Before filing any application for parenting orders in the Family Court or Federal Circuit Court of Australia, parents must try to resolve their dispute by less adversarial means. In order to make an application for parenting orders, parents must supply the Court with a certificate from a Family Dispute Resolution Practitioner which indicates that they have attempted to resolve their dispute outside of Court.
A Family Dispute Resolution Practitioner is a qualified professional trained 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.
The Family Law Act (1975) governs all parenting arrangements regarding children. The objective of the 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:
Unless there is a Court order or a parenting plan that states otherwise, 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:
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.
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 lawyer.
The Court will consider the competing proposals of each parent and ultimately decide 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:
The Family Court and Federal Circuit Court of Australia have processes 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:
Both parents are primarily responsible for maintaining their children.
Child support is generally payable in accordance with a formula contained in the Child Support (Assessment) Act 1989. Different formulae apply depending on the circumstances of the parents. Either parent 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.
A variation from a child support assessment can also be made either by the Family Court or the Federal Circuit Court if there are proceedings pending in these Courts.
The Court can also make orders regarding child support if:
Parents can enter into different types of child support agreements. These can be long term or short term agreements. There are two specific types of child support agreements:
Child support 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.
If a parent receives a Social Security payment, special rules may apply.
How is Child Support Calculated?
Child Support is usually calculated using formula set out in the Child Support (Assessment) Act 1989. These formulas depend on differing circumstances, such as how many children there are and whether a non-parent carer is involved.
The basic formula takes into account a number of factors including:
Do I need to go through the Child Support Agency?
Please contact us if you would like to discuss child support generally, or would like advice in respect of you entering into a Child Support Agreement.