Introduction
The breakdown of any family usually raises the question, ‘what about the kids?’ While all parties will generally want what is best for their children, it is not uncommon for parties to disagree on what that actually means in practice.
In cases where one party withholds children from the other, for whatever reason, the Family Law Courts attempts to provide remedy by way of issuing orders upon a parenting application.
In this post, we look at a scenario where your former partner is withholding your children, what sort of parenting applications you can make to the Family Court, and other relevant factors you should consider.
But first….
It is important to note that before any order is made, the Family Court will consider why the children are being withheld in the first place. Questions which are considered may include but is not limited to:
- Whether the children are being reasonably withheld to protect them against acts of physical violence?
- Whether there is a reasonable risk of emotional abuse?
- Whether the children are being reasonably withheld to protect their overall wellbeing from an unsafe environment?
Can you make an urgent application?
If there are no reasonable reasons for the children being withheld, an urgent parenting application can be made to the Family Court. However, it should not be your first or final course of action. If your children are not threatened by immediate danger, you will be expected to have at least tried to talk to the other parent with regard to the situation to seek a resolution, or tried to have taken part in Family Dispute Resolution (‘FDR’).
Making an urgent parenting application to the Family Court should only be a consideration where you can demonstrate that it is indeed urgent. This may include instances where there has been alleged violence, or abuse to the child, or any other justifiable reason why the normal course of remedial action will not suffice. If you decide to make an urgent Perth Family Court parenting application, you will need to attach evidence to your parenting application. Evidence of the urgent nature of the application is usually provided through a correspondence to the Family Court of WA explaining the reasons for urgency, further a affidavit will probably need to be prepared annexing any text messages or other documents.
The ‘best interest’ rule when making parenting decisions
Disputes over the rights and status of children, and their relationship with their parents is in part governed by the Family Court Act 1997 (WA) for de facto couples, and the Family Law Act 1975 (Cth) for married couples. Any application sought should be submitted to the Family Court of Western Australia.
The legislation clearly states that all family court orders resulting from applications will be made ‘in the best interests of the child’. The Family Court will determine this based on many factors including, but not limited to:
- The children’s current relationship with parents, and other important parental figures;
- The need to protect the children from violence and abuse; and
- The likely impact of parental orders on the physical, mental and emotional wellbeing of the child or children.
If discussions and mediation have failed, how can the court assist?
Barring any threat to the physical or emotional wellbeing of the child, the Family Court is empowered to issue a parenting order on the issue.
A parenting order is the result of a Parenting Application to the Family Court for orders, then the Family Court will decide how parental responsibilities will be allocated in the best interests of the child. Should you apply to the Family Court for a parenting order, it will assume that you have attempted to come to an agreement with the other party before seeking the Family Court’s intervention.
When you make a parenting application to the Family Court, you will need to list the specific parenting orders you seek the Family Court to make. As every family law case is unique, the types of parenting orders sought will depend on the circumstances of your individual case.
Categories of orders:
Final orders – brings a close to a matter where the decision is made by the court.
Interim orders – provides temporary relief in urgent cases pending a final order.
Consent orders – brings a close to a matter on terms that both parties amicably agree on.
The orders help because they are legally enforceable documents which may:
- order equal access to the children;
- order that the children be returned to you; or
- order that your former partner attend family dispute resolution.
- Note that this is not intended as an exhaustive list of how family court orders can help parties.
Obtaining a family court order
In order to obtain a family court order, you need to apply to the Family Court by filing the relevant parenting application.
However, in most cases, applications must be supported by:
An Initiating Application;
A copy of your marriage certificate;
If you weren’t married, a copy of your children’s birth certificates;
Certified copies of any existing family court orders;
A sworn statement covering all evidence (usually referred to as an Affidavit); and
An Family Dispute Resolution (often referred to as “FDR”) Certificate provided by an Family Dispute Resolution practitioner.
After you have gathered the above documents, you can file the documents on the eCourts Portal.
Family Dispute Resolution
The first step is to participate in family dispute resolution. The legislation requires that this step be taken before applying for any family court order. This will likely result in an organized mediation between yourself and the other party with an accredited mediator trained to help parties try to come to an agreement, and avoid intervention by the Family Court.
When you apply for an family court order, you will need to include evidence of your attempts to resolve the issues through Family Dispute Resolution. This evidence comes in the form of a certificate provided by the FDR practitioner.
In some cases, you may apply for an exemption of this requirement. A person is entitled to an exemption from providing a certificate if there are reasonable grounds to believe that the matter is urgent because child abuse and/or family violence is a factor. In such cases an exemption form may be submitted. This is often the case where there are Family Violence Restraining Orders (often referred to as “FVRO”) are in place.
Parenting Plans vs Consent Orders
A parenting plan in itself is not enforceable, but provides the Family Court with an insight into the prior parental arrangements, when making a decision on family court parenting orders. If you and your former partner can negotiate a parenting plan that works for the both of you, you can apply to the Family Court for a ‘consent order’. A consent order is a written agreement which has been made between the parties without the Family Court making a decision. It becomes legally binding once submitted to, and approved by the Family Court. If you can negotiate this outcome then this is preferable because it can save you money, as well as giving you both greater flexibility in determining your parenting arrangement.
An application for a family court consent order can be made through submitting a Family Court form with an attached copy of the agreed consent orders.
Parenting Order
Where parties have failed to reach a parenting agreement and a parenting application is made to the Family Court, then a parenting order is an order made by a decision maker of the Family Court upon hearing the application for orders and considering all the evidence before the Family Court. This parenting order will dictate to the parties on their parenting arrangement. A parenting order will most likely address who the children live with, how care is to be shared by either party and any other issues relating to parental access or their wellbeing and development.
Applying for an Interim Order
Normally an interim order is a temporary measure which binds parties until the Family Court makes a final decision in the Family Court proceeding. A party applying for final orders will normally include the interim orders sought together with their application. This forms part of the party’s Initiating Application to the Family Court.
However, if the matter is urgent, you may also write a letter to the Duty Registrar of the Family Court explaining the urgency and request an earlier date.
Applying for a Recovery Order
A Recovery Order is a means of enforcing a parenting order. It is appropriate where there is an existing parenting order which is not being followed. If the children’s location is unclear, the police may assist to ensure that the children are returned to you.
You may apply for a recovery order if you have parenting orders or a formal written agreement that the children usually live with you, and your former partner is refusing to return them; or there has been parenting orders or a formal written agreement as to arranged visits which is not being followed.
A recovery order will only be made if the Family Court believes it is in the best interests of the child. If you believe your children are at risk, and you do not have a parenting order, you can apply for a recovery order at the same time as applying for a parenting order.
Recovery orders may become necessary where the children are removed from the care of the other parent. The removal of children, a threat to do so, and a disappearance can be international, interstate or within a state; each calling for a different response. These usually take the following forms:
- Flight risk within Australia
- Overseas flight risk
- Child passport alert
- Overseas child abduction
- Unilateral relocation within Australia
- Disappearance by other party with the child
Steps that you should take in each of the above scenario are set out below.
Flight risk within Australia
If you have reason to believe that the other party intends to move interstate or out of the region with a child without your consent, you should make an urgent appointment to see an Family Dispute Resolution (‘FDR’) provider, then urgently send a letter to that party or their lawyer regarding your concerns.
Unilateral relocation within Australia
If you are aware of your child’s whereabouts, you will need to apply to the Family Court for an urgent listing, and either a recovery order or an injunction against the other party. An applicant may apply for a recovery order whether or not a parenting order is in force. Once the application for a recovery order is filed, the Family Court must make a decision on that application, or list it for an urgent hearing. The Family Court cannot adjourn it for a mention hearing only.
Disappearance by other party with the child
In the event that the other party disappears with the child, you will have to make every effort to ascertain the other party’s whereabouts. You may apply to the Family Court for a location order. The location order will require a person (i.e. friend or family member), or a Commonwealth department to inform the Family Court registry of the respondent’s address. If the child still cannot be located through the location order, the Family Court may make further orders such as a Commonwealth information order, or a publication order.
Overseas flight risk
A parent who believes that the other parent may cause the child to be of overseas flight risk may place the child’s name on the Australian Federal Police watch list. This will prevent the child from leaving any international airport, or seaport in Australia. To do this, a parent must:
Have a Family Court order prohibiting the child’s removal from Australia; or
Show that the parent has applied for such an order from the Family Court.
Child passport alert
To prevent a party from applying for the child’s passport without your consent, you must lodge the Department of Foreign Affairs and Trade’s Child Alert Request form at any Australian Passport Office. A parent or person with parental responsibility for a child is entitled to do this. Such a request warns the passport office that the other party may apply for a child’s passport without consent.
Overseas child abduction
Australia holds a treaty with most other countries in relation to international child abduction. The court of such a country to which a child (below the age of 16) has been removed from a parent’s custody is required to make an order for the return of the child to his/her home country, upon request by a parent.
Consider other avenues
Generally, the Western Australian law prefers that family issues be resolved without going to Family Court. You may consider approaching our lawyers to arrange a Family Practitioner to conduct mediation with your former partner and or other dispute resolution methods, before you approach the Family Court. The outcome of such would be a parenting agreement which is not legally binding until submitted to the Family Court for approval as discussed above.
Concluding thoughts
The best interests of the child will always the guide that any decision maker of the Family Court will use before making a decision based on the evidence before them. If your former partner is withholding your kids, you may make an urgent parenting application, but this should not be your first or final solution.
Navigating through family law court proceedings can be daunting, confronting, and tedious. We can assist you to negotiate with your former partner without having to meet in person. We can also assist with family law advice to will help you navigate your rights, responsibilities and options. If you have any questions, please do not hesitate to get in touch with us, or book in to see one of our lawyers for an initial consultation.