Parenting and Separation

Do I have rights to see my child?

The Family Law Act 1975 (Cth) provides that a child has a right to enjoy a meaningful relationship with both their parents, and they are to be protected from harm. A Court is required to consider and give greater weight to the need to protect children from harm against the parents having a meaningful relationship with the child.

What does the “Best Interests of the Child” mean?

The Court takes into consideration the paramount principle of what is in the child’s best interests when making decisions about the child/ren. Most parents can be amicable and agree on their own parenting arrangements for the care of their child/ren. However, if parents cannot agree on parenting arrangements after separation, a Family Dispute Resolution Practitioner (“FDRP”) at mediation can assist parents in reaching a child focused outcome.

Furthermore, if parents cannot agree on parenting arrangements at mediation with a FDRP, then a Court can make a decision and it will be based on considering all factors set out in section 60CC of the Family Law Act 1975 (Cth).

What does equal shared parental responsibility mean? Does this mean equal time?

In family law, parental responsibility refers to all the duties, powers, responsibilities and authority that parents have in relation to their child/ren. Parents have parental responsibility of a child under 18 years of age, and that parental responsibility is not affected by a child’s parent remarrying or entering into a de facto relationship.

Equal shared parental responsibility is a presumption that it is in the child/ren’s best interests for their parents to have equal shared parental responsibility. However, this presumption can be rebutted in the event of family violence. This means, that where a decision is to be made about the child/ren’s major long-term issues in relation to the child/ren, the parents must make a genuine effort to consult each other about the care, welfare and development of a child/ren.

Major long-term issues may be decided jointly between parents including but not limited to:

(a) Future education
(b) Religious and cultural upbringing
(c) Health
(d) Relocation
(e) Name of the child/ren.

If a child spends time with the other parent then on those occasions parents generally do not need to consult each other on day-to-day minor decisions relating to the child/ren.

When can equal shared parental responsibility be inappropriate?

A Court may consider making an Order for sole parental responsibility whereby equal shared parental responsibility is not in the child/ren’s best interests. For example, if there is a risk to the child/ren of experiencing child abuse, neglect or family violence.

Is 50-50 or “shared custody” the norm?

There are no rules that children must spend equal time with each parent. In most parenting matters, parents can reach a child focused parenting agreement with taking into consideration what is in the best interests of the child/ren and thereby find a appropriate parenting arrangement whether that be a live with / spend significant or substantial time or a shared care parenting arrangement.

In any event, parents can reach their own agreement in relation to where a child will live, and how they will spend time with each of their parents. At times parents can have an ongoing relationship with each other, whereby making future arrangements for their children does not need Court intervention, and they can enter into a parenting plan or consent orders, that can be approved by the Court.

A parenting plan is not enforceable but parenting orders can be enforced by the Court and police.

Child support – how does it work?

Both parents have a responsibility to support their child/ren financially regardless of who the child lives with. However, either parent can obtain a child support assessment by the Department of Human Services, which will provide who pays child support based on the parents earning capacity and the current parenting arrangements.

What is a limited child support agreement

Limited Child Support Agreement pursuant to section 80E of the Child Support (Assessment) Act 1989 allow for parents to enter into such an Agreement only if there is a child support assessment in place. The periodic child support payments must be equal to, or more than the annual rate in the child support assessment.

A limited child support agreement must be in writing, it is signed by both parents to the agreement, it complies with the Child Support (Assessment) Act and it has been accepted by the Child Support Registrar. A limited child support agreement cannot be varied, but it can be terminated and be replaced with a new limited child support agreement.

A limited child support agreement does provide parents with flexibility if circumstances change, for instance it can only operate for a period up of to three years.

You are not required to obtain legal advice before making a limited child support agreement, but we recommend that you do so, so that you can be aware and understand what you are signing.

Parents can decide whether they seek a private collection or for the department to collect the periodic child support payments on their behalf.

What is a Binding Child Support Agreement?

Binding child support agreement pursuant to section 80C of the Child Support (Assessment) Act 1989 allow for parents to enter into such an Agreement provided that they can agree on an amount for periodic child support payments. The periodic child support payments can be more or less than the amount that would be payable under a child support assessment.

Parents must have at least 35% care of a child to receive periodic child support payments under a binding child support agreement.

A binding child support agreement must comply with the section 80C(2) of the Child Support (Assessment) Act including but not limited to:

(a) Agreement must be in writing
(b) Agreement is signed by the parties to the agreement
(c) Agreement contained in relation to each parent, a statement to the effect the party to whom the statement relates has been provided, before the agreement was signed by the mother or the father, as certified in an annexure to the agreement, with independent legal advice from a lawyer as to the following:

(i) The effect of the agreement on the rights of the parents
(ii) The advantages and disadvantages, at the time that advice was provided to the parents making the agreement; and
(iii) The annexure to the agreement contained a certificate signed by the lawyer providing the independent legal advice stating that the advice was provided
(iv) The agreement has not been terminated under section 80D
(v) After the agreement is signed, either the original agreement or a copy of the agreement is given to each parent.

You must seek independent legal advice and each parent must obtain legal certificates, if this cannot occur the binding child support agreement will not be valid. A binding child support agreement cannot be varied, it must be terminated and a new agreement can be entered into by the parents.

Parents can decide whether they seek a private collection or for the department to collect the periodic child support payments on their behalf.

What is “Child Maintenance?”

Section 66L of the Family Law Act 1975 (Cth) provides the Court to make an order for either one or both the parents to provide financial support to a child over the age of 18 years of age (adult child maintenance) if necessary:

(a) To enable the child to complete their education; or
(b) Because of a mental or physical disability of the child.

The Court considers a number of factors when making an Order for child maintenance in relation to education:

(a) The income, earning capacity, property and financial resources of the parents
(b) The amount of the parents needs to support themselves or other children the parent has a duty to maintain
(c) The capacity of the adult child to earn an income
(d) Whether the court to be pursued by the child is going to help the child earn an income
(e) The likelihood that the adult child will finish their education course
(f) The hardship that would result to the child if they have to abandon the court
(g) Nature of the parent-child relationship.

A parent can still be eligible for adult chid maintenance even if the disability arose after the child’s 18th birthday.