If you have a child and your relationship with the other parent has broken down, you will need to make important decisions about your family.
These decisions include where the child or children will primarily live, how much time they will spend with the other parent, and who will be responsible for making long-term decisions for the children. We refer to this area of law as child and parenting matters.
Sometimes the parents can reach an agreement on their own and do not require court intervention. In these situations, it is necessary to put arrangements in writing to formalise it. It is important to obtain legal advice so that your rights, and those of your children are protected.
Often, it is not possible for parents to come to an agreement. When this occurs, a court will need to make the decisions for the parents based on the best interests of the children.
Having issues with the other parent can create a stressful and emotional environment. We will handle your case in a caring and empathetic manner whilst obtaining the best possible result for you and your family.
Our expert family lawyers can assist in:
- Negotiating a parenting arrangement
- Representing clients at a hearing
- Preparing Child Support Agreements
- Matters of domestic violence
If you can reach an agreement with the other parent about the arrangements for your children, this can be documented by a Parenting Plan. The Parenting Plan may contain things like where the children are to live, when they will spend time with each parent, which school the child is to attend and arrangements for birthdays, Christmas and school holiday.
The advantage of a Parenting Plan is that you do not need to go to court, it simply needs to be in writing and signed by each party. However, Parenting Plans are not legally binding.
It is a requirement that a separating couple wanting to apply for a parenting order need to indicate that a genuine effort to resolve the dispute by mediation has been attempted. To show that a genuine attempt has been made, the couple must obtain a section 60I certificate. You can read more about the mediation process here.
If you cannot reach an agreement at mediation and have obtained a section 60I certificate, you may make a Court Application for a parenting order. Parenting orders are a more formal way of making arrangements that are made either with the consent of the parties to the relationship or as the result of a contested hearing.
Where a resolution is possible we can prepare consent orders for you, which are then put before the Court and sealed, at which point they become parenting orders. Where a negotiated resolution is not possible, the Court decides what the orders contain. The Court considers the children’s best interest as paramount and will protect the children from any harm. However, the Court must attempt to facilitate the child having a meaningful relationship with both parents.
Child support payment can occur in two ways:
- Private Agreement – if you reach an agreement with your child’s other parent, this should be documented by a Child Support Agreement. This agreement must be in writing and signed by both parties.
- Application to the Child Support Agency – you must complete this process directly. If you are not happy with the outcome of the assessment, we can offer you advice and assistance in the review process.
Our child support lawyers can assist in drafting a Child Support Agreement, ensuring that both parties understand their rights and responsibilities.
Child and Parenting Matters FAQs
No, parents can agree on any living arrangements they want for their children. You do not have to feel pressured by your ex into agreeing to an equal time arrangement if you do not feel it is best for your children. It generally takes the ability of both parents to talk openly and constructively for an equal time arrangement to work.
If you cannot agree on parenting arrangements, you can start a Court application to ask the Family Court to decide. The Court will make Orders which the Judge considers to be in the children’s best interests. The Court may decide that it is in the best interests of the children to spend equal time with each parent or make different orders. This all depends on the circumstances of your case.
The term ‘custody’ is no longer used by the Federal Circuit and Family Court of Australia (FCFCOA). You will hear us talk about who your children will live with, who they will spend time with and who makes decisions about their day to day issues and long-term future (parental responsibility).
When your relationship breaks down, important decisions need to be made about how these arrangements are going to work for your children. Our expert family lawyers can provide you with advice and help you with these arrangements, whether it’s by negotiating with your ex, attending mediation or starting a Court matter if you can’t reach an agreement.
If you cannot reach an agreement and start a Court application, the FCFCOA will make this decision for you. The Court will make Orders (a legally binding document) about who your children will live with and “spend time with” and who will have “parental responsibility” for children. The Court takes into account many factors when making these Orders but ultimately must give paramount consideration to what is in the children’s best interests.
Parental responsibility is about who makes decisions for your children. These may be day to day or much bigger issues, such as what religion will they practice, what school will they attend, and if necessary, what health care will they require. It even encompasses decisions about what sports your children will play.
Most often, the Court will make an Order that parents share this equally, even if children are living mainly with one parent. You should therefore consult and discuss decisions affecting your children with your ex before any kind of decision is made that impacts your children’s future. We understand that this isn’t always easy.
In some cases, only one parent will be given parental responsibility. This will depend on the circumstances of the individual case.
If a child does not want to spend time with the other parent, this may understandably be worrying and stressful for you as a parent.
The Family Law Act states that a child has the right to know and have a meaningful relationship with both their parents. This principle can however be limited so that it does not compromise the child’s best interests.
Your children’s views on who they would like to spend time with are one of many things the Court considers when making a parenting Order. The weight the Judge places on the children’s views is influenced by their age, level of maturity and whether anyone is influencing their opinion.
The Court may decide that it is not appropriate for the child to see the other parent or limit the contact the child has with the other parent if it will put the child at risk of harm, violence or abuse.
It is always important to seek advice before you make any arrangements based on the views of your children. Our experienced family lawyers can advise you on what would be reasonable and appropriate in your circumstances and what your options are in your situation.
The Family Law Act focuses on the rights of children, not of parents. The object of the Act is to:
- Enable children to have meaningful relationships with both their parents, to the extent that this does not compromise children’s best interests.
- Protect children from physical and psychological harm, neglect, and violence.
- Ensure children receive proper and adequate parenting.
- Ensure parents fulfil their duties and responsibilities.
As a parent, unless there are issues of abuse or violence, you can reasonably expect to:
- Have ongoing involvement in your children’s lives.
- See your children regularly, including on weekdays, weekends and school holidays and on special days such as their birthday.
- Be involved in ongoing decision making about your children.
After separation, most grandparents see their children with the agreement of the children’s parents. You may find that you now see your grandchildren when they see your son/daughter or that you are still on good terms with your former daughter in law/son in law and make arrangements with them directly.
If that is not possible, grandparents can apply to the FCFCOA for an order for their grandchildren to spend time with them. The Court recognises that grandparents and other family members are significant to the care, welfare and development of children.
If you are having difficulty seeing your grandchildren, contact our family lawyers for advice.
Child Support FAQs
Both parents of a child can be liable to pay Child Support. This can include biological parents or adoptive parents of a child. The amount that will need to be paid can be calculated based upon the percentage of care that a parent has for a child.
Yes. There are various options for documenting your Child Support agreement. A Child Support Assessment can be completed by approaching the Department of Human Services to undertake the assessment. Once the assessment is completed, they will inform both parents of the outcome.
If you do not wish to pay Child Support pursuant to a Child Support Assessment, a Child Support Agreement can be entered into. There are 2 types of Child Support Agreement – Binding and Limited. This is a complex area of law and you should seek legal advice in this area.
If you wish to discuss the various options and what may be suitable for your individual circumstances, contact our office and arrange an appointment as soon as possible.
If a party has applied for a Child Support Assessment from the Department of Human Services, the Department calculates the Child Support payable. It is based on a formula which includes: working out each parent’s income; working out the parent’s combined income; determining each parent’s income percentage; determining each parent’s percentage of care; working out each parent’s cost percentage; considering each parent’s child support percentage; and determining the costs of the child. After considering these factors, the Department of Human Services will determine the Child Support Assessment and the amount that will be payable.
This is a complex area of law and if you have any concerns or queries, it is important to contact an experienced team who can assist you. We are available to assist.
You can contact the Department of Human Services and make an application for a Child Support Assessment to be completed.
If you wish to make a private agreement with your ex, it is suggested you contact our family law team to discuss what this mean for you and whether this is suitable for your circumstances.
There are various options available to a party if they are not satisfied with their outcome of a Child Support Assessment. These options include an internal review process via the Department of Human Services, an application to the Social Security Appeals Tribunal for a review of the Department of Human Services original decision and in some limited circumstances, an Application to the Court.
It is important that you receive accurate legal advice to understand the options that are available to you and what option may be the best for your circumstances. Our office is ready, willing and able to assist you with this process.
If there is a genuine dispute as to whether a party is the parent of a child and has been assessed to pay Child Support, an application can be made to the Court to apply for a declaration that a person is not the parent of a child and as a result, should not be eligible to pay Child Support.
If you are in this situation or anticipate that this may be circumstances that you may be facing, we suggest that you contact our experienced legal team to discuss.