Shann Family Lawyers has now merged to form Culshaw Miller Lawyers Perth. Read more about our property legal services here > Children Matters – Family Law

General Principles regarding Children’s Issues

The fundamental principle that the Courts look at when assessing children’s matters is what arrangements would be in the best interests of the child. There are, of course, important legal considerations in determining what is in a child’s best interests and a range of matters that must be considered in working out what would be in a child’s best interests.

A child’s wishes are one of the considerations that will be taken into account when assessing what is in his or her best interests. However, the significance of those wishes will vary from case to case, depending on the circumstances. Generally, the older and more mature a child is the more weight will be given to the wishes expressed.

There are many other factors which a Court is required to look at before determining what might be in a child’s best interests including the nature of a child’s relationship with each of its parents, the parents’ attitude to their parenting responsibilities, the impact of changes in the child’s circumstances and the need to protect children from abuse of any kind.

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Disputes over Arrangements for Children

When parents separate, difficult decisions often need to be made regarding the welfare and future care of their children. Those arrangements might include with whom the child will live, how much time the other parent should have and when that time should take place and other arrangements regarding the child’s care and welfare (like schooling, religious upbringing and extra curricular activities).

Often parents (and others who may have a significant role in children’s lives) are able to agree about arrangements for children. If so, matters can be finalised by consent orders in the Family Court in much the same way as resolving property disputes. Neither party needs to go to Court; it is simply a matter of documenting the arrangements properly (preferably after receiving legal advice) and filing those documents in Court. Then all parties have an enforceable agreement. When circumstances change, it is possible to put arrangements in place even if they have been formalized in consent orders.

There are many organisations offering mediation and counselling services to assist parents to make appropriate arrangements for their children. Relationship counselling is about finding better ways to communicate and treat the other person after a relationship has broken down rather than trying to get the relationship back together.

If parents can not agree, either parent can commence proceedings and ask the Family Court to resolve the dispute through a trial. In time, the matter will come before a judge and each party will have an opportunity to put their case forward as to why their proposals are better than the other.

Interim Arrangements for Children

Procedures are available for interim arrangements to be heard in the Courts before a Magistrate who will put in place some temporary arrangements until a judge makes a final decision on the case. These interim matters are generally decided within a short time after an application is made and on the basis of written material submitted by the parties.

If you have separated in acrimonious circumstances and there are disputes about the appropriate arrangements for the children, you should obtain advice as soon as you can. Delay will not assist your case and you may be left with an unacceptable situation for many months before the matter can be brought before the Court for a final decision.

Contravention of Court Orders for Children’s Arrangements

It is possible in serious circumstances to get matters before the Court very quickly. For instance, where a child has been abducted or not returned after spending time with the other parent.

In less serious matters, for instance where a parent does not return or collect a child on time or where a parent refuses to allow contact as ordered, proceedings may be brought against the other parent for contravening Court Orders.

Again, it is always a wise move to obtain legal advice as to how the particular circumstances of your case are likely to be dealt with by the Court.

Relocating Children out of Western Australia or outside Australia

Unfortunately, there are situations after a relationship has broken down where one party wants to move away and take the children with them.

These cases present some difficult decisions for parents and for the Courts. There have been several judgments in recent times where the Family Court has sought to provide some guidance as to the principles and considerations that will apply in these situations.

The cases are not easy and must be looked at in their own context. The particular facts of each case have to be carefully considered before a decision can be made.

There are cases that have allowed a parent to move from the jurisdiction and cases that have prevented them from going. It is not possible to state that a parent will always be allowed to go with children if that is their wish nor is it correct to say that they will always be prevented from going if the other parent does not agree.

What is vitally important is what is in the best interests of the children and each party’s proposals for the care of the children will be relevant.

Surrogacy

In 2008 WA passed a law that allows for surrogacy under very strict rules. Prior to this time, it was illegal to be involved in any surrogacy arrangements. There are several reasons for choosing surrogacy.

The woman may be unable to carry a child herself because of an absent uterus or abnormalities of her uterus or because of a health condition which carries dangers if she is pregnant or gives birth.

Surrogacy is the process whereby embryos created by IVF for one couple are transferred to the womb of another woman who will bear the child and return it to the couple.

Commercially arranged surrogacy remains illegal.

Who can Apply for Surrogacy?
There are some basic rules for surrogacy that you may like to discuss with your doctor. The key aspects of the law in WA include:
The couple (or “arranged parents”) must live in WA and one of them be 25 years of age or older; The couple must be heterosexual and either:
– Have been unable to conceive a child; or
– Though fertile, may conceive a child affected by a genetic abnormality or disease.

Requirements for the Approval of Surrogacy Arrangement

Approval for a Surrogacy Arrangement requires:
– The birth mother to be at least 25 years old:
– The birth mother has already given birth to a live child:
– The arrangement is set out in a written agreement; and

The Western Australian Reproductive Technology Council is satisfied that at least 3 months before they approve the arrangement that each party to the arrangement has:-
– Undertaken counselling;
– Been assessed by a psychologist;
– Received independent legal advice;
– Obtained a medical certificate as to their suitability; and
– The birth mother has not yet become pregnant under the Arrangement.

Provision of Legal Advice

Shann family lawyers provide complete legal services to comply with the requirements of the Surrogacy Act, whether for the Arranged Parents or the Birth Parent(s).

This includes:
Consultations to provide legal advice in relation to surrogacy matters;
Provision of written legal advice to comply with the legislation;
Negotiation and Preparation of Surrogacy Arrangement agreements;
Preparation of approved Plans required when application is made to the Family Court for a Parentage Order;
Preparation and lodgement of Applications, and associated documents, for Parentage Orders at the Family Court; and
Providing legal representation at Court as may be required.

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