particular issues (such as religion or schooling) and not other topics. 

If the court does not order equal shared parental responsibility, it can make any orders it thinks are in the best interests of the children when deciding how much time is spent with each parent, so long as the arrangements are capable of working out in practice. This can include order equal time, substantial and significant time, or other arrangements (including no time at all with a parent). The court does not have to consider the possibility of equal time before looking at other options; it just has to decide what arrangements will be in the best interests of the children. 

What if I want to change my parenting orders?

If you and the other parent agree on the changes, you might be able to make a parenting plan to change parenting orders, or you can apply for consent orders that vary the previous parenting orders. 

If the other parent does not agree to the changes you want, you will need to apply to change the orders in the Family Court. The court will only change the orders if it is satisfied there has been a significant change in circumstances since the original orders were made.

You should get legal advice before you make any changes to your parenting orders.

 

More information

Family Court of WA website

 

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.