Children and Parenting Matters

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 Family Court. 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 major and long-term issues (ie. 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 negotiation with your ex, attending mediation or commencing proceedings in Court if you can’t reach an agreement.

If you cannot reach an agreement and commence Court proceedings, the Family Court will make this decision for you. The Court will make Orders about who your children will live with and ‘spend time with’, and who will have ‘parental responsibility’ for the 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 they attend, and, if necessary, what health care and medical treatment they’ll receive. It even encompasses decisions about what sports your children will play.

Most often, the Court will make an Order that parents share parental responsibility 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 stated 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 appropriate legal advice before you make any arrangements based on the views of your children.

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The Family Law Act focuses on the rights of children. Rather, parents have responsibilities under the Act, not rights. 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 the 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, 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 if you are still on good terms with your former daughter-in-law/son-in-law you can make arrangements with them directly.

If that is not possible, grandparents can apply to the Family Court for an order for their grandchildren to spend time with them. The Family Court recognises that grandparents and other family members are significant to the care, welfare and development of children.

If you are having difficulties seeing your grandchildren, contact our family lawyers for advice.

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 on 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 as per 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 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 parents’ combined income, 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.

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 means 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, 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 who has been assessed as liable to pay Child Support is the parent of a child, 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.

As always, it is important to seek professional legal advice if you find yourself in this situation.