Child Related Matters
It is common in Australia for families to have two working parents, with both parents looking after their children. When you are separating from your partner, the children’s needs ought to be a priority for both of you. Speaking to your partner and your children as well as seeking professional guidance can assist you in making an informed and reasoned decision as to what is in the best interests of your children.
Issues relating to a child or children are regulated under the Family Law Act. The Family Court, the Federal Circuit Court or the Local Court are the appointed forums for dealing with issues of child custody laws, living arrangements and ongoing financial support of children. The Child Support (Assessment) Act primarily deals with child support and the financial delegation between parents. In some instances, either one or both parents may not reach the threshold for child support because of their financial position. In these circumstances, welfare can be sought.
Under the Family Law Act, each parent has joint parental responsibility for their children. However, sometimes a parent’s behaviour is so irresponsible that they are not regarded as being able to actively maintain a role in their children’s lives. Courts have the jurisdiction under the Family Law Act to make orders about children, protect the child from harm, whether psychological or physical. Alternative orders can also be made, for example, that the parent be entitled to supervised visitations with their children for a prescribed period of time.
Interim and Final Orders
The Court has power to make orders to govern the relationship and affairs of the parties in the transitional period up to the final hearing. An Interim Application is conducted as a hearing.
Generally, the hearing of interim application is ‘on the papers’ (i.e. by way of exchanging the parties written evidence and submissions and if necessary accompanied by short oral submissions). An Interim Application is heard prior to the procedural hearing in order to minimise time, costs and the items and dispute between the parties so that witnesses are not called into cross-examination
Following the conclusion of the hearing an Interim Application, a Judge will likely reserve their decisions to consider the witnesses before heading down his or her orders and written submission.
As a result, there are a number of matters in the list before the Judge. At times, your matter may not be heard on the day and you will have to return to Court. The reason for cases not being heard on the first date for an interim hearing is that the Judge may be of the view that parties should first attend counselling, arrange for a children’s representative (if required), ascertain whether further evidence is necessary and whether subpoenas ought to be filed and served.
A Parenting Plan is made by the court and can be based on a decision made by you and your former partner. It deals with parental responsibility and decision making, with whom the children will live and allocate an agreed amount of time with which the children will be able to communicate or spend with the other parent.
An application for parenting orders must be filed and submitted to either the Family Court or the Federal Circuit Court. Parents are not the only people who can apply for a parenting order, so can the child, grandparent or any other person concerned with the welfare of the child.
A Consent Order is preferable because Parenting Plans are not legally enforceable and can easily be breached with little to no consequences.
A Consent Order is an Order made by the Court where both parties come to an agreement and want to make that decision legally binding. These Orders can be obtained as a result of filing an Application for Consent Orders without disputed proceedings or during any stage of proceedings.
You can lodge an Application for Consent Orders without the need to attend Court. The Application for Consent Orders simply needs to be filed with the Court Registry. After the Court has reviewed your Application and is satisfied that the Orders are fair and reasonable, it will proceed to making those Orders.
Equal shared responsibility
More often than not, parents seek shared custody of the children such that they spend the same amount of time with each parent, for example, one week with one parent and one week with the other. This arrangement may be a practical outcome for the parents and less stressful for the children. Of course, such a regime may not be suitable or practical when, for example, one parent woks longer hours than another parent.
When making parenting arrangements, it is important to keep the following points in mind:
- Is there continuing conflict between you and your former partner?
- Can you cooperate and communicate with your former partner?
- Will you live close to your former partner? Or will the children have to travel?
Section 61D of the Family Law Act sets out the major decisions that ought to be made when dealing with children. All aspects of the child’s life need to be considered such as what school the children should attend and what medical treatment the children ought to receive. In the absence of parenting orders, the parties are deemed to have equal shared parental responsibility and this gives rise to a duty between the parents to consult one another on a regular basis regarding such issues.
In some situations, there is no perfect parenting arrangement, therefore ongoing communication is paramount to ensuring that the arrangement is harmonious and beneficial to all parties included.
Parenting orders that provide equal shared parental responsibility are made when the parties and/or the court decides that such a regime is in the best interest of the children. It needs to be reasonably practicable in the circumstances, thus the Court must have regard to substantial and significant time (4-6 nights per fortnight) and whether this is beneficial for the parties.
If an order for substantial and significant time is not made, then the Court must look to other arrangements in order ensure that it is in the best interest and reasonably practical for the children see s 65DAA of the Family Law Act.
Age-appropriate parenting arrangements
A relevant factor when determining how much time should be split between parents is the age of the children. For example, research into attachment theory provides that the bond between newborn babies and their mother is necessary for the development of the baby. Accordingly, parenting orders for equal time in these circumstances would not be appropriate.
Depending on the age of the child, it is suggested that the following time is spent with the child:
- Newborn babies: have a primary carer (generally the mother), the baby must spend frequent short periods of time with the other parent in order to foster the bond.
- At about two years of age: children in this bracket are tolerable to up to one to two nights per week away from the primary carer, but not in succession.
- At about five years of age (School age): can increase up to equal time, ranging from 3-to 4 nights per week on or off with parents.
- At about ten years of age: time apart increases to approximately week on and off arrangements.
Relocation of children
If your circumstances require you to relocate with your child, an application to the Court may be made in order to permit you to do so. An application for an order can be made before or after you intend to relocate from your former partner. This also applies in circumstances where your former partner has relocated with your child without your knowledge or intends to do so.
When applying to the court it is important to clearly state the reasons for the relocation and why it is in the best interest of the child. There need to be arrangements in the application that propose how the child will spend time with the other parent being left behind. Ultimately, the Court decides what is in the best interest of the child.
When making an application for relocation, the following issues ought to be taken into consideration:
- Why the relocation is more suitable for the child than the current arrangements in place;
- Proposed schooling and housing arrangements;
- Evidence of an intention to facilitate a meaningful relationship between both parents;
- The distance of the separation, what means of transport the child has to see the other parent and the cost of such travel;
- Forms of communication and technological applications i.e. how often will the children speak with the other parent? Do they have access to Skype, mobile phone etc.?
Pre-action procedures for parenting cases
Pursuant to s 60I of the Family Law Act, prior to commencing proceedings involving parenting issues you will be required to attend a compulsory dispute resolution/mediation to attempt to resolve the dispute. However, there are some exceptions to taking this step such as evidence of family violence, child abuse and urgency.
To be eligible for an exception, an affidavit together with the initiating application must be filed. The affidavit ought to outline the reasons why dispute resolution/mediation was not undertaken prior to lodging the initiating application. In determining whether or not an exception will be granted, Registrar of the Court takes into consideration the factual reasons that have been advanced in the affidavit.
If the mediation is unsuccessful or a party refuses to attend, a mediator will issue a certificate pursuant to s 60I of the Family Law Act. The certificate is to be filed with an application for a parenting order. If an agreement is reached at mediation, a parenting plan can be entered into pursuant to s 63C of the Family Law Act or the parties may apply for Consent Orders. However, if an agreement is not reached at mediation, parties should provide written notice of their intention to file a Court application to one another.
If there is potential for an arrangement to be reached through further negotiations, such attempts ought to be made. Alternatively, if the parties cannot reach an agreement through further negotiations, the parties ought to seek the assistance of the Court.
Disclosure and exchange of correspondence
In parenting matters, a duty of disclosure exists and requires that the parties exchange documents in their possession and control. This includes medical reports, letters and all other relevant information.
Child support refers to payment made directly or indirectly by an obligor to an obligee. The primary carer under the Child Support (Assessment) Act, can make a claim for child support from the other parent. The Child Support Agency is responsible for making determinations by taking into consideration the parents’ child support arrangements and assessing the proposed amount to be paid to support the children. The decision is dependent upon each parent’s income, living arrangements and the number of children under the household.
The different categories of child support
There are three different categories of child support payments:
- Periodic payment: on-going and regular amounts on a cyclical basis;
- Non-periodic payment: where the court orders that a party pays for items such as school fees to third parties, it must also clearly specify whether such payments will reduce the annual rate of child support payable pursuant to s. 125 of the Family Law Act; and
- Lump sum payment: The Court must specify, pursuant to s. 69A of the Family Law Act, whether a party is to receive a lump sum payment. In that event, the payment made to the receiving party will include a “credit balance” which will be used to pay the ongoing liabilities i.e. a percentage of these liabilities is to be met by the lump sum payment.
Child support formula
The amount payable for child support is determined by the amount needed to cover the cost of caring for the child or children. As of 1 July 2008, the amount is dependent upon the adjusted income of both parents and the level of care provided by the parents. The following 7 steps ought to be observed when calculating how much should be payable:
- Determine how much each parent expends for the child per day: see s 41 of the Child Support Assessment Act.
- Determine the combined expense for child support for the child per day: see s 42 of the Child Support Assessment Act.
- Determine each parent’s income percentage for the child per day: see s 55B of the Child Support Assessment Act.
- Determine each parent’s percentage of care for the child for the child per day: see s 48 of the Child Support Assessment Act.
- Determine each parent’s cost percentage for the child per day: see s 55C of the Child Support Assessment Act.
- Determine each parent’s child support percentage for the child per day: see s 55D of the Child Support Assessment Act.
- Determine the costs of the child for the day: see s 55G and s 55H of the Child Support Assessment Act.
Two types of child support agreement
Binding child support agreements
Child support agreements are binding when they are in writing and signed by both parents. In order to enter into an agreement, both parents must obtain legal advice and a statement which declares that both parties have received independent legal advice as to the advantages and disadvantages of entering into the agreement before it was signed.
There must be an annexure included in each party’s copy of the agreement and signed by the legal representative who provided them with the independent advice certifying that the advice was provided.
The amount of child support payable can be for any amount as agreed between the parents. The binding agreement can only be terminated; there can be no variation to the agreement.
The grounds for terminating the agreement are limited, it is crucial that you think ahead as to any changes to your financial position, employment or changes in proposed care arrangements.
Limited child support agreements
Limited child support agreements do not require legal advice, however legal advice ought to be obtained prior to entering into any such agreement. There must be an administrative assessment when the agreement is entered into. Such an agreement must not provide for payment of periodic child support which is less than the assessment. Similar to a binding agreement, there cannot be any variation to the agreement, however it can be terminated by the existence of a new limited or binding agreement or a court order.
This agreement must be lodged with the Child Support Agency and accepted by the Agency for it to come into effect.
If a party seeks to obtain a notional assessment of child support, and such assessment has varied by more than 15% from the provision of periodic child support, the agreement can be unilaterally terminated.
How to object
A party may object to the Child Support Agency’s decision regarding child support following which the agency will conduct an internal review of the decision. An objection must be lodged with the Child Support Agency within 28 days from the date of which the original decision was granted (unless an extension is permitted). The Registrar must consider the objection and any responses made to such objection within 60 days after the objection is lodged. The Registrar has the capacity to either allow the objection in whole or in part, or disallow the objection in its entirety. The parties will receive a written notice of the Registrar’s decision.
Appeals against a decision from the Social Security Appeals Tribunal
Alternatively, once a Child Support Agency has made a decision, either party can appeal to the Administrative Appeals Tribunal (AAT). The parties may object to the original review of a decision within 28 days. After an application for review is received by the AAT, a Case Manager will be assigned to deal with the appeal. The application is copied and sent to the parents and the Child Support Agency, in which the agency has 28 days to provide the AAT, the applicant and the other parent a written explanation for the decision. Once the documents have been received, the AAT notifies the applicant and the other parent may, and schedules an appointment time for an AAT hearing.
An appeal with the AAT generally takes up to 10-12 weeks from the date in which the appeal was lodged. Once the review has been finalised, the AAT will provide a written explanation for the decision. If parties are not pleased with the decision of the AAT, it can be appealed to the Federal Court, but only in relation to a question of law, for example, because of misinterpreting statute or an alleged denial of procedural fairness.
If an administrative assessment of child support has been granted, there is the ability to vary or depart from the decision by applying for a Change of Assessment Application. General reasons for change are objection to the level of care, one or both parent’s income changes, terminating events occur and/or finally reaching a suitable agreement with the other parent (see: s 17 Family Law Act).