Frequently Asked Questions
This is general information only, and is not intended as a substitute for legal advice.
You should always seek specific independent legal advice about your situation and circumstances.
After I separate from my partner, how can I get custody of my children?
The term ‘custody’ is no longer used in Family Law, and in Family Court proceedings. The terminology relating to where a child or children live, and the time that they spend with the other parent or other people significant in the child’ s life, has changed. Now, the terms ‘live with’ and ‘spend time with” are used in parenting orders made by the Family Court of Western Australia (‘the Court’).
If you and your estranged partner agree about the parenting arrangements, including where the children will live and how much time they spend with each parent, then you may choose to document that agreement. However, you do not need to document the agreement. Your arrangements for the children following separation can be verbal and informal.
There are circumstances where it is appropriate to document the agreement, and/or formalise an agreement. You can document an agreement by using a “Parenting Plan”, or by making an Application to the Court for Consent Orders (Form 11).
A Parenting Plan is simply an agreement in writing about the parenting arrangements that is signed by both parents, and dated.
Consent Orders relating to children, are orders that are pronounced by the Court, detailing in a formal way, the arrangements that you and your partner have agreed upon. Consent orders pronounced by the court, are a court order, and are generally enforceable. There are circumstances where it may be appropriate not to comply with a court order, but these situations are limited. It is very important to seek legal advice without delay if you are considering breaching an order, or there are court orders in place and there is a risk to a child or children, or to any other person if you comply with the orders.
If you cannot reach agreement about where the child or children will live, then you can apply to the Court for a determination. However, before you make an application to the Court, in most circumstances, you will need to attempt Family Dispute Resolution (FDR) and obtain a certificate from a Family Dispute Resolution Practitioner, prior to making an application.
There are certain situations where you may be exempt from having to attempt FDR, but they are generally confined to circumstances of an urgent or exceptional nature. It is important to always obtain legal advice before considering court action, and do not delay obtaining advice, where you believe there is an urgent risk or issue.
What is “Parenting Responsibility”?
Parental responsibility involves all of the duties, powers, and responsibilities and authority which parents have in relation to their children. It includes decisions such as schooling, health and religion.
When parents are living in an intact relationship, each parent has parental responsibility for their child or children. That does not change once the parents separate, regardless of with whom the children live.
Unless the Court orders otherwise, each parent has parental responsibility. When parties make an application to the Court, in most cases the Court orders equal shared parental responsibility. Equal shared parental responsibility is not the same as equal shared care.
How do I stop my former partner from leaving with the children?
The Court has the power to restrain a person from leaving a town city or State with the children. You should seek urgent legal advice if there is a risk that the other parent will remove the child or children.
What can I do if my partner is violent or threatening violence towards me or the children?
You should call the police if your spouse or partner has harmed you, or the children, or is threatening to harm you and/or the children. You may also have grounds for a Violence Restraining Order. You can apply for a Violence Restraining Order at any Magistrates Court in Western Australia. Family and Domestic violence does not just include physical violence but can include threats or behaviour which causes a party to fear for their safety or that of their children. You should also seek urgent legal advice.
What is Separation?
Separation occurs when one party decides that the relationship has irretrievably broken down, and acts in a manner consistent with that decision. Communication to the other party of the separation is generally required. It usually results in one of the parties leaving the home, although couples can live together and apart under the same roof. Generally, this is referred to as ‘separation under the same roof”. A ‘legal separation’ in the sense of requiring a document or Court order is generally not necessary.
How long do I have to wait after separation to do a property settlement with my ex?
Either party to a marriage or de facto relationship can make an application to the Court any time after separation. The Application can be an Application for Consent Orders (Form11) if you have reached agreement, or a Form 1 (or Form 1A if you are responding to an Form 1 Application) if you can’t agree and need the Court to decide.
If you can’t reach agreement, and need to file a Form 1 Application, you need to comply with “Pre- Action Procedures”. Brochures are available from the Court’s website, explaining these procedures.
If you were married, then you have 12 months from the date the Divorce was finalised, in which to file your Application.
If you were in a de facto relationship, you have 2 years from the date of separation in which to file your Application.
How can I get a Divorce?
A Divorce is simply the legal dissolution of a marriage. It has nothing to do with any property of the marriage. Divorce Applications are generally straightforward applications that either the Husband or the Wife (or both) can make when they have been separated for at least 12 months. An Application for a Divorce can be obtained from the Court’s website www.familycourt.wa.gov.au.
Sometimes, Divorce Applications can be less straightforward. Situations where Divorce Applications may become more complex are in situations such as where the other party cannot be located, or where the parties have been separated under the same roof, or if there is a difficulty in obtaining or proving the existence of the marriage certificate.
Do I need to do a formal property settlement?
It is not necessary to formalise arrangements with children. However with financial issues, you should always seek legal advice about your rights and entitlements and the implications and consequences of not having ‘orders’ made in the Court (either by Consent or otherwise) pertaining to the division of assets of the marriage or relationship.
Do we have to include our Superannuation in our property settlement?
All of the assets, liabilities and financial resources of both parties, either held solely or jointly, must be included in any property settlement. The Court must be made aware of all of the parties’ assets, and financial resources, including Superannuation. This applies whether the parties’ are filing a Form 11, or making an application to the Court for a determination.
For married couples, superannuation (in Western Australia) is classified as property, which is capable of being divided. For de facto couples, (in Western Australia) superannuation is not property, but a financial resource.
For married couples, the Court has the power to make Superannuation Splitting Orders. This means that some or all of one party’s superannuation can be rolled over to the other party’s superannuation fund. Whether or not the Court makes a super splitting order is discretionary.
If the parties have reached agreement about the division of the assets of the relationship or marriage, that agreement may or may not include superannuation splitting orders.