Spousal Maintenance vs Child Support: the basics

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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.
 

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.

 

5 key things you should know about child support

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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;

  1. work out each parent’s child support income
  2. work out the parents’ combined income
  3. work out each parent’s income percentage
  4. work out each parent’s percentage of care
  5. work out each parent’s cost percentage
  6. work out each parent’s child support percentage
  7. work out the costs of children
  8. 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.

 

How to document your child support agreement

If you are able to reach an agreement about the collection of child support privately or through mediation, it is crucial to document the agreement to have a written record of each parent’s obligations.

There are 2 types of agreements: limited and binding.  We explain them briefly as follows.

  • Limited child support agreements can be accepted if there is a child support assessment in place and the annual rate payable under the agreement is equal to, or more than, the annual rate of child support payable under the child support assessment. It is not essential to obtain legal advice for the agreement, however it is advisable to ensure that your interests are protected.
  • Binding child support agreements can be made and accepted even if a child support assessment has not been made. The agreement can be made for any amount that all parties agree to, for periodic, non-periodic or even lump sum child support payments. Each party must obtain independent legal advice before entering into the agreement to be aware of the advantages and disadvantages of entering into such an agreement, among other things. A certificate signed by your lawyer will be attached to the agreement.

 

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.

Child custody mediation

What is child custody mediation and how do I prepare?

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Questions around the process of mediation are often asked by our clients.  We all know that going through a divorce is tough – for you, your ex-partner, for the children and 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) suggests first and foremost that couples do not use the Courts where possible and instead engage in mediation prior to escalating to the Court.  Even where a parenting orders application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences prior to 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, that’s where a mediator comes in.  Your 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 is to come to an agreement approved on both sides that can by turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.

Mediators are not there to make judgements or take sides.  They are engaged to essentially chair a meeting between both parties, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which is in their children’s best interests.

 

How do I go about getting a mediator?

 

There are a number of options for mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new Parenting Plan.  Legal representatives are not permitted in that process however.

Private mediation services also exist, usually at a higher cost. Your family law 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 not usually a preferable course of action and is usually an expensive one.  Mediation gives you the opportunity to come to an acceptable resolution swiftly and in a cost-effective way.

 

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 individual 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 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 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 and 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 you 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 a number of sessions to resolve some of the more significant issues.  This is obviously 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 that can help you to understand your options prior to appointing a mediator.  Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and work 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 as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and 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 on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

 

 

How to get custody of a child

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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 are the ‘best interests of the child?’

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.

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The other parent is breaching parenting orders, what are my options?

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Obtaining final parenting Orders is often at the end of a long process for many people which can be emotionally and financially draining.  When the other parent starts breaching those Orders, it can be a huge source of further frustration, worry and headache.

When parenting orders are made by the Court, whether by consent or as a result of a trial, it is important that all people involved comply with the orders.

A person is considered to have contravened a parenting order if they have:

  • intentionally failed to comply with the orders;
  • made no reasonable attempt to comply with the orders; or
  • intentionally prevented compliance or aided contravention of orders by a person who is bound by the orders.

Examples of contraventions of parenting orders include circumstances where a parent fails to return the child or children to the other parent at the time or date specified, where a parent uses corporeal punishment methods (such as smacking) when such acts are expressly prohibited, or where a parent discusses adult issues with the children when they are specifically prohibited from doing do.

Having a reasonable excuse for contravening parenting orders can be a defence in contravention proceedings.   Reasonable excuses can include:

  • circumstances where the person in contravention of the orders did not understand the obligations imposed on them by the orders;
  • the person in contravention believes on reasonable grounds that the contravention was necessary in the interests of their own health and safety or that of the children; and
  • where the Court is satisfied that the person in breach ought to be excused in relation to the contravention.

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.

When seeking a party to be punished by the Court, filing an Application for Contravention of Child Order is an option.  The remedies available from this course of action range from compensating a person for lost time with the children, varying existing orders, imposing fines and, in some cases, imprisonment of the party in breach of the orders.  Care should be taken with this approach, given the Court’s ability to vary parenting orders in contravention proceedings, and we recommend that you seek legal advice before you initiate this process.

If the other party does not want the contravening parent to be punished, however would prefer a remedy to ensure resumption of the arrangements specified in the Orders or other orders to deal with compliance issues, that party may be able to file an Initiating Application seeking certain orders.  Again, you should seek advice before taking this step as costs consequences could flow if such an application was unsuccessful.  We regularly advise clients on these issues, including whether the Court is likely to vary certain parenting orders, or not.

It is also important to remember that parents may be able to resolve matters involving the contravention of parenting orders privately, without resort to litigation in the Court.  There are a range of options available to deal with contraventions and aid compliance outside of the Courtroom.

If you believe that another party to parenting orders is in contravention, contact us today for a reduced fixed fee initial consultation to discuss your options.  Our focus is to resolve your issues, if possible, out of Court.  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.

First published 23 February 2017