Children and parental responsibilities (previously referred to as ‘child custody’, ‘access’, ‘residence and contact’).
When parents separate, one of their first priorities is to work out living arrangements for their children. Our family lawyers can help you in your discussions with your partner and assist you to reach an agreement about parenting issues. If appropriate, we can refer you to counselling services to help with this process.
When parents separate, the Family Law Act stipulates the best interests of the child is the most important consideration when deciding on a child’s living arrangements.
Presumption of equal shared parental responsibility
In accordance with the Family Law Act, each parent of a child who is under the age of 18 years has parental responsibility for the children. Parental responsibility is defined in the Family Law Act as the duties, powers, responsibilities and authority which by law parents have in relation to children.
Equal shared parenting means both parents have a say in making major long-term decisions about the children. Such major long term decisions usually include medical issues, the type of education a child is to receive, religious and cultural matters. Day-to-day decisions, such as what clothes the children wear or what they have for breakfast, are not categorised as major long-term decisions.
When Parenting Orders are made in relation to children, the court will apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. This presumption is about the responsibilities the parents have for the child, it is not a presumption about the amount of time the child spends with each parent.
When doesn’t the presumption apply?
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child/ren or another child/ren who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Parent’s time with the child
Often a child lives mainly with one parent and spends time with the other parent. Sometimes a child spends equal time with each parent. Whatever arrangements are considered, they need to suit your child’s needs and be in their best interests.
Often when parents separate, the most difficult problem to resolve is determining how much time a child should spend with each parent. The court assesses whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent. It is usually seen as beneficial for both parents to have a meaningful involvement in the different aspects of their children’s lives including during the week, on weekends, on holidays and on special occasions.
Best Interests of the Child
When the Court determines what is in the best interests of the child, the following factors must be taken into consideration (refer to s60CC of the Family Law Act 1975):
• The benefit to the child of having a meaningful relationship with both of the child’s parents; and
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- Any view expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks is relevant to the weight it should give to the child’s views;
- The nature of the relationship of the child with:
- Each of the child’s parents; and
- Other persons (including any grandparent or other relative of the child)
The willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent;
The likely effect of any change in the child’s circumstances, such as the likely effect on the child of any separation from:
Either parent or any other child (brother or sister) or any other person, such as a grandparent or other relative with whom the child has been living.
The practical difficulty and expense in the child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The capacity of each of the child’s parents and others (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
If the child is Aboriginal or a Torres Strait Islander, the child’s right to enjoy his or her culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order will have on that right.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
Any family violence involving the child or any member of the child’s family and whether any family violence order applies to the child or a member of the child’s family.
The court must also consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their responsibilities as a parent, and in particular, the extend to which each of the child’s parents: –
- has taken, or failed to take, the opportunity:
- to participate in making decisions about major long-term issues (including the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent) in relation to the child.
- to spend time with the child; and
- to communicate with the child; and
- has facilitated, or failed to facilitate, the other parent:
- participating in making decisions about major long-term issues in relation to the child; and
- spending time with the child; and
- communicating with the child; and
- has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Are the child’s views taken into account?
There is no defined age when the law allows children to decide which parent they would like to live or spend time with. A Court will take into account a child’s wishes but there is no obligation on a Court to follow those wishes in reaching a decision concerning that child. When making parenting orders, the Court does not usually hear directly from children. However, a child’s views can be brought to the attention of a Court through an Independent Children’s Lawyer or through a Family Report prepared by a Family Consultant such as a Psychologist. A Family Report may be ordered by the Court to assist the Judge better understand the issues in dispute, and the family relationships generally, with the assistance of a child-focussed professional. The role of an Independent Children’s Lawyer is to represent the child’s interests in a case and to assist the Judge in deciding what arrangements are in the child’s best interests. The Independent Children’s Lawyer does not “take instructions” from the child but is bound to ensure that the child’s views are put before the Court.
Parenting Plans are not a formal agreement but are evidence of the agreement reached and the arrangements put in place for the care of your children. Parenting Plans are useful if in the future you need to show to the Court the arrangements you had in place and why they were or were not working for you and the children.
Parenting Orders set out who the child lives and spends time with. If you and your partner reach an agreement regarding parenting arrangements, you can formalise the arrangements by obtaining Court Order without the need of you attending Court. We can assist you in drafting Orders that reflect your arrangements.
Court Orders are not necessary for everyone. We can talk to you about whether they will be helpful for you. We can also advise you about parenting plans and other more informal agreements about parenting issues.
If however you and your partner can’t reach an agreement about children’s matters, or if there are urgent issues that need to be addressed, the issuing of court proceedings may be necessary. We can represent you in Court and guide you through what can otherwise be a confusing process. With our experience you can be sure that your case will be presented to the Court in a way that places you in the best position to achieve your desired outcome for your children.
Resolving Disputes about Children through mediation and family dispute resolution (FDR)
Save under exceptional circumstances, the Family Law Act requires you to make an attempt to resolve disputes about parenting matters using Family Dispute Resolution Services before applying to a court for a Parenting Order. We are able to assist you in taking this step. If you are unable to resolve arrangements and issues in relation to the children at mediation, a certificate will be issued which will enable you to commence court proceedings regarding children’s issues.
Mediation or FDR is less expensive than court proceedings and should be considered as the first option to resolving children’s issues. Experience shows that when an agreement is made between the parties themselves, they are more likely to be satisfied with the outcome and comply with the agreement.
What if we don’t reach an agreement?
If the parties fail to reach an agreement about either the future arrangements for the children, then you will need a lawyer to prepare a Court Application on your behalf to obtain parenting Orders. We can assist you with every step in this process, from preparing and filing the initial application to the final court hearing. The Court Process will still enable you to resolve your dispute using court assisted mediation and further negotiations, but if this fails a Judge will ultimately decide what is best for your children after considering all of the evidence at a Final Hearing. Experience demonstrates that if this occurs one or both parents will not be satisfied with the outcome; hence choosing mediation or FDR as the first option in resolving children’s issues.
If you have a children’s matter and want to receive the best possible outcome for your child or children, you need to seek legal advice.
Maintenance and Child Support
To meet the basic needs of a child, the Family Law Act places a duty on all parents to contribute to the maintenance of their children. In making an Order for child maintenance the Court will determine if child support is necessary and the financial contributions which should be made by each party. The Orders will need to be made so that the proper needs of the child are met; in this regard the court will consider the age, education and special needs of the child/ren. Urgent Child Maintenance Orders can be made if the Court considers that the child is in immediate need of financial assistance.
The Child Support Agency makes assessments on the amounts payable by parents for child support.
A Child Support Assessment is based on the costs of the children, the income of both parents, the care of the children for whom child support is payable, whether the parents have any relevant dependant children living with them and whether the parents have any children in child support cases. Different formulae are used in different circumstances for the assessment of child support.
Calculating Child Support
The main considerations for the court in determining the amount of child support to be paid include:
- The capacity of each parent to earn, above the level required for self support;
- The ages of the children;
- The fact that parents should share in costs;
- The combination of the level of care (as a percentage);
- The level of the parents income;
- The costs of raising each child and any other child in the payer’s care.
Do we have to go through the child support agency?
Put simply, no. If both parents would prefer not to utilise the services of the child support agency, it is possible for the parties to enter into a child support arrangement by agreement. These agreements can be made in two forms, a binding child support agreement and a limited child support agreement
Legal Aid offer grants of assistance to eligible people to determine matters for children in family relationship breakdowns. At Joliman Lawyers, we often undertake Legal Aid matters (both Victoria and New South Wales) and will be able to advise you of your eligibility for a grant of assistance from legal aid. If you think you may be eligible for Legal Aid it would be useful to bring with you to your initial appointment: –
- a copy of your Centrelink (pension/health care) card;
- your last 3 months bank statements of all accounts you hold;
- If you are in receipt of a Centrelink pension, a recent copy of your Centrelink Income Statement;
- If employed, your last 3 pay slips.
If you are self employed, you still may be eligible for legal aid, however more financial documents other than those listed above are required.
Providing these documents will allow us to make an immediate application for Legal Aid and will determine your eligibility from the start.