As Fathers’ Day approaches on the 2 September 2018, we hope to help Fathers, and particularly FIFO Fathers, in navigating the WA Family Law system.
It is widely recognised that the some of the negatives of FIFO life: the long times away from home, the differences between work and home life and the intensity of work on site, can put serious pressure on individuals and their families.
This situation can be made even more difficult in instances of family separation, where ex-partners have to negotiate parenting arrangements and at times, consider their children’s rights under the Family Law system.
In the Australian Family Law system, the children’s best interests are the overriding consideration.
In determining what is in the children’s best interests, the Family Court’s two main considerations are:
- that it is good for the children having a meaningful relationship with both parents
- the need to protect the children from abuse, neglect or family violence
In determining what is in a child’s best interests the Family Court will also consider other factors. These include points such as the children’s views, the nature of the children’s relationship with their parents and the practical difficulty and expense of the children spending time with and communicating with a parent.
When making Orders, the Court’s default position is that both parents are jointly responsible for making important decisions for the children. These important decisions include things like what school the children are going to attend and what medical procedures they are to undertake.
These considerations show that the Family Court takes the benefit of the children having a meaningful relationship with both parents, and the benefit of both parents making joint decisions for the children seriously.
If both parents aren’t having a meaningful relationship with the children, or are not having an input into making decisions for the children, the first step (after obtaining legal advice) is to attempt to negotiate to create the parenting arrangements that are best for the children.
If negotiations are unsuccessful, parents should generally attempt mediation (also known as Family Dispute Resolution) to get some help with their negotiations. Mediation is where the parents will have a meeting with a neutral third person (usually a lawyer, former lawyer or other trained mediator) who will attempt to assist the parents in reaching an agreement.
If an agreement can be reached, the agreement can be made into binding Family Court Orders. Alternatively, the agreement can be written up as a parenting plan, which is a document setting out parenting arrangements which is signed by the parties. The main difference between a parenting plan and Family Court Orders is that a parenting plan is not an enforceable document that the parents are required to follow by the Court.
The benefit of parenting plans is that they can be changed more easily and can therefore be more flexible than Family Court Orders. This can be particularly useful with a FIFO parent in the event that rosters or work circumstances change.
If the parents are still unable to reach an agreement after mediation, consideration should then be given to commencing proceedings in the Family Court. This is done by one of the parents preparing and filing an application in the Family Court, and then serving that application on the other parent or their lawyer.
Once an application is filed with the Family Court, a first hearing date will be set and a file will be created for the children the subject of the dispute. There will then usually be at least several further hearings before the proceedings are concluded with a trial.
At trial the dispute regarding the children will be finally determined by a Judge or Magistrate. Final Court Orders will then be made setting out the parenting arrangements for the children, if an agreement cannot be reached before then.
One of the major disadvantages of taking a matter to Court, other than the significant legal and emotional costs involved, is that the children’s parenting arrangements may be determined by a Judge or Magistrate, rather than the parents themselves. It is for these reasons that parents should carefully consider the consequences of going to Court before commencing proceedings.
Lynn & Brown Lawyers have decades of experience in advising and representing clients in Family Law matters. If you or someone you know needs any assistance with parenting matters, please feel free to contact us.
About the authors:
Robert Pearson is an Associate who was admitted as a barrister and solicitor of the Supreme Court of Western Australia in 2013 and is an experienced lawyer specialising in Family Law matters. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.