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Parenting Arrangements & Child Support

 

Family Dispute Resolution

Before filing any application for parenting orders in the Family Law Courts, parents must try to resolve their dispute by less adversarial means. Parents must supply a certificate from a Family Dispute Resolution Practitioner before going to Court. A Family Dispute Resolution Practitioner is a professional recognised as being qualified in family dispute resolution processes such as counselling and mediation. It is only in exceptional circumstances that the Court will not require such a Certificate.

Parenting Arrangements for Children

The Family Law Act (1975) governs all parenting arrangements regarding children. The object of that Act is to ensure that children receive help to achieve their full potential and that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.

To promote these objectives it is generally accepted that:

children have a right to know and be cared for by both parents
children have a right to spend time and communicate on a regular basis with both parents and other people significant to them;
parents should share duties and responsibilities in relation to their children; and
parents should consult and agree about the future parenting of their children.

Unless there is a Court order or a parenting plan that states otherwise, both parents have equal shared parental responsibility regarding their children. This means that both parents are responsible for consulting with each other and making joint decisions regarding all major long term issues that affect their children, such as education, health and religion.

Orders that may be made by agreement between the parties or by Court order may cover such matters as:

who the children are to spend time with, for how long and how frequently;
that one parent is to be responsible for the day to day decisions about the welfare of the children;
that one parent is to be responsible for decisions about the long term care, welfare and development of the children;
specific issues such as: where the children are to go to school; whether parents need to consult each other before taking the children to a medical practitioner; whether the children’s names can be changed; and whether the children can travel.

Care arrangements agreed to by parents tend to minimise the chances of disruption for children. We encourage you to find solutions to some or all of these issues by attending counselling and/or mediation, regardless of the Court’s requirements. It is part of our role to assist you where we can in achieving this objective, without going to Court. If you reach an agreement we can help you formalise that agreement so that it is enforceable.

Relocation of Children

When parties divorce or separate there are numerous consequences, not only for the parties themselves, but also for their children.

An issue often arising on separation is the question of one party wanting to move with the children to another city, state or country. This issue can be a very emotional and daunting. When the question of relocation is raised, you should obtain legal advice from a specialist family law practitioner.

The Court will consider the competing proposals of each parent and ultimately whether the children should relocate based on whether or not it is in the children’s best interests to do so. Some factors the Court will consider include:

any wishes expressed by the children and their maturity, sex and background;
the nature of the relationship of the children with each party and with other significant people, such as grandparents;
the likely effect of any changes in the children’s circumstances;
the practical difficulty and expense of the children having contact with the non-relocating party;
the need to protect the children from physical or psychological harm caused, or that may be caused, by abuse, ill-treatment, violence or other behaviour; and
whether making an order for relocation would be least likely to lead to further Court proceedings

Enforcement and Contravention of Parenting Orders

The Family Law Courts have a process for establishing and enforcing parenting orders. However, enforcement of those orders is discretionary and the discretion will be exercised with the best interests of the child as a starting point.

If a party breaches a parenting order, the other party can file a contravention application in the Court. The Court can then make orders, including for:

punishment of the contravening party, for example by fines;
consensual resolution through mediation, negotiation or counselling;
make up time with the child/children; and
variation of the original order.

Child Support

Both parents are primarily responsible for maintaining their children.

 

The Child Support Agency

Child support is generally payable in accordance with a formulae contained in the Child Support (Assessment) Act 1989. Different formulae apply depending on the circumstances of the parents. Either parent or the child can ask the Child Support Agency to make an assessment of the amount payable and the assessment is enforceable.

If a party wants to vary a child support assessment, they must usually apply to a child support review officer of the Child Support Agency. There are limited circumstances in which a child support assessment will be varied.

The Family Law Courts

A variation from a child support assessment can also be made by a Family Law Court if there are proceedings pending in the Court.

The Court can also make orders regarding child support if:

the parents separated before 1 October 1989;
the child is over 18 years of age; or
the prospective payer lives overseas and is not covered by the child support legislation.

Child Support Agreements

In the alternative to applying for a child support assessment from the Child Support Agency, parents can enter into different types of child support agreements. These can be either long term or short term agreements. In general, both types set out the level of financial support to be provided by one parent to the other for the children and how that support is to be paid. For example, agreements can provide for an amount of child support to be paid periodically and/or set out how expenses such as school fees are to be paid. Child support agreements can be registered with the Child Support Agency, making the consent arrangement enforceable.

Parents who entered into child support agreements before 1 July 2008 will need to transfer those agreements to the new child support scheme.

If a parent receives a Social Security payment, special rules may apply.

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