Who Gets The Children?

It does not matter whether parents are married or in a de facto relationship. All 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 “esidence, 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, i.e. 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.
  • Less Adversarial Trial: The program represents a move away from the adversarial Court process towards a mediation process managed by a Judge.
  • Compulsory Mediation: From 1 July 2007 an 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.

In some cases, the Court may order that an Independent Children’s Lawyer (ICL) are appointed. An ICL is a solicitor who acts 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.
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 from 1 July 2006 most Orders for parents spending time with their children now 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.

Orders for ‘time spent with’ 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.

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.

Documenting Arrangements

Children’s care arrangements can be documented with either a Parenting Plan or a Consent Order.

Parenting Plans are written agreements, signed by both parents and setting out the children’s arrangements. They are not registered with the Court and are not legally binding.

If you want your agreement to be legally binding, the terms of the agreement must be drawn up as a Consent Order and filed with the Court.

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.

Child Support

The Child Support Agency was established in 1989. Its purpose is to assess and collect child support payments.

Child support is assessed by the Child Support Agency pursuant to a formula. The formula was completely changed on 1 July 2008. And is now based on a number of factors, including:

  • The income of both parents;
  • The level of care that each parent has;
  • The children attending state schools.

The formula also takes into account that older children cost more, via a “schedule of costs” that calculates the cost of children according to the combined income of both parents.

The Agency assessment may be departed from in special circumstances

  • The children have special needs;
  • The children are attending a private school;
  • There are significant transport costs involved in ‘time spent with’ a child; and
  • Either parents income cannot be easily calculated.

There are two types of Child Support Agreement, binding and limited.

A binding agreement has strict requirements, including a solicitors certificate being signed. They can only be terminated by a further written agreement or an Order of the Court.

A limited agreement does not need a solicitors certificate however there must be a formula assessment already in place and the amounts payable under the agreement must be equal to or greater than the formula assessment.

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 arrears accrue it is possible for you to pursue enforcement of arrears through the Court, if you wish.

If you are making payments and they fall behind, the Agency may take any
of the following steps:

  • 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;
  • Contact your employer and have child support payments deducted from your wages;
  • Intercept any tax refund.

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.

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 ‘passport watch’. A ‘passport watch’ is a warning list set up to prevent such children from leaving Australia.

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.

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.

Determining Parentage

A paternity test is a common occurrence in Family Law cases. The test involves a DNA sample being taken from the alleged father, the mother and the child, to provide evidence as to whether the alleged father is the biological parent of the child.

Paternity tests can be done in a variety of (medical sample) ways and provide extremely accurate results. The tests can be conducted during the pregnancy however in legal proceedings the testing occurs after a child is born.

If parties cannot reach an agreement for testing to occur an Application can be made to the Court seeking a direction that the testing occurs. In considering such a request the Court needs to be satisfied that there is a ‘presumption of parentage’. (separate criteria)

If the Court Orders that an alleged father attend for DNA testing and he refuses then he is deemed to have failed the test and to be the father.

When a separated parent wants to register an Application with the Child Support Agency, if there is insufficient evidence of parentage then the Agency will refuse the Application. If the Agency accepts the Application but the assessed party disputes it, then the matter must be resolved by the Court.
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B.S., Brisbane

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J.H., Brisbane

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