Children
Who Gets The Children?
It does not matter whether parents are married or in a de facto relationship. Their children are covered by the Family Law Act. The Family Law Act has undergone changes with respect to the terms used regarding children. Prior to 1996 the terms used were “guardianship, custody and access”. Following 1996 the terms used were “residence, contact and specific issues”. All of these terms have been replaced with the changes to the Family Law Act that commenced on 1 July 2006.
The Family Law Act now provides:
- A presumption that both parents have “shared parental responsibility”.
- The terms “residence” and “contact” have been replaced with the terms “who the child lives with” and “who the child spends time with and communicates with”.
- An initial obligation on the Court to consider making an Order that the child spend “equal time” with both parents, if that is in the child’s “best interests” and is “reasonably practicable”.
- “Best interests” is defined by “primary” and “additional” considerations. The “primary” consideration requires the Court to consider the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm.
- If the Court does not see an “equal time” Order as appropriate it must consider making an Order for a parent to have “substantial and significant time” if that is in the child’s best interests and is reasonably practicable.
- “Substantial and significant time” is defined as being weekends and holidays with the addition of some mid-week time.
Other changes introduced include:
- Parenting Plans: These Plans are not registered with the Court and are not enforceable. There are special provisions regarding Parenting Plans and anyone considering entering one should obtain Specialist legal advice.
- The Children’s Cases Program: The program represents a move away from the adversarial Court process towards a mediation process managed by a Judge.
- From 1 July 2007 compulsory mediation will commence. Any Application to the Court for a Parenting Order will only be able to be made if a certificate (of attendance) has been obtained from a Family Dispute Resolution Practitioner (mediator) unless there is family violence or another reason for exemption.
When the Court has to make a decision, the Judge does not interview the children. The Court can ask a child-welfare professional to help work out the wishes of the children.
A parent’s responsibilities are covered by three main principles. These are:
- Children have a right to know and be cared for by both of their parents.
- Children have a right to regular contact with both parents. This also applies to other people who are important to the children’s welfare and development, such as grandparents.
- Parents should share the duties and responsibilities for the care, welfare and development of their children.
These responsibilities end when children turn 18 years of if they marry before they turn 18.
In some cases, the Court may order that an Independent Children’s Lawyer are appointed. That person is a solicitor who will act on behalf of the children.
Any of the following people can apply to the Court for the care of the children:
- either or both of the children’s parents, step-parents, grandparents, guardians appointed by a Will; or
- any other person concerned with the care, welfare and development of the children.
Where the Court has made an Order regarding children’s welfare and the resident parent dies, the Order no longer exists. The other parent must re-apply to the Court for a new Order.
How Often Can I See My Children Who Do Not Live With Me?
What was previously called ‘contact’ is now called ‘spends time with’.
Court Orders can specify the frequency, length and type of time that a parent can spend with their children.
A parent’s time with the children is determined according to what is in the best interests of the children. Contact is the right of the children to maintain a relationship with their parents, rather than the parents’ right to see the children.
It is usually of benefit to the children to have as much time as possible with both parents, to be able to enjoy their company and to receive their guidance, love and affection.
It is very rare for the Court to deny a parent time with their children.
If you do not see your children for some time, it may be best for the re-commencement of contact to gradually increase over a period of time.
With the changes to the Family Law Act that commenced on 1 July 2006 most Orders for parents spending time with their children will provide more time than they historically have. The law promotes the involvement of both parents in their children’s lives as much as possible.
If you live close to your children it might be possible for you to spend time with them not only on weekends but also mid-week evenings and after school. If you live interstate, longer periods of holiday time might be more appropriate.
In working out your children’s arrangements the Court can take into account the children’s wishes, but this will not be the only thing that the Court considers. The emphasis the Court places on the children’s wishes will vary depending on the age of the children.
Contact Orders for children can change as circumstances change. As children grow older, their lifestyles change. It is best if arrangements for children stay flexible. Many parents are able to reach agreement and to alter arrangements by agreement if circumstances change. They can do this without having to go to Court.
The children’s welfare is always the most important issue.
If you find it difficult to agree on how time is to be spent with your children, a counselling session may be helpful. After getting help from a counsellor, many parents are able to agree.
Mediation is another option.
Grandparents or other relatives can also be granted Court Orders to spend time with the children.
Who Has To Support The Children?
Both parents are obliged to provide financial support for children until the children reach 18 years, are married or are adopted.
Financial support may also be claimed through the Court for children over 18 years, to enable the children to complete their education, or because the children are mentally or physically disabled.
A step-parent has a duty to maintain children only if there is a Court Order in force to do so.
There are presently two maintenance systems in Australia. There is ‘Child Maintenance’ and ‘Child Support’.
Child Maintenance
‘Child Maintenance’ applies to parents who separated before 1 October 1989. In this case, maintenance is agreed by the parents or by Court Order. When deciding on the amount of maintenance, the Court will take into account the following issues:
- financial needs of the children;
- where and how the children are being educated or trained; and
- whether the children have any independent income.
The Court then considers the financial positions of both parents. The Court disregards any income a resident parent receives from an income-tested pension or benefit. If a resident parent’s only income is the pension, then for the purposes of deciding maintenance that parent has no income.
Centrelink requires parents who receive a pension to make a genuine effort to obtain a reasonable level of Child Maintenance.
When deciding how much will be paid for maintenance, it is important to consider expenses such as medical and dental expenses, private school fees or private tuition.
The Court will only order you to pay for private school fees if you agreed that the children would attend a private school and you can afford the payments. In some cases if it can be shown that the children need to attend a private school, the Court may order a contact parent to meet those expenses.
The Court calculates the children’s weekly financial expenses.
The Court will then order the contact parent to make weekly or fortnightly payments, within their determined capacity. If payments fall behind, the resident parent can take action to recover any money not paid. The resident parent can choose to register a Court Order with the Child Support Agency. This allows the Agency to collect the maintenance for them.
Child Maintenance will cease in 2007.
Child Support
Child Support applies to children born after 1 October 1989 or when the parents have separated after that date. Child Support is assessed according to the Child Support (Assessment) Act.
This is administered by the Child Support Agency. The Child Support Agency uses a formula to calculate the amount of money the contact parent must pay.
The formula is based on a number of factors, including:
- the income of each parent;
- the number of children needing support;
- the contact parent having less than 109 nights contact per year; and
- the children attending State Schools.
The Agency assessment may be reconsidered if:
- the contact parent has more than 109 nights contact per year;
- the children have special needs;
- there are significant transport costs involved in contact; and
- either parent’s income cannot be easily calculated.
Changes to Child Support commenced on 1 July 2006. The changes will be introduced in 3 stages.
Stage 1 commenced on 1 July 2006. Stage 2 commenced on 1 January 2007 and Stage 3 commences in July 2008.
Each stage involves significant changes in itself. A brief summary is:
- Stage 1: The maximum annual income threshold for the paying parent was reduced from $139,000 to $104,000 per year.
- Stage 2: Independent reviews of Child Support Agency decisions are now done by the Social Security Appeals Tribunal.
- Stage 3: A new Child Support formula will start (the formula will treat both parent’s incomes and living costs more equally and take into account that older children cost more. It will also ensure that children from first and second families will be treated more equally).
What Should I Do If I Cannot Pay?
Get legal advice immediately if you cannot pay the required amount of Child Support. This will help you to avoid any extra costs for not paying.
If you lose your job and receive an income-tested benefit, your assessment will reduce to a minimal amount.
Who Enforces Payment?
The Child Support Agency is responsible for collecting payments, unless you agree to a private collection. If payments fall behind, any of the following may happen:
- The Agency may ask you to produce certain documents to make clear what your financial situation is. The Agency is also able to access protected information held by the tax office.
- The Agency may contact your employer and have child support payments deducted from your wages.
- Tax refunds may be intercepted.
If you have consistently failed to pay your Child Support, you may be prevented from leaving the country.
Can I Change My Children’s Name?
You cannot change your children’s surname without the consent of the other parent.
If you try to do so, the other parent can apply to the Court to stop the name from being changed.
The Court will stop the children’s name from being changed if:
- it is satisfied that the children’s name was changed without the consent of the other parent; or
- it is satisfied that the change of name is not in the best interests of the children.
When deciding whether the change of name is in the best interests of the children, the Court considers the following points:
- how much the children identify with their father;
- whether the children are likely to suffer embarrassment as a result of the change of name; and
- whether the children are likely to suffer confusion because their name is different from that of their brothers or sisters.
Can I Take My Children Out Of Australia?
There are certain times when it is an offence to take your children out of Australia. These include times when:
- there is a Court Order that relates to where the children will live; or
- there are specific issues relating to the children, contact with the other parent, or where a Court is in the process of deciding about such issues.
If you are concerned that the other parent will take your children out of the country, you should contact the Australian Federal Police. They will put the children on a ‘pass watch’. A ‘pass watch’ is a warning list set up to prevent such children from leaving Australia.
If you wish to take your children out of the country, and they do not have current passports, you must do one of two things:
- you must get written consent from the other parent to apply for passports for the children; and
- if you do not have written consent from the other parent, you must apply to the Court to be given permission to apply for passports for the children.
If you are concerned that the other parent might apply for passports for the children without getting your written consent, you must lodge your objection with the Department of Foreign Affairs. If the children are Australian citizens, you can also lodge an alert with the Passport Office.
If the children have current passports, and you are afraid that they may be taken out of the country, you should apply to the Court to have their passports delivered to the Court and held for safe keeping. You can also ask the Court to have the other parent provide a financial security (bond), to make sure that the children are returned.
Children can be taken out of Australia if:
- the other parent has agreed to let the children leave the country;
- or the Court has agreed to let the children leave the country.
If you wish to take the children overseas on a holiday and the other parent has refused permission, you can apply to the Court for an Order allowing you to leave the country with the children. The Court may put some conditions on such an Order.