Upon separation, you and your former partner will need to consider how you would like to care for your children. Many couples are able to come to an agreement about how their children should be cared for and what is in their best interests. Where parents cannot reach an agreement, they may need assistance to reach an agreement or, as a last resort, need to have a court decide the matter. The same is true for parents who have never been in a relationship.

The Best Interests Considerations

When the Court is considering a care arrangement for children, its primary concern will be the best interests of the child. In deciding what is best for a child, the court must consider at least those matters set out in the legislation.

The legislation says there are two types of considerations; primary and additional. It is important to note that the primary considerations can be outweighed by the additional considerations, depending on the circumstances of the case.

The primary considerations for the best interests of a child are:

• That a child has a meaningful relationship with both of its parents; and

• That a child is protected from exposure to, or risk of exposure to, family violence and/or neglect.

In the event that those two considerations are in conflict (for example where there is an allegation of abuse of the child by one of the parents), the need to protect a child from neglect or abuse is more important and must be given more weight. This is because the first and most important consideration for any child is to keep them safe from harm.

There are numerous additional considerations including:

• The wishes of the child. The Court will attribute weight to a child’s views, depending on the child’s age and maturity;

• The nature of the child’s relationship with their parents and any other person connected with that child (including grandparents and step-parents);

• The extent to which each of the child’s parents has taken, or failed to take, the opportunity to be involved in the care of the child;

• The extent to which each of the child’s parents has taken, or failed to take, responsibility in meeting reasonable costs of the child;

• The likely effect that any proposed change to a child’s care arrangement would have on the child, including separation from either parent, a brother or sister, another relative or any other person the child has lived with;

• The practicability and expense of a care arrangement;

• The maturity, gender, lifestyle and background of the child;

• The importance of keeping the child connected to its cultural heritage;

• The parent’s attitude towards the child and parenting generally; and

• Any other factor that could be relevant to considering whether an arrangement for a child’s care is in the child’s best interests.

What is important to keep in mind when thinking about these considerations is the fundamental focus; the best interests of the child. One must place themselves in the shoes of the child and think about what is best for them.

What is an appropriate care arrangement?

Ultimately, it depends on what is in the best interests of the particular child or children. If you and the other parent have come to an agreement about care that allows for the children to maintain a safe and meaningful relationship with both parents, which allows for regular quality contact; if you seek a court order to put that into effect, the Court is likely to accept that arrangement. However, you do not need to have a court order; a court order is useful to help enforce your arrangement but it is not required and may be quite costly.

If you are having difficulties reaching an agreement about care of a child, you may wish to consider seeking legal advice.

In any event, parents of a child will normally end up with one of the following care arrangements:

• Equal-shared care;

• Primary care to one parent with significant and substantial care to the other parent;

• Primary care to one parent and limited contact with the other parent; or

• Sole care to one parent.

Equal Shared Care

If you are in court, and the court decides both parents should have ‘equal shared parental responsibility’, then it has been decided that you must share decision making about major long term issues. If the court makes that order, then it must consider whether it would be practicable, and in a child’s best interests, for the child to spend equal time with both parents.

Practicability comes down to whether or not it would be easy for both parents to facilitate time between their two homes, as well as the child or children’s schooling and extra-curricular activities. This is normally proven if both parties live within a close proximity to one another or the child or children’s school.

If an equal care arrangement would be practicable, the Court then considers whether such an arrangement is in the best interests of the child based on the factors set out above. There is no right to equal shared time.

Equal shared care is often arranged by a child spending one week at a time with each parent, and sharing Christmas, Easter and birthdays with either parent. However, this arrangement can also be done on a 3-day/4-day rotation or any other arrangement that meets the definition of roughly half the time being spent with each parent. However, time is calculated by reference mostly to nights, so it is the number of nights that are used to calculate how time is divided. This is true for child support also.

While equal shared care will work for some children, it will not necessarily be the best arrangement for all children. For example, the parents’ work commitments, where they live, the child’s schooling, the child’s age and other factors may well suggest that some other arrangement is better for the child.

Primary Care with significant and substantial time to the other parent

Primary care of a child involves one party having the majority care of a child.

In circumstances where one parent has primary care of a child, the Court will be conscious that the child will have comparatively less time with the other parent. The child’s meaningful relationship with the parent without primary care must still be facilitated and maintained. Thus, the law says that if one parent has primary care of a child, then where it is in the best interest of a child to do so, the other parent ought to have significant and substantial time.

Significant and substantial time is characterised as being anything less than 5 or 6 nights a fortnight, including overnight time. This overnight time ought to take place both during weekends and weekdays, so that both parents are involved with a child’s regular schooling and recreational routine.

It is important that children are able to spend weekend time with both parents, as well as having both parents involved in their schooling and extra-curricular activities.

Primary Care limited contact with the other parent

In some circumstances a court may consider it is best that a child spends defined, and limited, time with the non-primary carer parent. There are a range of reasons why a court may reach this conclusion including:

• Safety issues arising from family violence or mental health or drug related issues;

• The parent is not well known to the child; and/or

• The child does not wish to spend more time with the parent.

Where family violence is a factor, the Court may prefer that a child spends a little time with their other parent, but under supervision of a family member or, more commonly, a professional child care supervision service. For further information on supervision, see our “Supervision” tab.

Sole Care

Occasionally, a court will give all the parental responsibility for a child, including where the child lives and who they have contact with, to one parent alone. These are rare circumstances and only arise where there is no benefit, and possibly a danger, to the child in seeing the other parent.

When considering whether a parent ought not to have contact with a child, the Court still applies the best interest considerations. As noted above, whilst the Court has to consider the possibility of a meaningful relationship with both parents, it is more important that the child is protected from a risk of harm or abuse (if there is one).

Should you require any further information on the care of a child, or wish to explore care of your child in your particular circumstances, you ought to consider seeking legal advice or attending a family dispute resolution service.

Parents may not be the only people in a child’s life with an interest in how a child is cared for when the parents are not living together. The law recognises the role of extended family members in a child’s life and those people are able to be involved in Court proceedings, as a child’s care is finalised.

Grandparents

Grandparents hold an important place in the life of a child. In many situations, grandparents are involved in the day-to-day care of a child or, at least, spend regular time with a child so as to develop a meaningful relationship with them.

In some circumstances, a grandparent may be involved in the consideration of a child’s future care. This is normally done if:

1. One or both of the parents are not able to care for the children properly; or
2. A grandparent is seeking contact with a child; or
3. One or both of the parents are trying to prevent a grandparent from spending time with a child.

If neither parent is able to care for a child, grandparents who wish to seek care of a child may do so in the Family Court. Grandparents are a specified class of people who may bring an application for care of a child in the Family Court. Whilst a primary consideration in determining a child’s best interests includes maintaining a meaningful relationship with both their parents (see above under 2.2), this is trumped by the need to protect a child from exposure to abuse or neglect.

If you are a grandparent who thinks that they may need to make an application for care of a grandchild in circumstances of family violence or neglect, you should consider seeking legal advice, contacting Legal Aid, the Department for Child Protective Services or the Family Court of Western Australia.

Alternatively, if you are a grandparent who is seeking to spend time with a child and either or both of the parents are preventing you from doing so, you may be able to become involved in negotiations and Court proceedings. However, it should be kept in mind that, whilst it is required by the Court to consider a child’s relationship with their grandparents, the primary considerations include maintaining a meaningful relationship with a child’s parents. Thus, the views of the parents and their reasons for refusing contact will be considered.

For more information, you may wish to consider seeking independent legal advice.

Step-Parents

In your separation, you may be concerned about the care of a child who is not your biological or adopted child. There are many blended families who separate and step-parents may, very naturally, wish to remain in a child’s life. However, as with all decisions about children, the question will be what parenting arrangement is best for the child.

If a child regards you as their “parent”, or you have stepped in as mother or father to a child in the absence of their biological parent, it may certainly be in the best interests of a child for them to spend time with you.

Like a grandparent, a step-parent may make an application in the Family Court of Western Australia for the care of a step-child.

Factors that will affect a step-parent’s decision to make an application (and any court decision) include:

• The nature and length of the child’s relationship with the step-parent;

• The existence of any half- or step-siblings that a child may have via the step-parent;

• Whether the step-parent acted as primary carer for the child; and

• The wishes of the child to continue a meaningful relationship with their step-parent.

Circumstances where step-parents are involved can be complicated, as this can often lead to a three-party approach: the two biological parents and then the step-parent. It is important for all parties to remember to keep the child’s best interests in mind in discussions about the child’s care.

If you are a step-parent who is considering care of a step-child, you may wish to consider getting legal advice.

Other Interested People

The law also allows for “any other interested person” to make an application in the Family Court for an order relating to a child’s care. This is commonly used by extended family members, including adult siblings and aunts and uncles.

Whilst any other interested person may make an application for a child’s care, the Court will still decide on the care of a child in light of their best interests. In that respect, even though a person can make an application, it doesn’t meant that their application will be successful.

For more information on the considerations that the Court will take into account when making an Order for a child’s care, see our Care of a Child tab.

If you would like to learn more about your particular circumstances, you may wish to consider seeking legal advice, Legal Aid or contacting the Family Court of Western Australia.

Many parents are able to come to an agreement about how they will share care of their children. The parties can then finalise this agreement by way of Court Orders or by Parenting Plan.

Court Orders can be applied for jointly with the consent of the parents, to give certainty and enforceability to an agreement. The parties will have to fill out particular forms for the Court and meet particular criteria. For more information on Consent Orders, see our Application for Consent Orders tab.

Alternatively, some parents will wish to finalise their matter by way of a Parenting Plan. A Parenting Plan is not enforceable in the Court or by the Police and does not get filed in the Family Court. However, it can be done outside of Court by the parties without the need for involvement by the Court (or lawyers) and can be fairly quick to draft. Parenting Plans are most useful in circumstances where the parties are amicable and there is trust between them.

The Family Court encourages parties to examine whether they can finalise their children’s matters by Parenting Plan. A Parenting Plan allows for a great deal of flexibility and puts the parents in charge of the child care process. Whilst Parenting Plans are not dealt with in the Court, they are still subject to the law. A Parenting Plan overrides any prior inconsistent court order.

Drafting a Parenting Plan

There are particular criteria that Parenting Plans need to meet in order to satisfy the law and be classified as a “Parenting Plan”.

1. The Parenting Plan must be documented in writing;
2. It must be entered into freely and willingly by both parties, and without duress or coercion;
3. It must be signed and dated by both parties; and
4. It must deal with the care, welfare and development of a child.

The Parenting Plan may also include how the parties wish to divide their property, however that will not be a legally recognised part of the agreement.

A Parenting Plan typically includes some or all of the following:

• Who has Parental Responsibility for major long term issues;
• Who the child lives with;
• How the child will spend time with both parents;
• How the child will see other interested people (including siblings, Grandparents, step-parents, extended family members and other important people in the child’s life);
• How the child will communicate with the parent they are not presently living with (eg – a telephone call schedule);
• Where the child spends special days (such as birthdays, Christmas, Easter and other important dates);
• How the parties will facilitate a child’s extra-curricular activities;
• The parenting style that the parties would like to adopt;
• Rules for discipline;
• Rules for health care, religion, education and emotional well-being of the child;
• How future changes to the Parenting Plan are to be made;
• Any other detail of a child’s care; and
• To an extent, child maintenance (for more information, speak with the Department of Human Services, Child Support or your legal adviser).

It is important to note in drafting a Parenting Plan that it must still be done so with reference to the law and in consideration of the child’s best interests. For more information on how the law applies to children’s matters, see our tabs above and consider seeking legal advice.

Changing a Parenting Plan

If you already have a Parenting Plan and are wishing to change it, you must consider these potential changes with your former partner in light of the child’s best interests.

Any changes must be discussed with the other party. You cannot make a change to a Parenting Plan unless both parties agree to those changes.

If you are having difficulty coming to an agreement, you may wish to consider discussing potential changes in Family Dispute Resolution mediation.

Ultimately, if an agreement is not reached and you still wish for those changes to be made, and you believe them to be in the best interests of the child, you may have to proceed with your matter in the Family Court of Western Australia. Unless there are circumstances of urgency or family violence, you will not be able to do so without first having attended Family Dispute Resolution mediation.

For more information on proceeding with any matter to Court, you can go to our Commencing an Application tab above and should consider seeking legal advice.

If a Party is not following a Parenting Plan

Once a Parenting Plan is entered into, it should be followed genuinely and to the parties’ best abilities. If a party is not following a Parenting Plan, then this may be a sign that the parties have to reconsider the terms of their agreement.

Parenting Plans are not enforceable by a Court. Whilst they are evidence of an agreement, their terms cannot be enforced on a party by the Court or the police.

If one parent is not following a Parenting Plan, there are a number of options the other parent can take in finding a resolution. These range from inviting the party to Family Dispute Resolution Counselling to Family Court Proceedings. If you are unsure of how to proceed in your matter, you may wish to consider seeking legal advice.

Resources

A number of relationship and family law organisations have developed brochures and resources for parents considering Parenting Plans. Some of these resources are below:

• The Australian Government’s Family Relationships organisation has drafted a Parenting Plan guide, with templates, which you can access here.
• Relationships Australia has drafted a comprehensive child care and financial agreement brochure, with templates, which parents can download here.
• The Women’s Law Association of Western Australia has drafted a guide on Parenting Plans and Consent Orders, with templates, which you can access here.
• The Department of Human Services has some information on considering Parenting Plans, which you can access here.

You can also instruct a private solicitor to draft a Parenting Plan for you. Additionally, in the course of Family Dispute Resolution, parties can be lead through the drafting process by their Family Dispute Resolution Practitioner.

If you believe that you or a child is in immediate danger, call 000.

Unfortunately, some parents may take it upon themselves to remove a child from another parent’s care, or fail to return a child, without the consent of the other parent.

If someone has removed a child from your care without consent, or failed to return a child when they should, then you may want to contact the Western Australian Police in order to locate the child and the parent who has removed them. In doing so, you may also need to make an urgent application in the Family Court of Western Australia for a Recovery Order.

To do so, you will need to file a Form 1 Application for Final Orders in the Family Court. For more information, see our Commencing an Application tab above.

Your Interim Orders will need to include an Order for the Western Australian Police to recover the child from the individual you believe to be withholding the child, or any other person acting on their behalf. You may also wish to seek an Order that the Australia Federal Police place the child on the “restricted or no flight list”, so that they cannot be removed from the State of Western Australia.

For assistance in drafting and filing your application, you should contact the duty lawyer at the Family Court of Western Australia, or Legal Aid, or see a private lawyer.

For more information:

• Download a copy of the Family Court of Western Australia’s “Recovery Order Kit” here.
• Contact Legal Aid, and access their Recovery Order information page here.

If a child is removed or withheld because you are being accused of being the perpetrator of family violence, you may wish to consider seeking legal advice, or contacting Legal Aid. If these allegations are true, you may wish to consider speaking with a domestic violence helpline or Relationships Australia. You can find more details at our Domestic Violence Support Services tab above.

In circumstances where neither party or a child is at risk, you may wish to consider inviting your former-partner to Family Dispute Resolution mediation. In mediation, you can discuss any issues that either party may have with the other having care of the child and potentially come to an agreement about the ongoing care for your child or children. You can find more information in our Relationships tab above.

If Family Dispute Resolution mediation is not effective and you still are not able to secure care of your children, you may wish to consider seeking an Order for the care of your children in the Family Court of Western Australia. You will need to commence an application in the Court, seeking immediate care of your children as well as a final, ongoing arrangement for care. For more information about commencing an application, see our Commencing an Application tab above.

If your child is taken from your care and relocated overseas without your consent, you will need to contact the Western Australian Police as soon as practicable. You can contact them in an emergency on 000, 131 444 in a non-emergency or visit your local Police station. You may also wish to seek legal advice with respect to legal action that can be taken in Western Australia, however if your child has been relocated to certain countries not covered by reciprocal child protection laws, you may also have to consider international support services.

Before commencing an application, you may wish to consider seeking legal advice, speaking with the duty lawyer at the Family Court or contacting Legal Aid.

In some circumstances, a parent may not be capable of having care of a child without being supervised by another family member or a professional.

Supervision of a parent’s care of a child will normally be in circumstances where there is a history of family violence or abuse, or when one parent has had little exposure to, or care of, the child in the past.

Imposing a supervision requirement on a parent’s care of a child is a serious consideration and should not be entered into lightly. Supervision may be a difficult experience for parents and children, and can also be expensive.

Professional supervision providers are located throughout the Perth Metropolitan Area, as well as some rural areas. Their services can range from little to no cost, to around $100 per hour for supervision services.

Some supervision providers will require the parties to have Court Orders before supervision can be provided.

In most circumstances, the Court will impose a supervision requirement with the hope that it will eventually no longer be needed. However, there may be situations where a final, permanent Supervision Order is required in order to protect the child.

Supervision can also be ordered for handovers only. This will allow a parent’s care to be unsupervised, but a supervision provider will be present as the parents hand over care of the children to one another at the beginning and end of their time. This is usually to prevent conflict between parents at hand over times when they must be in close proximity to each other.

If you would like to learn more about supervision, or are looking for a provider, you can contact one of the providers below. This is a non-exhaustive list, and there are many providers around Western Australia that you can search for.

• The Perth Children’s Contact Service on (08) 9480 0646 or www.perthchildrencontactservice.com.au.
• Anglicare on (08) 9263 2104 or their website concerning metro and rural supervised care here.
• Centrecare on (08) 9325 6644 or their website concerning rural contact services here.
• Relationships Australia on 1300 364 277 or their website concerning child contact services here.
• Safe Oasis Solutions at www.safeoasissolutions.com.au.
• For FIFO workers and their families, Safe Balance, at www.safebalance.com.au.
• Building Bridges at www.buildingbridgesscs.com.au.

One of the hardest things to do in the context of a separation is remaining positive with your former partner. This is especially so if the circumstances of your separation are hurtful or acrimonious. However, despite those circumstances, many couples will still have to continue parenting children.

Children very often see what is going on as their parents separate and will be struggling with their own emotions as they adapt to big changes in their lives. Some children may not understand what is happening or why.

It is important that, wherever possible, both parents work together to provide normalcy and support for their children as these changes take place. It is also important that neither parent involves any child in their conflicts or denigrates the other parent to, or in the presence of, a child.

Here are some tips and guidelines on staying positive in your parenting, during and after separation:

• Consider undergoing counselling or speaking with your doctor if you are finding the separation difficult to deal with. It is entirely natural to feel a range of emotions upon separation, including sadness, anger or disappointment. It is important that you address these feelings and your emotional wellbeing, so that you can also look after your children’s;

• Consider the same for your children. They may benefit from speaking with somebody about the changes they are experiencing and how they are feeling about those changes. Speak with local counsellors and your children’s school for support and feedback. Keep your former partner involved in this process so that they too can give your child all the support they need;

• Try to develop a business-like relationship with your former-partner. You both have the same goal; and that is to care for your children and resolve your differences as effectively as possible. Try to work together with your former partner to meet those goals;

• Remember that you will have to continue being in each other’s lives for a long time. Strive for a healthy co-parent relationship, so that you can easily manage your children’s needs together;

• If you are finding communication to be very difficult, use a communication book. This can be a small notepad that travels with the children during their times with the other parent. You can make entries into this notebook about the children’s care, keeping the other party informed without any prolonged personal contact;

• Consider attending family counselling altogether. A family counselling program can help open the channels of communication and mend any bonds that have been broken with separation; and

• Consider attending a program such as “Mums and Dads Forever”. Mums and Dads Forever is a short course that both or either parent can take to teach them skills on co-parenting after separation and maintaining a healthy relationship with your former-partner. For more about Mums and Dads Forever, contact Anglicare on (08) 9263 2000.

Finally, you may wish to also utilise local support networks, your friends and family, and any church or community groups available to you to help you through this time and keep positive with your former-partner after separation.

Adoption of a child is the permanent arrangement, finalised by Family Court order, for a child to no longer have any legal ties with their biological parent(s), with those rights instead being vested in another individual(s). After an adoption order is made, the child cannot be ‘reclaimed’ by the biological parents and the law applies to the child and their adoptive parents as if the child had been born to them. This extends from the parental responsibility and rights of the new, adoptive parents, to the child’s right to their parents’ estate after death.

Children are adopted for a variety of reasons. However, generally, adoption provides a new family for a child who can’t be cared for by their own parents. In Western Australia, there are roughly 10 – 20 local adoptions each year.

A child is adopted by first being linked to their new prospective parent(s) by an adoption agency. The Department of Child Protective Services (“DCP”) is the only adoption agency in Western Australia. All adoptions must be administered via DCP. To finalise an adoption, adoptive parents must then obtain an adoption order from the Family Court of Western Australia.

Adoption orders are made in the Family Court of Western Australia under the Adoption Act 1994 (WA). The Court can only make an order for adoption if each prospective adoptive parent, and the child, are all ‘domiciled’ or living in Western Australia. If the adoptive child is not an Australian citizen, they must be permitted by the Department of Immigration to remain permanently in Australia.

Adoption of a child generally falls into three different categories:

1. Child adoption (what some might see as a “normal” adoption);
2. Adult adoption (for adoptive children over the age of 18 years); and
3. Step-parent adoption (where the prospective parent is already the adoptive child’s step-parent).

The Family Court makes adoption orders to finalise each type of adoption, as well as additional ancillary adoption orders as required. Any adoption order made by the Family Court must be in the best interests of the child in question.

Upon an adoption order being made, the biological parent(s) of the adoptive child are removed of their parental rights of the child, and those parental rights are then vested in the child’s new, adoptive parents. If any parenting orders are in existence prior to an adoption order being made, those parenting orders are then cancelled upon the adoption order being made.

Adoptions of children from overseas must comply with both Western Australian law and the law of the country where the child is from, otherwise an adoption may fail or not be recognised in Western Australia. If that is the case, then an adoptive parent may not actually have the parental rights in respect of a child that they believe they do. International adoptions must meet additional regulations and often require more paperwork and procedural steps.

Naturally, a step-parent may wish to adopt the child of their partner. Step-parent adoption is available to step-parents who meet the following criteria:

• The step-parent must be married to the adoptive child’s biological parent, or have been in a de facto relationship with them, for at least 3 years;
• There must be a parent-child relationship between the step-parent and the adoptive child;
• That the step-parent’s adoption of the child would be in the best interests of the child and must promote the child’s long-term care and welfare; and
• A reason provided as to why an adoption order would be better than a parenting order (for example, if there is no dispute between any of the parent(s) of the child and the child is not a subject of Family Court proceedings already).

Adoption can take a fair amount of time and a child you seek to adopt at birth may be over 12 months old by the time an adoption takes effect. However, you may be able to commence more immediate care of a child by fostering the child ahead of adoption. For more information about fostering a child, see our “Fostering” tab above.

The DCP encourages adoptive families to arrange an “open adoption”. An “open adoption” is where any remaining biological parents of an adoptive child are kept informed about the child’s welfare and development and (with the permission of all adoptive parents) they may remain in contact with the child throughout their life. This allows a child to remain connected with any cultural or personal history that they may have. The view is taken that an “open adoption” is preferable, where possible and appropriate.

An adopted child is treated by the law as a biological child once an adoption order is made. To this end, adoption of a child may void a child maintenance order from the Family Court, and/or your right to seek child support payments. Conversely, if you adopt a child you may then be entitled to seek child support or a child maintenance order yourself.

Further, an adopted child can be the subject of Family Court proceedings should their adoptive parents separate.

If you would like any assistance in adopting a child, you may wish to consider seeking legal advice. This is particularly with respect to overseas adoptions. Additionally, you may want to consider seeking immigration advice.

Useful Links

• The Department of Child Protective Services have a wealth of information available at their website. You can visit the DCP’s adoption fact page by clicking here, or calling DCP on 1800 182 178.

• The Family Court of Western Australia has a wealth of information about how to apply for an adoption order to finalise the adoption of a child, as well as providing all forms, instructions and kits available for applying for an adoption order. To access this information, visit the Family Court of Western Australia’s adoption page here and/or download a copy of their Adoption Kit here.

• Legal Aid WA also have an information fact sheet where you can find out more about adoption and the resources available to prospective parents to complete such an application. You can visit their adoption fact page by clicking here or calling Legal Aid WA on (08) 9261 6222.

• If you are pregnant, are considering adoption for your child and want to find out more, visit the DCP’s adoption considerations fact page here. You may also wish to call the DCP on 1800 182 178.

• For Western Australian adoption support and counselling services, visit the Adopt Change website by clicking here.

The law regarding surrogacy in Western Australia is governed by the Surrogacy Act 2008 (WA). Surrogacy arrangements in Western Australia for children born after 1 March 2009 must comply with the Act.

Surrogacy involves a woman carrying a baby for a prospective parent or parents. Surrogacy is normally performed when an individual or couple cannot ordinarily conceive a child themselves.

There are two different types of surrogacy in Western Australia:

1. “Traditional Surrogacy” – where the sperm of the prospective father, or a donor, is used with the egg of the birth mother to create a child. Western Australia is the only state which practises Traditional Surrogacy;
2. “Gestational Surrogacy” – where the sperm of the prospective father, or a donor, is used with the egg of the prospective mother, or donor, to create a child. The child will have no biological connection with the birth mother.

There are two important questions to consider with surrogacy. First, is the arrangement in question legal? Second, even if it is, who are the legal parents of the resulting child?

For a surrogacy arrangement to be legal in Western Australia it must meet very strict requirements. Generally, they are as follows:

1. That the prospective parents have entered into a written surrogacy arrangement approved by the Reproductive Technology Council of Western Australia. The arrangement must state that the birth mother (or parents) agrees to carry the child for another person or persons (the prospective parents) with the intention that the child is raised by those prospective parents from its birth;
2. That both of the prospective parents are residents of Western Australia;
3. At least one of the prospective parents is over the age of 25;
4. That the prospective parent(s) is an “eligible person”; and
5. That the surrogacy is being performed in Western Australia for no commercial gain, payment or reward. Payment of reasonable medical and professional fees is acceptable.

To be an “eligible person”, and therefore qualify to be a prospective parent for a surrogate child, you must be:

• In a heterosexual relationship; or
• A woman who can’t conceive naturally on her own; and
• Be unable to conceive for medical reasons, or you are the carrier of a hereditary genetic disorder.

The surrogate birth mother must also meet particular requirements:

1. She must be over the age of 25;
2. She must already have given birth to a live child before (there are some exceptions); and
3. She must not be pregnant at the time the surrogacy agreement is approved.

A surrogate mother will generally conceive via IVF and be part of ongoing comprehensive health assessments before and during pregnancy.

To become the legal parents of the child, the commissioning couple must obtain a parentage order from the Family Court of Western Australia upon the child’s birth. The parentage order ensures that parental rights for the child are transferred from the child’s legal parent(s) to their prospective arranged parents.

The written surrogacy agreement will remain in place until a parentage order is made after the birth of the child. It is important to note that surrogacy plans are not binding, except for agreed payment of medical costs. Additionally, if the birth parent(s) retract on their offer to transfer the parenting rights of the child to the prospective parents, the same remedies for breaches of a contract would not apply. In those cases, commissioning parents can bring an initiating application in the Family Court to have the court decide what parenting orders would be in the child’s best interests.

Once a surrogacy arrangement is approved by the Council, plans will need to be made about the parentage of the child. The prospective parents and birth mother must bring their application for transfer of parentage in the Family Court of Western Australia between 28 days and 6 months after the child is born.

Alternatively, a surrogacy agreement can prescribe time or contact between the child and their birth mother. Naturally, the birth mother will have developed very strong feelings for the child and may regard them, in some way, as their own child. But ultimately, any such contact must be in the best interests of the child.

A parentage order must meet the following criteria to be considered by the Court:

1. That the surrogacy is legal with respect to the Act and that there is an approved and legal surrogacy plan;
2. That all parties to the matter have received counselling about the effect of the parenting orders;
3. The application is made with the birth parent(s) consent;
4. That the child is in the arranged, prospective parent(s)’s care; and
5. That it is in the best interests of the child for the parentage order to be made.’

Once a parentage order is made, the effect of the order is that the birth parent(s) no longer have any legal rights over the child and it is as if the child had been born to their prospective parent(s) all along.

Some people decide to travel overseas to arrange a surrogate birth mother for their child. In that case, some fundamental requirements of a surrogacy arrangement drafted overseas may be wrong or grossly incorrect. If the surrogacy and parenting orders do not comply, then there may be an issue with the child’s parentage.

Surrogacy can be a complex issue. You should consider whether you ought to receive legal advice before proceeding with your matter.

Useful Links

• The surrogacy governing body, the Reproductive Technology Council of Western Australia has a broad range of information and guidelines for prospective parents to consider. Any person intending to become involved with surrogacy should familiarise themselves with the Council and its processes. You can visit the Council’s website at www.rtc.org.au.

• The Family Court of Western Australia has a wealth of information about how to apply for parentage orders to finalise surrogacy of a child, as well as providing all forms, instructions and kits available for applying for a parentage order. To access this information and example approved Surrogacy Plan templates, visit the Family Court of Western Australia’s surrogacy page here and/or download a copy of their Surrogacy Kit here.

• Legal Aid WA also have an information fact sheet where you can find out more about surrogacy and the resources available to prospective parents to complete such an application. You can visit their surrogacy fact page by clicking here or calling Legal Aid WA on (08) 9261 6222.

Fostering occurs when a child is placed in the physical care of someone other than their parents, normally because a parent or parents is unable to care for their child. The time that a child stays in foster care varies considerably from child to child, and depends largely on the age and needs of each child.

Foster carers reflect a broad range of society. The placement of a child with a particular foster family/parent will depend on the health, lifestyle and maturity of the potential foster parent. Importantly, foster care is intended to provide a safe, supportive home for a child who could have particular mental, emotional, behavioural or physical needs.

The Department of Child Protection (“DCP”) facilitates foster care arrangements in Western Australia. All carers are supported through assessment and training, and are safety checked before taking on care of a child.

The most common form of foster care is a child being placed into the care of a relative. The view is taken that, if a child cannot live with their parents, then it is in their best interests to be placed into the care of a family member if possible. Fostering at a family member’s home allows the child to continue familiar relationships and surroundings (particularly important for young foster children), maintaining a personal and cultural identity, keeping the parents of the child involved in the child’s care and keeping siblings who are all removed at once together.

As a result, this type of foster care normally involves an aspect of communication between the child and their biological parents.

However, as there may not always be a relative able or willing to provide care, non-relatives can also foster a child not previously known to them. Foster parents may also be fostering a child with the intention of adopting that child as one of their own.

To contact the DCP about becoming a foster carer, or to find out more, visit their website by clicking here or calling them on (08) 9325 1232.

You can also contact the Foster Care Association of WA (Inc), by visiting their website at www.fcawa.com.au or calling them on (08) 9242 4222.

Finally, you can find further information and support for foster carers at Key Assets. You can visit their website at www.keyassets.com.au or call them on (08) 9207 5900.