9 Steps to Parenting Orders: Western Australia

If you live in Western Australia and can't agree on parenting with your former partner, follow the steps below to have the Family Court of Western Australia (FCWA) make parenting orders. The steps can vary slightly for each case.

Parents who live in other parts of Australia should follow the steps for the Federal Circuit & Family Court of Australia instead.

If you're divorcing, both courts will handle child-related issues independently from other aspects of your divorce.

At any point, you can end the below process by making a parenting plan with the other parent and having the court convert it to a consent order. Make this your priority; litigating takes years and stresses everyone in the family.

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Step 1: Preparation

When you apply for a parenting order, you must turn in a certificate showing that you tried to agree with the other parent through a court alternative. You're exempt if your matter is urgent or involves family violence.

You should seek legal advice before lodging an application with the court. If you can't afford a lawyer, check whether you qualify for legal aid. The FCWA's duty lawyer helps parents for free, but they don't have much time and can't provide ongoing help or represent you at trial.

Note that you must disclose all relevant information to the other parent now and throughout the steps below.

Step 2: Application

You're the applicant if you open the case. If you're the other parent in the case, you're the respondent.

To open a case, lodge an application with an affidavit and supporting documents. You can do this online or at the courthouse. Unless you qualify for a fee exemption, you'll have to pay — usually several hundred dollars, depending on what you ask the court to do.

The affidavit is crucial. It's where you lay out the facts of your case and attach evidence. Judges and magistrates typically don't allow parents to discuss information in court that is not covered in an affidavit.

Your application must state whether you want interim orders before your final orders. Most parents do because the court doesn't make final orders until trial, which can take more than two years to get to. It issues interim orders more quickly and eventually replaces them with final orders (or with consent orders if parents settle).

If new issues arise during your case, either parent can request additional orders by filing an application in a case. But this adds more hearings and time to the process, so try to address all concerns in your initiating application.

Following application, the court assigns you a judicial officer, who stays with your case throughout the next several steps. Most cases get a magistrate, but complex cases may be assigned a judge instead.

Step 3: Service

Once you apply, you need to serve the other parent. This means you have someone hand them copies of the court documents. This person and the parent each fill out a form confirming that service took place, and you file these forms with the court.

Some cases: Urgent hearing

You can request an urgent hearing in your application if your child faces an imminent risk. Here, your judicial officer asks questions about your affidavit and makes decisions that can't wait.

This hearing happens within days or weeks of lodging your application. Like most hearings, it is open to the public and may take place in front of people not involved with your case.

If necessary for safety, this hearing can take place without the other parent knowing — ex parte in legal terminology. In this case, the court would give you permission to delay serving the other parent until after your urgent hearing.

Step 4: First hearing

A first hearing (called a first return date if you had an urgent hearing) is for assessing what information the court needs and for taking care of short-term issues.

It happens about six weeks after you open a case. It usually lasts around 20 minutes, but expect to wait much longer for your turn.

Usually, a family consultant sits in the witness box so your judge or magistrate has a child expert to turn to. This psychologist or social worker is with your case until the end.

Before adjourning, your judicial officer will tell you the next steps. For instance, they may require a parent to get an assessment or treatment. For complex issues like abuse, they might appoint an independent children's lawyer (ICL), who represents your child's best interests by meeting with the child, doing research for the officer and participating in court alongside you or your lawyer.

The officer may also grant interim orders applied for, or they may wait until they have more information at a later hearing.

Some cases: Case assessment conference

Where the judge or magistrate thinks a child may be at risk with a parent, they send both parents to a case assessment conference six weeks after the first hearing. Here, the family consultant meets individually with each parent, who can bring a lawyer.

The consultant asks the parents questions to better understand the family's circumstances. If they sense the parents may be able to compromise, they can bring them together for a discussion.

The conference lasts up to two hours, and some families have a follow-up later, which sometimes include the child.

After the conference, the family consultant writes a report for the court with recommendations. Parents (or their lawyers) also get a copy.

Keep in mind that the conference is not confidential and anything you say in it could be shared with the other parent or the court.

Step 5: More hearings

The hearings that come next depend on your case. You're likely to have several procedural hearings, where the officer makes decisions to manage the case and tells you what to do before trial.

If you had a case assessment conference, you have a hearing a few weeks later so the judicial officer can consider the consultant's recommendations.

If either parent requested interim orders that have not been addressed yet, the judicial officer rules on these in an interim hearing.

Some cases: Expert report

One thing your judicial officer might do in a hearing is order a report: either a family report or a single-expert-witness report.

This happens when the officer wants more information after a case assessment conference or when a parent or ICL requests a report. Parents can also agree to arrange a single-expert-witness report without a court order.

For both types of reports, the expert interviews the parents, the child and other relevant people. (Children are never forced to share opinions.) This process can take several months.

Whereas a family report is written by your family consultant for free, a single-expert-witness report is prepared by a social worker, psychologist or psychiatrist whom both parents pay.

Parents (or their lawyers) receive a copy of the report, as does the judicial officer. The expert usually testifies about their findings in trial if the case doesn't settle first.

Step 6: Readiness hearing

This hearing is for determining whether parents are ready for trial. You may face a long wait to get a readiness hearing due to a backlog in the court.

Before the hearing, you must file the documents required by your judge or magistrate. This includes your trial affidavit, your witnesses' affidavits and an Undertaking as to Disclosure, which lists the evidence you've shared with the other parent (and with the ICL if your child has one).

You must also pay your trial fees and serve any documents as necessary.

At the hearing, you'll plan administrative details of the trial with the judicial officer, such as who can serve as a witness.

Step 7: Callover

A callover is for assigning a date and judicial officer for trial. You will probably not be assigned the judge or magistrate you had up until this point.

If you're willing to take any trial date, you and your lawyer can skip the callover. Mark that you plan to do so on your callover certificate, which you have to turn in beforehand regardless.

Assuming you attend, step up to a microphone when the officer calls you, and confirm whether the date offered works. Be flexible; if you can't find a date that works, you'll have to try again in the next available callover, which could be months away.

Usually, your trial starts at least six weeks after your callover. The date assigned will probably represent the earliest your trial could begin. This gives the court several days' flexibility in case other trials run long.

If you need an exact starting date (e.g., because a parent or witness has to travel far), say this in your callover certificate.

Step 8: Papers for the judicial officer

Your judge or magistrate will probably order you to file papers that help them prepare for your trial. Aptly called papers for the judicial officer, these should list:

  • The orders you've requested
  • The evidence you have ready
  • What you've agreed with the other parent
  • How each consideration in Section 60CC of the Family Law Act (for separating/divorcing parents) or Section 66C of the Family Court Act (for unmarried parents) applies to your case
  • Important events in chronological order
  • Any legal precedents that apply (not required)

Do this in one document. You can follow the example provided by the court. Don't mention information that isn't included in your trial affidavit or one of your witnesses' affidavits.

Unless your officer says otherwise, you must file the papers at least 14 days before your trial's assigned date. You must also serve the papers to the other parent (and to the ICL in the case, if applicable).

Step 9: Trial

It's crucial you try to reach an agreement with the other parent to avoid a trial. A trial places stress on entire families and can cost parents over $100,000 in legal fees each. Plus, you may not get to a trial until two or three years into your case.

Where you do go to trial, your judicial officer decides the exact procedures, but generally:

  • The applicant may give an opening address (a brief explanation of the dispute).
  • The applicant is sworn in and sits in the witness box. They may correct errors in their affidavit, explain new evidence that has arisen and respond to the other parent's affidavit.
  • The other parent questions the applicant about disputed facts.
  • The applicant calls a witness and asks them whether the witness' affidavit is true. The applicant may request the officer's permission to ask about other evidence.
  • The other parent questions the witness about disputed facts.
  • The applicant may ask the witness clarifying questions or go straight into calling their next witness.

Once the applicant has called all their witnesses, this process repeats for the respondent. If the case has an ICL, the ICL also participates, presenting evidence and questioning witnesses. Typically, someone calls the family consultant as a witness.

To conclude, the judicial officer asks the parents and ICL, if applicable, for a closing address (a summary of main points).

If you have a lawyer, they do the bulk of the talking for you. You generally will only speak to give testimony and to answer resulting questions.

If you seem close to an agreement with the other parent, the judicial officer will adjourn to let you negotiate. Negotiations normally happen immediately in a courthouse meeting room. If parents don't have lawyers, a registrar facilitates.

Unless you reach an agreement, the judicial officer decides on all the issues parents requested final orders for. They often don't announce decisions until weeks or months later. The court tells you whether you should return for the announcement or get the judgment by post.

Information for respondents

When you receive an application for parenting orders lodged by your co-parent, you need to officially respond.

If you agree with the requests, tell the court in a letter (and give a copy to the other parent) or inform the judge or magistrate at your court date.

If you don't agree, file a response — in which you can make different requests — and an affidavit. You also need to pay filing fees. You can do all this online or at the courthouse. Then, attend the hearing listed on the application you received.

Throughout court proceedings

Going to court for parenting orders requires serious organisation.

You need to present the judge or magistrate with strong evidence in a neat, easy-to-follow format.

You may want to prepare a parenting journal, a calendar of when you care for your child, a report on messages exchanged with your co-parent and more.

The Custody X Change app lets you create and manage all of this in one place. It helps you prepare for every step of your case.

Take advantage of custody technology to get what's best for your child.

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