We are often asked about the process of child custody mediation by our clients. With years of experience as family lawyers, we understand that going through a divorce is tough – for you, your ex-partner, the children, and the wider family. When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision-making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.
In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) emphasises that first and foremost, couples should not use the Courts where possible and instead engage in child custody mediation before escalating to the Court. Even where a parenting order application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences before having the Court intervene.
Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have. If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing. However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances, and education.
When parents can’t agree during child custody discussions, that’s where a mediator comes in. A family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner. The goal of mediation in custody cases is to come to an agreement approved by both sides that can be turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.
Mediators are not there to make judgments or take sides. They are engaged to essentially chair a meeting between both parties and facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached that is in their children’s best interests.
How do I go about getting a mediator?
There are several options for child custody mediation. The most cost-effective is the use of the Family Relationship Centres, Family Relationships Australia, or other public and community-based services. These services can assist parents in discussing the issues and potentially writing up a new Parenting Plan. Legal representatives are not permitted in this process, however.
Private child mediation services also exist, usually at a higher cost. Your family lawyer can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights, and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.
Going to court is usually avoided and when undertaken is usually expensive. Friendly mediation allows you to come to an acceptable resolution swiftly and cost-effectively.
When isn’t mediation appropriate?
Sometimes, mediation isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected. If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.
Should I seek legal advice before going into child custody mediation?
The most effective mediation happens when both parties have sought legal advice about their circumstance beforehand. You are much more likely to be prepared, to understand the probable outcomes, your options, and how a Court might deal with your matter. By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.
Your lawyer can come to mediation sessions and advise you as the session progresses. Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.
How to approach mediation
Preparation is key to effective mediation. With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement. Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them. Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.
Mediation in custody cases isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and the guidance of the mediator, you are much more likely to reach a settlement that works for both of you.
What can be resolved in mediation?
The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education, religion, how time will be split between parents and how school holidays will be spent, overseas travel, and the division of payments for things like after-school activities.
What is the process of mediation?
When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation. If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.
Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what they hope to achieve from mediation.
Each mediation session can run for a shorter period, such as around three hours, or even a full day. In some cases, it can take several sessions to resolve some of the more significant issues. This is expedited if both parties come prepared and willing to compromise.
If no agreement can be reached in mediation, then a certificate will be issued by the mediator. Either parent can then file for parenting proceedings in the Court. Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend, or for another relevant reason.
I am considering child custody mediation, what should my next steps be?
Where possible, it would be prudent to speak to a family lawyer who can help you understand your options before appointing a mediator. Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and works closely with psychologists, social workers, and mediators to help you and your family stay out of Court wherever possible. We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.
At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible. Shannon Daykin is an experienced Family and Divorce Lawyer. An Accredited Family Law Specialist, Shannon was recently named a Leading Family & Divorce Lawyer (Recommended, Brisbane) and a Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us at (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children. In Australia, we refer to this as parenting arrangements – who a child will live, spend time and communicate with, among other things.
Most of the time, parents who have separated can agree on a parenting plan for their children. For some, the children might live with one parent, and see the other at weekends, holidays and special days. For others, the children may effectively have two homes and spend an equal amount of time with each parent. For many, the arrangements are somewhere between.
Sadly, not all agreements can be made amicably, or there may be extenuating circumstances for which parents choose to litigate in the family court system. Litigating child matters in the courts can be particularly emotionally straining for all parties involved and it should be considered to be a last resort. That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation.
What is child custody?
The term ‘custody’ is no longer used by the family law courts, but still used regularly by others and in the media. In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and maintenance. The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.
There is no standard care arrangement for a child following separation or divorce, but the starting point is Section 65E of the Family Law Act. This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.
The law assumes that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse. However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child. This decision can be made by the Courts in the best interests of the child.
Should I go to court for child custody?
In most child custody cases, parenting arrangements can be made without the intervention from the Courts. Most family law experts recommend finding alternative ways to finding a resolution, for example mediation. By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and focus on raising your children.
If you and your ex-partner cannot come to an agreed parenting arrangement and are seeking court intervention, ask yourself the following:
- Do I want sole parental responsibility?
- Why do I want sole parental responsibility? Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
- Why do I want the children to live with me? Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
- Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?
If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders. You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances. Found out more about how to calculate child support in Australia.
What is the legal process for getting child custody (parenting order)?
Before starting the process to get a parenting order, commonly referred to in the media and community at large as child custody, you should first consult with your solicitor before taking any action. You generally must be able to demonstrate that you have tried alternative methods of dispute resolution prior to filing an application, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse).
If you were unable to reach an agreement through dispute resolution methods, then you will need to file documents with the Federal Circuit and Family Court of Australia. This includes the initiating application, affidavit(s), mediation certificate, notice of risk, and the court filing fee.
What the court takes into consideration
The Courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests. The primary considerations are;
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect children from any harm, such as family violence, neglect or physical and psychological harm
The latter is always deemed the priority of the two primary considerations.
Other additional considerations may include;
- The views or wishes of the child – if these are expressed
- The relationship of child with their parents and significant others, for example grandparents and siblings
- Parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations, opportunities taken up to spend time or communicate with a child
- The effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
- Cultural issues – for example religion
- Any family violence issues
- Any other issues the court deems are important to the case
Breaching a parenting order
As parenting orders are court ordered, all involved must comply with it. If a person breaches a parenting order, it is considered very serious and can result in:
- Court-ordered participation in a parenting program
- Changes to the existing parenting order
- Fines
- Court-ordered community work
- Jail time in extreme/serious cases
What if I already have a parenting order in place and circumstances change?
If you have an existing parenting order and want to make changes, then you will need to prove to the Court that there has been a significant change in circumstances.
If both parties agree that there is a need to change the existing order and agree on the proposed changes, then you can file a draft consent order together, which the Court can then formalise without your physical presence in court.
If there have been significant changes in circumstances but both parties cannot come to an agreement on the proposed changes to the parenting order, then you will have to essentially redo the initial process of applying for a parenting order as if it were the first time. This is an application to vary parenting orders and expert legal advice should be sought first.
Get help with your parenting plan today
If you are going through a separation and need help with your parenting plan, our family lawyers are here to help. At Daykin Family Law, we’ve worked with hundreds of parents to come to a resolution in the best interests of their children, in and out of court.
For expert legal advice on the most appropriate and cost effective course of action for you and your family, contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
Keep in mind that extensive changes to parenting laws under the Family Law Act 1975 (Cth) will take effect from May 2024. The information contained in this article is current as at the time of posting. We recommend that current legal advice is obtained.
With around 48% of divorces involving children under 18 years old in Australia, creating a co-parenting plan that minimises the negative effects of separation for children still living at home is crucial.
Parenting plans can be complex and require patience, understanding and often, a helping hand.
At Daykin Family Law, our expertise surrounding parenting plans and disputes has helped us get recognised as one of Brisbane’s leading lawyers in parenting and children matters in 2023 and prior years.
We’ve used our knowledge and expertise to create a guide that will help you create a parenting plan, tips for some of the best communication strategies, and to help prepare you to navigate any potential challenges.
What Is Co-Parenting? - Meaning And Benefits
Co-parenting can be understood as a shared parenting arrangement where separated or divorced parents work together to raise their children. It involves communication, collaboration, and mutual decision-making, focusing on your children’s well-being and best interests. There are a range of benefits when parents can successfully co-parent including:
- Provides children with stability and a sense of security.
- Reduces conflict exposure, benefiting children’s emotional health.
- Encourages both parents to remain actively involved in their children’s lives.
- Helps children maintain strong relationships with both parents.
When creating a co/parenting plan, it may be best to ensure compliance the Family Law Act (Cth) 1975, depending on your circumstances. Agreements can be recorded in a Parenting Plan under the Act or consent orders, as some examples.
The Legal Framework Of Co-Parenting In Australia
Australia’s approach to co-parenting after separation is governed by the Family Law Act (Cth) 1975, which prioritises the best interests of children in all parenting decisions.
Under this framework, co-parenting arrangements are encouraged as a means to ensure children have meaningful relationships with both parents post-separation when it is safe to do so.
This Act outlines the responsibilities and rights of parents, stressing the importance of children’s safety and emotional well-being.
It advocates for shared responsibilities and duties, focusing on the best interests of the child as the paramount consideration.
In Australia, the Family Law Act also supports flexible arrangements, catering to the diverse needs of different family structures.
With this in mind, you’re now ready to create your co-parenting plan.
Guide To Developing A Co-Parenting Plan
The most important step in creating a parenting plan or co-parenting plan is to prioritise the needs and well-being of your children above all else. Every decision and discussion should be centred on what is best for them. To ensure your parenting plan achieves this goal, it’s crucial to approach these conversations with openness and a willingness to understand each other’s perspectives if it is safe to do so. Here are some examples:
Co-Parenting Plan Element | Specifics to Include |
Living Arrangements |
|
Time Arrangements |
|
Education Plans |
|
Healthcare Arrangements |
|
Extra-curricular Activities |
|
Parenting Styles and Values |
|
Travel and Vacations |
|
Communication Guidelines |
|
Financial Responsibilities (see note at the end of this table) |
|
Dispute Resolution |
|
Process for Revising the Plan |
|
Special Considerations |
|
Transition Guidelines |
|
For certain financial responsibilities relating to child support to be binding and enforceable, these may need to be recorded in a Limited Child Support Agreement or Binding Child Support Agreement.
Communication Strategies For Successful Co-Parenting
Effective communication stands at the heart of successful co-parenting. It lays the foundation for mutual understanding, problem-solving, and decision-making, all crucial in maintaining a healthy environment for your children. Here are our key strategies to enhance communication in a co-parenting arrangement:
Establish Clear Communication Channels
Decide on the most effective and consistent ways to communicate, be it through emails, texts, or phone calls. Utilising co-parenting apps can also streamline communication, keeping it focused and organised. This is of course on the basis it is safe to do so.
Adopt A Business-Like Tone
Approach communication with a professional and respectful tone can assist. This helps in keeping discussions objective and focused on your children’s needs, rather than personal grievances.
Engage In Active Listening
Make a conscious effort to listen and understand the other parent’s perspective. Acknowledging their views does not always require agreement, but it fosters a collaborative environment.
Choose Your Battles Wisely
Not every disagreement needs to escalate. Determine which issues are worth discussing and which can be let go in the larger interest of your children.
Plan Regular Check-Ins
Schedule regular discussions to review how the co-parenting plan is working and address any emerging issues. This can prevent small problems from becoming larger conflicts.
Utilise Professional Support When Needed
In situations where communication becomes challenging, don’t hesitate to seek help from mediators or counsellors. They can offer guidance and strategies to improve dialogue.
Remember, effective co-parenting communication is not about winning arguments but about working together for the best outcomes for your children. By prioritising respectful and clear communication, you pave the way for a more harmonious and effective co-parenting journey.
Navigating Challenges And Conflicts In Co-Parenting
Handling challenges and conflicts is an inevitable part of co-parenting. If these obstacles are not managed effectively, they can impact not only the parents but also the children involved. Here are some strategies to navigate these difficulties:
- Acknowledge and respect differences in parenting styles and perspectives
- Focus on collaborative problem-solving over dwelling on the problem
- Keep children out of conflicts
- Seek professional guidance when conflicts become unmanageable or safety is an issue
- Develop a conflict resolution plan to handle disagreements
- Regularly review and adjust your co-parenting plan as your situations change
Remember, the goal in co-parenting isn’t to avoid conflicts altogether, but to handle them in a way that maintains respect, focuses on solutions, and prioritises your children’s best interests. By adopting these strategies, co-parents can create a stable and positive environment for their children.
Should I Involve A Lawyer During The Co-Parent Planning Process?
Deciding whether to involve a lawyer during the co-parenting planning process is a significant consideration for many parents. Some of the benefits a family lawyer can bring include:
Legal Expertise
Lawyers bring an understanding of family law that is crucial in drafting a parenting plan. They ensure that your agreement is not only fair but also complies with legal standards.
Objective Perspective
Emotions can run high during the planning of co-parenting arrangements. Lawyers provide an objective viewpoint, focusing on the best interests of the children and helping to navigate sensitive discussions.
Ability To Identify Potential Issues
Experienced lawyers can foresee potential problems and address them in the planning stage, which can prevent misunderstandings and conflicts in the future.
Ensuring Enforceability
For a co-parenting plan to be legally enforceable, it often needs to meet specific legal criteria. A lawyer can ensure that all necessary elements are included depending on how any agreement is to be recorded (such as a Parenting Plan or Consent Orders).
Assistance With Mediating Disputes
If disagreements arise during the planning process, lawyers can engage mediators or liaise with the other parent or lawyer, helping to find amicable solutions that serve all parties involved.
While involving a lawyer in the co-parenting planning process is not mandatory, their involvement can bring legal assurance, clarity, and peace of mind, making the process smoother and more effective for everyone involved.
Other Co-Parenting Resources And Support Systems
While there are numerous counselling services, support groups and educational materials you can use to help navigate co-parenting, below are some links that might help when you feel like you need 3rd party support:
- Relationships Australia provides relationship support services for individuals, families and communities contact
- Australian Psychological Society can provide listings of qualified therapists and psychologists specialising in family matters.
- Family Relationship Advice Line is a national telephone service that helps families affected by relationship or separation issues, including information on parenting arrangements after separation
A suitably qualified family lawyer can help advise on the next steps that need to be taken.
Looking For Help With Your Co-Parenting Plan?
In summary, effective co-parenting requires thoughtful planning, clear communication, and sometimes, the guidance of legal professionals.
By carefully considering each step and seeking the right support, you can lay a strong foundation for a positive co-parenting journey.
If you’re navigating the co-parenting process and need expert legal advice, Daykin Family Law is here to help.
Contact us on 07 3852 5490 or via our online contact form to ensure your co-parenting plan is comprehensive, appropriate, safe, and tailored to your family’s unique needs.
As government restrictions resulting from the COVID-19 pandemic easing, many families are starting to resume travel. A common question that separated parents often ask is whether they can travel with their children following a separation, and if there are any restraints on travelling.
Like all families, when travelling overseas or interstate, there are certain matters that separated families need to consider. Below we address some frequently asked questions when travelling with children from separated families.
Question: Can I travel with my children after separation?
The ability to travel with your children is largely dependent on the care arrangements that are agreed between the parents. If your parenting arrangements are subject to a Parenting Plan, it might stipulate how travel will occur and what information needs to be shared. If your parenting arrangements are subject to parenting Orders, then the Orders may include provisions relating to travel such as when you are permitted to travel with your children, how long you can travel for and what type of notice and information you need to provide to the other parent. It is important to comply with any Orders in this regard to ensure that you are not contravening any Orders.
A word of caution, penalties can apply if a person travels internationally with a child whilst parenting proceedings are on foot in the Court unless it is pursuant to Orders or there is certain consent given. This also applies to situations where Parenting Orders are in place. If your parenting arrangements are not subject to parenting Orders, then it may still be important that you provide notice to the other parent of your intention to travel with the children. This will promote good co-parenting and keep the lines of communication open.
It is not uncommon for a parent to feel reluctant for their children to travel. This may be due to a variety of reasons such as concerns for their personal safety, that they may miss the chance to spend time with the children or perhaps that the children may miss school or other important events. It can be essential to address any concerns that the other parent may have so that these concerns can be alleviated.
Question: What notice and information do I need to provide to the other parent before we travel?
If you want to travel with the children, you should consider providing the other parent with notice of your intention to travel if it is safe to do so. Such notice should ideally be provided well before your intended travel dates and should generally contain information such as a detailed itinerary for the planned travel, including flight times, a copy of a return flight confirmation and contact details such as an address and a telephone contact number for the children as some examples.
If there is a parenting Order or a Parenting Plan in place, then it is important that you check these documents to confirm what information you need to provide to the other parent as there may be certain requirements in this regard. It is important to contact a suitably qualified lawyer if you are unsure of your obligations pursuant to any Orders or Parenting Plan.
Question: How do I get a passport for my children?
Typically speaking, if both parents share parental responsibility, then both parents will need to sign any and all documents necessary to facilitate the production of an Australian passport and any renewal for such passports. If there is an Order for sole parental responsibility, then the other parent may not be required to sign any documents. Again, it is important that you review any parenting Orders or Parenting Plans and seek legal advice in relation to the meaning of these Orders if you are unsure.
Question: What happens if the parents are unable to reach an agreement about travel?
If the other parent is not agreeable to you travelling with the children, you can attempt family dispute resolution or mediation with respect to this issue. If you are still unable to agree, then the parent wishing to travel with the children may need to make an application to the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) to determine this issue. If the Court deems that it is in the best interests of the children to travel overseas, then the Court can make an Order that the children can travel overseas without the consent of the other parent.
Question: I am concerned that my partner will remove the children from Australia without my consent. What can I do?
If you are concerned that your children may be taken overseas without your consent, you can apply to the Court to have the children placed on the Airport Watch List, otherwise known as the Family Law Watchlist. The Airport Watch List is maintained by the Australian Federal Police and is designed to prevent listed children from travelling overseas without your consent or an Order from the Court. The Airport Watchlist essentially alerts Police in the event that a person tries to remove the children from Australia. In this case, the children will be stopped at the airport and will not be allowed to leave the country. Generally, you may apply to place your children on the airport watch list in certain circumstances, including when:
- A court has issued an Order limiting or preventing the children’s travel;
- A Court has issued an Injunction limiting or preventing the children’s travel;
- There is an application before the Court seeking to limit or prevent overseas travel of the children;
- There is an application before the Court seeking an Order to place the children on the Family Law Watchlist; and/or
- An Order or Injunction is limiting or restricting the children’s travel overseas which is under an appeal.
If you are concerned that your children may be taken overseas, you should seek immediate legal advice. There are other measures that can also be taken.
Question: Can I travel with my children if their names are on the Airport Watch List but both parents agree for the children to travel?
If your children are on the Airport Watch List, then it is strongly recommended that you discuss any intended travel with a suitably quailed lawyer before you travel. This is to ensure that you are aware of any potential issues that may arise when you travel. If your children’s names are registered on the Airport Watchlist and both parents consent to the children being taken out of Australia, then you will need to remove your children’s names from the Airport Watchlist before you can travel outside of the country. This is an important step which can be overlooked and can be costly and disappointing when travel is already booked. If you wish to remove your children from the Airport Watchlist, and their names were placed on the list as a result of a court Order, you will generally require a further Order removing the children from the Airport Watchlist
Question: My former partner has taken our children overseas without my consent. What can I do?
In circumstances where the children have already been removed from the country without the other parent’s consent, urgent processes can be initiated for their return. This can include an urgent application under the Hague Convention when children have been taken to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides a pathway to recover children who have been abducted so that they can be returned to Australia, or their home country. Not all countries are signatories to the Hague Convention. If your child has been taken overseas without your consent, you should seek urgent expert legal advice. Any delay may impact on your chances of success.
It is important that you understand your rights and obligations if you are planning on travelling with your children. Make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.
It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse. Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.
In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.
What is Spousal Maintenance?
Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves. It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.
You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship? In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses. The duty to support and maintain each other works both ways, and this obligation may continue even after separation.
To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied. Firstly, the applicant must have a need. Secondly, the respondent must have capacity to pay spousal maintenance. There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.
For a clearer understanding of the concept and purpose of spousal maintenance, visit our article on What is Spousal Maintenance?
Child Support
Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren. A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement. For the former, both parties need independent legal advice. Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts. Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs. Lump sum payments are also possible.
Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency). Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.
Time limitation for Spousal Maintenance
It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.
Interestingly, the Court still has power to grant permission (“leave”) to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time. For this, the party making the application will need to demonstrate hardship.
What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.
Seek legal advice
There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case. This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.
Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance. Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement. There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
If you have separated from your partner and have care of the children from that relationship, you are, in most circumstances, able to apply for financial assistance from the other parent to contribute to the costs of raising those children, in the form of child support obligations.
Child support stems from a fundamental principle that both parents have a responsibility to provide for their children. After separation, whether married or de facto, an agreement can be reached regarding the type and level of child support that is paid from one parent to the other to make sure that a child is supported financially by both parents. Child support is an ongoing payment that is purely for the financial support of a child from that relationship.
The area of child custody can be fairly complex, particularly if parents cannot come to an amicable agreement or there are extenuating circumstances that require the intervention of the Court. In our previous blog post, you can find out in more detail how to get child custody. Today, we’ve summarised the key things we think you need to be aware of when considering your child support obligations.
How long the obligation lasts
In Australia, child support obligations continue until a child turns eighteen years of age, or to the conclusion of Year 12 if the child turns eighteen during that year of schooling. However, in order for the obligation to continue to the end of Year 12 a specific application must be made. In some circumstances, the Court can order for a parent to financially support an adult child of the relationship.
There are certain circumstances in which the obligation can be stopped early, for example:
- If the child becomes self-sufficient
- If the child marries or enters into a marriage-like (de facto) relationship
- If the child is adopted
- If the child dies
On the other hand, child support can also be extended in circumstances where, for example:
- The child over 18 can’t support themselves because they are completing their secondary or tertiary education
- The child over 18 has a mental or physical disability
This is called adult child maintenance. If you would like to receive child maintenance for your adult child, or you have been asked to pay adult child maintenance, you should get legal advice.
How to calculate child support
The procedure for paying and receiving child support is governed by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).
The actual process of assessing the amount of child support can be quite complex, but in general terms it involves the use of an 8 step formula;
- work out each parent’s child support income
- work out the parents’ combined income
- work out each parent’s income percentage
- work out each parent’s percentage of care
- work out each parent’s cost percentage
- work out each parent’s child support percentage
- work out the costs of children
- work out the child support amount
In practical terms, the simplest way to work out your potential child support contribution or what you are likely to receive is to use the Department of Human Services Child Support Estimator. The estimator takes you through each step and provides a calculation based on your individual circumstances.
How to pay or receive child support
There are various ways in which you can organise and manage your child support payments. This will depend on your individual circumstances as well as how able you are to communicate with your ex-partner.
Child support can be paid:
- Through the Child Support Agency periodically
- Privately following an assessment
- Directly between the parents (self-managed)
If you and the other parent are not able to communicate effectively, it may be advisable to organise your child support payments though the Child Support Agency by opting for the ‘Child Support Collect’ method.
You are able to change to another arrangement at a later date if you find you need to, however the parent receiving the child support must agree to the change in payment method.
If either the payer or payee are living abroad, child support payments may still apply. If this is the case, you should seek legal advice.
What happens if your child support matter goes to Court
There are limited circumstances where child support arrangements go to Court. Most child support disputes are handled outside of the Court. However, some examples where a case may go to court are:
- where the paternity of the child is in dispute;
- if you have property or parenting proceedings underway and you need to dispute an assessment which does not take into account a parent’s proper circumstances;
- if you are in proceedings for property or parenting matters and you want to halt any assessment process pending the outcome;
- to set aside or vary a child support agreement where the other parent won’t agree to stop or change the arrangements set out in the agreement.
Compiling the correct documentation, serving other parties and the ensuing evidence gathering and subsequent hearing can be complex. It is vital in these circumstances that you seek independent legal advice from a family law specialist.
Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody. Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended).
Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.
We will give you expert legal advice on the most appropriate and cost effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment today.
If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children.
Most of the time, parents who have separated agree on the future parenting of their children. For some, the children might live with one parent, and see the other at weekends, holidays and special days. For others, the children may effectively have two homes and spend an equal amount of time with each parent. For many, the arrangements are somewhere between.
Sadly, not all agreements can be made amicably, or there may be extenuating circumstances that mean parents choose to litigate in the family court system. Litigating child matters in the courts can be particularly emotionally straining for all parties involved and is often considered to be a last resort. That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation. In this article, we seek to provide some clarity around the process of seeking child custody.
What is child custody?
The term ‘custody’ is actually no longer used by the family law courts, however it is still used regularly by others and in the media. In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and financial maintenance. The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.
What is the legal process for getting child custody?
There are no standard arrangements for the care of a child following separation, however the starting point is Section 65E of the Family Law Act. This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.
The law assumes firstly that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse. However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child. This decision is made by the Courts in the best interests of the child.
What is the legal process for getting child custody?
The courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests. The primary considerations are;
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect children from any harm, such as family violence, neglect or physical and psychological harm
The latter is always deemed the priority of the two primary considerations. There are a host of other additional considerations that may include;
- the views or wishes of the child – if these are expressed
- the relationship of child with their parents and significant others, for example grandparents and siblings
- parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations
- the effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
- cultural issues – for example religion
- any family violence issues
- another other issues the court deems are important to the case
Should I go to court for child custody?
It is most often the case that parenting arrangements can be made without the intervention of the Courts. Most lawyers would recommend finding alternative ways to finding a resolution, for example mediation. By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and raise your children.
We pride ourselves on only a very small percentage of our matters making it to a final hearing in the court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.
If you are seeking court intervention, ask yourself the following;
- Do I want sole parental responsibility?
- Why do I want sole parental responsibility? Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
- Why do I want the children to live with me? Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
- Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?
If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders. You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances.
What is the process for getting a court order?
You must demonstrate that you have tried alternative methods of dispute resolution prior to filing an application with the courts, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse). It is imperative to get advice from your solicitor prior to taking any action.
If you are unable to reach an agreement, documents need to be filed with the Federal Circuit Court of Australia, including the initiating application, affidavit(s), mediation certificate, notice of risk and the court filing fee. In some cases, an application may need to be filed with the Family Court of Australia. It is really important to seek advice from a family law expert if you are considering going down this path. We can guide you through the parenting arrangements process, avoiding litigation where possible and ensuring you can the best outcome for your children and family. If Court is the only option, then we can guide you through the litigation process.
What if I already have a parenting arrangement in place and circumstances change?
Firstly, it depends how the parenting arrangement is recorded. If you have a court order and want to vary it, you may need to satisfy the Court that there has been a significant change in circumstances, which requires expert family law advice.
The above gives you just a snapshot of some of the complex factors involved when considering child custody. It is possible to avoid Court and come to a resolution that suits both parties, particularly with the support of a friendly, understanding and compassionate family lawyer. At Daykin Family Law, we’ve worked with hundreds of parents to come a resolution in the best interests of their children.
We have developed close relationships with psychologists and social workers who also act as experts in the Family Law Courts and can help you and your family stay out of the Court system wherever possible. If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.
Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody. Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended). Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.
We give you expert legal advice on the most appropriate and cost effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
Obtaining final parenting orders can be a lengthy and often emotionally taxing process for many parents. After all the effort and energy invested in securing an order, it can be deeply frustrating when the other parent breaches these orders.
If you’re currently dealing with breaches of parenting orders, understanding your options and the legal avenues available to you can make a significant difference in resolving the situation.
What Constitutes a Breach of Parenting Orders?
In Australia, a breach of parenting orders occurs generally when a party:
- Intentionally fails to comply with the orders.
- Makes no reasonable attempt to comply with the orders.
- Prevents or aids another person in contravening the orders.
Common examples of breaching parenting orders include:
- Failing to return the child at the agreed time.
- Using corporal punishment (such as smacking) when expressly prohibited.
- Discussing prohibited topics (e.g., adult issues) with the children again when expressly prohibited.
What Is a Reasonable Excuse for Breaching Parenting Orders?
In some cases, there may be a reasonable excuse for breaching parenting orders, which can act as a defence during court proceedings. Common reasonable excuses include:
- Believing on reasonable grounds that the contravention was necessary to protect one’s own health and safety or the health and safety of the child.
- The court accepted that the breach ought to be excused under specific circumstances.
If someone contravenes a parenting order without reasonable excuse, the other party may wish for the contravening party to be punished by the Court for non-compliance or, alternatively, may simply wish for the contravening party to comply with the Orders.
However, proving a reasonable excuse requires careful consideration of all circumstances. It’s recommended to seek professional advice before presenting such a defence.
Struggling to navigate co-parenting? Check out our article on effective co-parenting strategies.
Legal Remedies for Breaching Parenting Orders
If the other parent breaches parenting orders without reasonable excuse, you have several legal options available to seek compliance or punishment for the contravention. These include:
- Application – Contravention Filing this application with the Federal Circuit and Family Court of Australia may lead to various remedies, including:
- Compensating the other parent for lost time with the child.
- Varying the existing parenting orders.
- Ordering a parenting into a relevant program.
- Imposing fines or, in serious cases, imprisonment.
Note: Filing a contravention application can sometimes result in the court varying existing orders. This is why we recommend seeking legal advice before pursuing this option.
- Initiating Application to aid compliance with the Orders If your primary goal is to ensure compliance rather than punishment, an Initiating Application may be appropriate. This legal action aims to ensure that the contravening party complies with the existing orders or seeks new orders to address non-compliance. However, keep in mind that costs orders can be made if an application is unsuccessful. Daykin Family Law regularly advises clients on these issues, including whether the Court is likely to vary certain parenting orders, or not. There are now specific provisions under the Family Law Act 1975 (Cth) to do with varying existing parenting orders and expert legal advice should be should for these matters.
Non-Court Solutions for Breaching Parenting Orders
In some cases, resolving the breach outside of court may be the best approach, as litigation can be both costly and time-consuming. Alternative options include:
- Family Dispute Resolution (FDR): This process involves mediation between the parties to discuss the breaches and seek mutual resolutions without court intervention.
- Negotiation: Some breaches can be resolved through open and constructive communication, ensuring that both parties understand the terms of the parenting orders.
It’s important to explore these options before turning to the courts, as resolving disputes amicably can be less stressful for all parties involved, especially the children.
Seeking Legal Advice
If you believe that the other parent is consistently breaching the parenting orders, seeking legal advice is essential. An experienced family lawyer can help you assess your options and ensure you take the right steps to resolve the issue efficiently and effectively. At Daykin Family Law, we specialise in navigating complex family law issues and finding solutions that are in the best interest of you and your children.
Contact Daykin Family Law for a fixed-fee consultation to discuss your options.
