Child Support – Andrews Family Law https://andrewsfamilylawyers.com.au Mon, 15 Jul 2024 05:49:17 +0000 en-US hourly 1 https://wordpress.org/?v=6.6.1 https://andrewsfamilylawyers.com.au/wp-content/uploads/2023/11/favicon-blue.svg Child Support – Andrews Family Law https://andrewsfamilylawyers.com.au 32 32 Child custody arrangements, do you understand the differences? https://andrewsfamilylawyers.com.au/child-custody-arrangements/ Sat, 13 Jul 2024 10:10:13 +0000 https://andrewsfamilylawyers.com.au/?p=6291

When you’re dealing with child custody arrangements of your child, it’s crucial to get the process correct. Decisions around parenting arrangements have long term effects on children and co-parents. There are different options available. We want to use this article to ensure you understand the best plan for you and your family. 

Documenting parenting arrangements

Decisions around parenting can be documented formally or informally.

Informal arrangements

If parents are on good terms, they can draft a parenting plan to document their agreement. While this option can work for some, it has risks. Since parenting plans aren’t legally enforceable, it’s difficult for a parent to hold their former spouse accountable if they breach the agreement.

Court order

The other option is to apply to the Court for a court order. If the parents have an existing parenting plan, this can be formalised through a consent order. This is generally recommended for the benefit of the child.

If parents can’t agree on an arrangement, they’re required to attend family dispute resolution to mediate their differences. If dispute resolution doesn’t produce a suitable outcome, the Court can grant parenting orders that meet the best interests of the child.

Types of Child Custody Arrangements in Australia

There are many ways to arrange child custody in Australia. There are two primary custody areas: physical custody and legal custody.

Legal custody

Legal custody refers to a parent’s right to make decisions affecting the child’s life. In the Family Law Act, this is referred to as parental responsibility.

Parental responsibility

The Family Law Act defines parental responsibility as all of the duties, powers and authority that parents have in relation to their child. The Family Court previously assumed equal shared parental responsibility to be in the child’s best interests. This meant that both parents had an equal say in major long-term decisions such as their child’s education, healthcare and living arrangements. However, it no longer starts from this position. Regardless, we recommend co-parents find a way to both maintain a meaningful relationship in their child’s life.

parental responsibilities

Physical custody

Physical custody refers to the child’s living arrangements. Parents can choose for the child to live primarily in one residence, or share physical custody.

Joint custody

Parents can decide that the child will split their time between two residences. This can work, but there are many factors you should consider before choosing this option.

Proximity. If you don’t live in close proximity to the other parent, it can make splitting living arrangements difficult and stressful for children.

Parental capacity. Are both parents able to accommodate caring for their child on a regular basis? For example, if one parent travels a lot for work, these arrangements may not be appropriate.

Specific needs. If a child has specific medical requirements or other needs, traveling between residences regularly may be inappropriate.

Full custody

Often, full custody will be granted to one parent. This can be the best arrangement for various reasons.

Preference. One parent may not be inclined to have the responsibility of having their child live with them.

Availability. If a parent cannot be present to take on parental duties, then the other parent having full custody would be best.

Historical roles. One parent may have performed the role of primary caregiver during the relationship. Maintaining this continuity with full custody may be best for the child.

Family violence

One major determining factor in full custody arrangements is the existence of physical or psychological harm. The likelihood of a child experiencing or being exposed to child abuse is a primary consideration when deciding on parental responsibilities in the Family Law Act.

Conclusion

Many divorces involve a child under the age of 18. In these circumstances, the child’s parents must consider how to organise their parenting responsibilities. You can document the arrangement informally or through court orders depending on the situation. Custody arrangements cover the decision-making responsibilities of each parent, as well as where the child will live. Living arrangements can be shared by the parents, or be given solely to one parent.

If you’re organising child custody arrangements for your child, it’s important to seek legal advice. Contact our office for a free consultation.

]]> How Long Does Court Take for Child Custody? (What Parents Should Expect) https://andrewsfamilylawyers.com.au/how-long-does-court-take-for-child-custody/ Mon, 10 Jun 2024 04:17:36 +0000 https://andrewsfamilylawyers.com.au/?p=5966

Child custody cases are some of the most sensitive in family law. When organising parenting arrangements, the Family Law Act requires the Family Court to prioritise the child’s best interests. Parties often wonder how long does court take for child custody as they aim to settle parenting matters as quickly as possible.

This article will explore the timeframe you can expect to face and the complications that can arise.

Child custody timeline

The easiest and quickest way to make parenting arrangements is through a consent order. Parenting consent orders provide co-parents a way to organise parental responsibility cooperatively.

With a properly completed application, the Court will usually process the application within around six to eight weeks.

Here’s the basic timeline to follow.

Consent orders

Seek legal advice

It’s not necessary to obtain legal advice before applying for consent orders. A family lawyer will smooth the application process, though.

Preparing and filing documentation

There are two essential documents you must file to get a parenting consent order. The first is a Notice of child abuse, family violence or risk. This form is part of the Court’s responsibility to report to authorities. It covers the following:

  • Allegations of child abuse or a risk of child abuse.

  • Allegations of family violence or a risk of family violence that amount to abuse of a child.

The other document is the application itself. The application will cover how major long-term decisions will be made regarding crucial parts of your child’s life. The application can then be filed online through the Commonwealth Courts Portal.

For more information on how to prepare a consent order, visit and read our blog titled “How to Prepare for a Consent Order? (Important Steps for a Smooth Process)”

Preparing for the requirements for a consent order

Discover: Understanding Child Custody Laws in Australia

Parenting orders

Some parents fall into custody battles because one or both parents can’t accept proposed custody arrangements. This means that court proceedings will settle the matter.

The Family Law Court will add delays to the process. It’s vital to have professional support.

Pre-action procedures

Parties seeking to begin a court action must make a genuine attempt to resolve the matter amicably. This involves inviting the other party to participate in alternative dispute resolution, such as mediation or counselling.

If these actions are completed without success, you will receive a Genuine Steps Certificate to recognise you have satisfied the pre-action requirement.

Some applications are exempt from this requirement. Such applications include:

  • Urgent applications.

  • Applications that include allegations of family violence.

  • Applications that would be prejudiced by pre-action procedures.

Initiating application

The applicant must file an initiating application to begin the action for parenting orders. You may apply for interim orders simultaneously if you feel it’s necessary. Interim orders put a temporary order in place while the Court considers the final orders. If you’re applying for interim orders, you must attach an affidavit stating their reasons.

The respondent may file a response to the application, setting out their case. The response must be served on the applicant through ordinary service and any independent children’s lawyers appointed.

application in family law court

First court hearing

The first court date is usually set for six to twelve weeks after filing the initiating application. The Court will make procedural orders regarding the next step in the proceedings and what actions the parties must take.

Interim hearing

A date will be set to decide on an interim order if one party applied for one. The Court will consider the affidavits submitted by the parties and the oral submissions of their family lawyers.

Child dispute conference

The parties will meet with a court-appointed family consultant to try and reach an agreement. After the conference, the consultant will prepare a report summarising the issues and their recommendations for proceeding. For example, they may recommend the Court appoint an independent children’s lawyer to represent the child.

A copy of the report will be provided to each party’s lawyer, the judge and the parties.

Final hearing

A final hearing will be set if the parties still can’t agree. The Court endeavours to hold the final hearing no later than 12 months from the initial application. This hearing may take between one and three days. The judge will read affidavits provided by each party and their witnesses. The parties will give an oral address, and each lawyer will have a cross-examination.

The judge may make a decision immediately or within three months. The process can last approximately 18 months or even two years.

final court hearing

Conclusion

With the child’s best interests in mind, parties should take every opportunity to make a parenting agreement. The Court can usually organise consent orders in six to eight weeks. However, disputed cases can run on for months or even years.

We offer free consultations if you need help with a consent order

Book a FREE Consultation

Related Articles

]]> Know the Pros and Cons of Binding Child Support Agreements (Guide for Parents) https://andrewsfamilylawyers.com.au/binding-child-support-agreement/ Fri, 17 May 2024 06:59:07 +0000 https://andrewsfamilylawyers.com.au/?p=5538

When parents get a divorce, it’s best that they consider whether child support is necessary. You need to carefully think about custody arrangements for the best interests of the child. Sometimes, parents will share parenting responsibilities equally.

However, usually, one parent will become the primary caregiver. If that parent isn’t as financially well off as their former partner, the Court may require the former partner to pay child support. There are different ways to organise periodic child support payments.

In this article, we’ll look at binding child support agreements and analyse their advantages and disadvantages relative to other options.

Key takeaways

  • A binding child support agreement provides financial support for a parent with parenting responsibilities.

  • Parties must agree to the terms, meet a minimum threshold of care and receive independent legal advice.

  • Percentage of care comes in various levels depending on how many nights the child spends with you.

  • You may need to provide proof of your percentage of care to Services Australia.

  • Advantages include flexibility in how the agreement is drafted, security in the agreement remaining in place and sound legal advice.

  • Disadvantages include being potentially costly, locking parents into an arrangement for a significant amount of time and potential issues caused by poor drafting.

What is a binding child support agreement?

A binding child support agreement is a way for parents to arrange support payments for the benefit of their children. There are certain criteria the parties must satisfy before the agreement will be considered legally binding.

The support can be paid as a lump sum or ongoing payment. If you opt for a lump sum, you’ll need to get an assessment from Service Australia. They will use an 8-step formula to determine the amount payable.Father holding a child's hand

Legal requirements

Here are the requirements to make a binding child support agreement legally enforceable.

Agreement

Both parties must agree to the amount of child support payable to the receiving parent. The agreement can’t be made through force or undue influence.

Care percentage

In order to receive support payments, you must meet a minimum threshold in the amount of care you provide. Services Australia is Australia’s child support agency. According to them, a parent must provide at least 35% of care before they can get child support.

Legal advice

Parties can’t enter an agreement alone. Before signing anything, each party will get independent legal advice from a child support lawyer. The lawyer ensures that their client knows what their rights and obligations will be under the terms of the agreement.

The lawyer’s advice will also ensure the parties involved understand the agreement’s effects and how its terms impact their interests. The lawyer will provide a certificate stating that the legal advice was given.

Learn More: What is Child Support in Australia?

Determining the percentage of care

Services Australia sorts the percentage of care into five levels.

Below regular care

0% to 14% of care. This works out to:

  • 0 – 51 nights per year.

  • 0 – 2 nights per fortnight.

At this level, the paying parent isn’t eligible for tax benefits like the Family Tax Benefit (FTB).

Regular care

14% – 35% of care. This means either:

  • 52 – 127 nights per year.

  • 2 – 4 nights per fortnight.

A paying parent won’t get FTB but may be able to receive other concessions.

Shared care

35% – 65% of care. This amounts to:

  • 128 – 237 nights per year.

  • 5 – 9 nights per fortnight.

The parties may be able to share FTB.

Primary care

35% – 86% of care. This means:

  • 238 – 313 nights per year.

  • 10 – 12 nights per fortnight.

Above primary care

Any care percentage above 86%. At this level, the party can receive 100% of any FTB.

Mother and a daughter sit at a table, engaged in a thoughtful conversation

Proof of care

If you can’t agree on what percentage of care each parent has, Services Australia can help you work it out. They will likely ask for evidence to assess your care percentage. Evidence may include:

  • A calendar or diary that sets out what days you are caring for the child.

  • A court order or a parenting plan that shows what percentage of care you have. You’ll need to provide evidence that you are meeting your obligations.

  • Documentation that shows when your child is in daycare or other regular activities.

  • Records that show when the child has attended health care or other services.

  • Records showing when a child has travelled. This may include airline bookings or passports that contain travel dates.

  • Statements from people familiar with your situation who can attest to your percentage of care.

If you need help with the Binding Child Support Agreement, Andrews Family Lawyers can help.

Check Our Services Here

Advantages

There are various reasons why a binding child support agreement might suit your circumstances over a limited child support agreement.

Flexibility

Unless you’re organising a lump sum payment, you don’t need to get a child support assessment from Services Australia. This gives you some flexibility about how you work out what should be paid. You can use a formula of your choosing and make whatever considerations you deem appropriate.

You can also decide that the paying parent will cover certain expenses. For example, they may pay for private school fees or holidays. This can be important if a child has extensive medical needs. We all know how expensive healthcare can be. A binding agreement can ensure the paying parent covers those costs.

Secure

It’s not easy to put a binding child support agreement aside. They can’t be cancelled on the whim of either parent. Once you formalise the agreement, you can ensure the financial support will remain in place.

There may be legitimate reasons to want to terminate the agreement. However, both parents must agree to the termination.

Legal advice

Both parties must receive independent legal advice. This ensures that you enter the agreement with full knowledge about how it will affect you. A good child support lawyer will protect your interests and work to ensure that the agreement properly reflects your child’s needs.

father and his small daughter having fun together at home

Disadvantages

Binding child support agreements are right for everyone. While there are reasons you may want to create one, there are also reasons it might not work for you.

Potentially costly

Since both parties must agree to the termination of the agreement, costly disputes can arise. The paying parent may not be able to meet their obligations anymore and seek to end the agreement. However, if the receiving parent doesn’t agree, the matter may end up going to Family Court to settle the issue.

If the parents do agree to end the agreement, they must enter a termination agreement. The parties will need to seek legal advice from a family lawyer again. This incurs additional costs.

Significant commitment

A binding child support agreement ends when a child turns 18. This could mean a paying parent is locked into providing financial support for a long time if the agreement began when the child was very young. A lot can happen in that time that affects a parent’s ability to continue making payments.

If you’re not absolutely confident of your capacity to meet your obligations for the entirety of the agreement, a binding agreement may not be the best option.

Poorly drafted

It’s possible that a binding agreement won’t be drafted in a way that accurately captures your circumstances. You may not make adequate provisions for potentially significant events. For example, the paying parent could suffer an injury that leads to a disability or lose their job.

This will affect their financial stability and, unless the agreement covers such events, will make the agreement difficult to continue.

sad girl with parents arguing behind

Conclusion

Binding child support agreements are one way parents can organise support for their children after a divorce. Binding agreements are flexible and stable. With good legal advice, you can be confident that the agreement will adequately reflect what’s best for your family.

However, they can be expensive. Disputes or unforeseen circumstances sometimes crop up. These situations can make binding agreements more complicated. They’re also a big commitment that can last for many years.

You may not be sure if a binding child support agreement is right for you. That’s natural as it’s a big decision.

If you want expert advice, contact our office today. Our team will discuss with you the best option for you and your children.

Book a FREE Consultation
]]> What is Child Support in Australia? (Parents Guide in 2024) https://andrewsfamilylawyers.com.au/what-is-child-support-in-australia/ Tue, 30 Apr 2024 07:03:42 +0000 https://staging.raw.com.au/?p=1160

Going through a separation or divorce is often made more complicated when there are children involved. While couples may want to finalise financial and property settlement as quickly as possible post-separation, when it comes to custody of children and child support, it’s essential to consider what is best for the child in the long run.

In Australia, both parents are legally required to support their child under the Child Support Scheme, so regardless of where the child lives, each parent has a financial obligation to support the child until they turn 18.

This article will give you an overview of child support in Australia and how it may work in your family.

Key takeaways

  1. Child support is financial support paid by one parent to the other to help with the costs of raising a child after separation or divorce.
  2. Parents can either agree on child support payments privately or through a binding agreement, or have the Department of Human Services (DHS) assess and calculate the amount
  3. The amount of child support is based on factors like each parent’s income, the number of children, the children’s ages, and the time children spend with each parent.
  4. Child support covers expenses related to the child’s needs, including food, housing, medical care, education, and extracurricular activities.
  5. Parents who disagree with the DHS’s child support assessment can request a review or appeal the decision through legal channels.

Understanding Child Support in Australia

Under the Child Support Assessment Act, child support means ongoing financial support provided to a child after their parents have separated or divorced. It is designed to help cover the expenses of raising a child, such as food, clothing, medical costs, school fees, housing, and more.

Child support can be commonly paid from one parent to the other in regular payments, but it can also be paid as lump sum payments or by paying for specific costs, such as school fees.

In Australia, the Department of Human Services’ Child Support Agency governs most of Australia’s child support agreements, although child support can be handled in two ways. First, you and your ex-partner can privately agree to a binding child support agreement.

You can also apply to the Department of Human Services (DHS), which makes an assessment and calculates the amount payable.

DHS

For many families, coming to an amicable agreement without involving the DHS is usually less stressful and can be handled between you and your ex-partner or with the help of a family lawyer. In some circumstances, however, this isn’t possible, and the DHS can decide how much is appropriate for whom to pay.

What does child support cover exactly?

There are no set rules under Australian law on what child support can and cannot be used for, aside from the rule that it must be used for the child’s benefit. Parents cannot use the money to pay for goods and services that benefit them.

It is designed to cover the fixed costs of raising a child that are regularly shared between parents, such as food, shelter, clothing, school fees, school uniforms, extra-curricular activities such as sports, and medical fees.

While child support is usually thought of as regular payments, it can be paid in several ways, such as covering the cost of school fees, school uniforms, medical expenses, or extra-curricular activities. It aims to support the child financially and give them a reasonable equal opportunity.

Can I apply for child support?

If you are a parent, caring for your child at least part of the time, and are not living with the child’s other parent, you can apply for child support.

applying for child support

In some instances, if you are caring for a child that is not your own, you can also apply for child support. Speak to our expert family lawyers for an obligation-free consultation on your situation and rights.

Can parents make their own arrangements for child support?

Yes, you and your ex-partner can make your own arrangements for financially supporting your children without applying for an assessment from the DHS. In fact, this is usually the preferred way of coming to an agreement that is suitable for all parties.

Even if you have an amicable relationship with your ex-partner, it is always advised to seek independent legal advice and put your child support agreement in writing. This ensures clarity on what is required of each person and avoids conflict if one person tries to back out of their part of the agreement.

You can also register your agreement with the DHS.

Child Support Cost

How much does child support cost?

The child support amount of support payable varies from family to family and is dependent on a number of factors, including the income of each parent and the amount of time the child is in each parent’s care.

The child support cost assumes the obligation of each parent to support their child financially and is, in principle, based on the percentage of time each parent cares for the child.

Mother assisting her young daughter with homework

For example, if you and your ex-partner share joint custody of your children 50/50, expenses are more likely equal to shared parental responsibility. If one of you only cares for the children on weekends, you may be required to pay more child support.

Other factors come into play, such as school fees, medical bills or other expenses, which can vary greatly between families. To estimate the specific amount, consider using a child support calculator to get a clearer idea of the financial responsibilities involved.

How is child support cost calculated in Australia?

When managed by the Department of Human Services, an administrative assessment of your situation is carried out to determine which parent should pay child support and how much. This child support assessment is done using a complicated formula that takes into account:

  • The income available to each parent minus the cost required to ‘self-support’
  • The number of dependent children a parent needs to support and how old they each are
  • The amount of time the child spends with each parent
  • The percentage of the child’s costs each parent covers
  • The average cost of raising a child in Australia
  • Costs specific to this child

This child support formula determines an amount suitable for each child, payable by one parent, usually to the other.

Basic-child-support-formula-Child-support-assessment-Services-Australia
Source: Services Australia – Basic Child Support Formula

How is child support paid?

Usually, parents make their own arrangements for how and when child support payments are made. If this is the case, keeping a record of payments for future reference is important.

If you and your ex-partner cannot reach an agreement, or if the parent responsible for paying support refuses, the DHS can collect payment and redistribute it to the other parent.

The DHS can also mandate that their employer deducts the amount from their wages to make the payment.

If you are entitled to be paid child support from your ex-partner but are refusing, our experienced family lawyers can assist you in taking action to obtain payment.

To estimate the percentage of care used to calculate child support payments, kindly check this care estimator.

What is the maximum child support payable in Australia?

There is a cap on the maximum child support payable when the application is made through the DHS.

This is calculated using the combined income of each parent, up to 2.5 times the annual equivalent of the Male Average Total Weekly Earnings, and the cost of children table, both of which can be found on the DHS Child Support Guide website.

If you and your ex-partner choose to make an agreement privately, this amount may change.

Other Common Questions About Child Support

What if I am unhappy with the outcome of the administrative assessment?

In some cases, you may feel the child support assessments made by the Department of Human Services are unfair to one parent. You may feel you are being asked to pay too much, or the payments your ex-partner is asked to provide are too little and you won’t be able to support your child financially.

In some cases, the assessment may become unfair if one of you loses your job, one of you has greatly minimised your taxable income for the purpose of the assessment, or if there are significant costs such as private school fees or medical fees for an unwell child.

If this happens, you can apply for your assessment to be reevaluated by the DHS via an internal review process or apply to the Social Security Appeal Tribunal for a review. In some circumstances, you may be able to apply to court.

Suppose you and your ex-partner made a private child support agreement. In that case, our experienced family lawyers can also renegotiate to come to a new arrangement that better suits you and your ex-partner.

Woman upset over disappointing results from administrative assessment

At what age does child support stop?

Child Support typically ends when the child turns 18. If the child is in their final year of high school when they turn 18, child support payments must continue until the end of that school year.

There are some cases in which child support payments continue after the child turns 18, which is called Child Maintenance. Child maintenance is payable if the child is studying secondary or tertiary education, which includes a university degree or an apprenticeship, if the child has a physical or mental disability, or if the child is seriously ill.

Child support payments don’t usually roll over into maintenance; an application must be made before the child turns 18 and can be made by either the parent or the child themselves. The amount of child maintenance payable depends on several factors, including:

  1. The necessary expenses of the child.
  2. The capacity the parent has to pay for these expenses.
  3. The amount the parent requires to support themselves and any other dependents they have.

If a child under 18 gets married or enters into a de facto relationship, they are also no longer eligible for child support.

Which children are eligible for child support?

Child support is available to all children living in Australia whose parents are not together.

In order to be eligible for child support, a child must:

  1. Be under 18 years of age, or 18 and in their final year of high school.
  2. Not be married or in a de facto relationship.
  3. Reside in Australia or a foreign jurisdiction with which Australia has a child support agreement.

If a child moves abroad from Australia or is no longer an Australian citizen and there is no international maintenance agreement applicable, child support payments cease to be paid under Australian law.

happy mother with her daughter

Does a new partner affect child support?

The only people responsible for financially supporting a child are the child’s parents, and the amount of child support payable is calculated on the income of the child’s parents only. If one parent enters a new relationship or gets remarried, the amount they are required to pay does not change, unless the amount of time they care for the child changes.

If you or your ex-partner have a child with a new partner, you also need to alert the DHS, as this may impact the amount of child support payable.

Conclusion

Child support in Australia is a legal obligation for parents to provide financial support for their children until they reach the age of 18, regardless of the custody arrangement. The purpose of this support is to cover necessary expenses such as food, housing, education, and medical care, to ensure that children can maintain a reasonable standard of living after separation or divorce.

Parents can either agree on child support through a binding agreement or have it assessed by the Department of Human Services, which calculates payments based on various factors such as income and time spent with the child.

If you need help with your child support obligations, Andrews Family Lawyers can provide personalised guidance and support to make the process easier for you.

If you need assistance with family law matters, Andrews Family Lawyers can help.

Book a FREE Consultation

Related Articles

]]> Best Practices When Applying for Full Custody of a Child (Parents Guide) https://andrewsfamilylawyers.com.au/applying-for-full-child-custody/ Tue, 30 Apr 2024 06:25:10 +0000 https://andrewsfamilylawyers.com.au/?p=3515

Child custody is one of the most critical factors in family law. Custody arrangements can incorporate one or both parents. The Court prefers both parents to have an equal say in a child’s life.

However, there are situations where it may be in the child’s best interest to provide one parent with all the duties of parental responsibility, known as full child custody. This brings us to applying for full custody of a child, which involves demonstrating that sole parental responsibility is the best option for the child’s welfare. 

Key takeaways

  1. The Family Court prefers parents maintain equal shared parental responsibility.

  2. Both parents will typically receive equal or substantial time with their children.

  3. Sole parental rights give one party complete control of a child’s life decisions.

  4. There are several reasons why the Court may grant sole parental responsibility;

    • Evidence of family violence or abuse;

    • Substance abuse or mental health issues;

    • Neglect or disinterest.

  5. Alternative dispute resolution is a crucial step in parenting arrangements. Before seeking parenting orders for sole custody, mediation can help create better opportunities for the children involved.

  6. If mediation fails, there’s a legal process for applying for sole parenting responsibility.

Equal Shared Parental Responsibility in the Family Law Act

The Family Law Act 1975 assumes that equal parental responsibility in parenting arrangements is in the child’s best interests. This principle states that both parents will have an equal say in major life decisions in the child’s life. This may include decisions about education, health and religious instruction. Equal parental responsibility doesn’t imply that each parent will have equal time with the child.

When crafting a parenting court order, the Family Court will opt for equal or substantial and significant time for each parent. Substantial time means that while the child may live with one parent, the other parent will spend time with them on:

  • Weekdays;

  • Weekends;

  • Holidays;

  • Events of special importance to the child, such as birthdays.

Photo of happy family

Sole parental responsibility

Sole parental responsibility gives one parent complete discretion to make decisions for a child. They can decide on education, health matters and religion. They may also determine the child’s living arrangements. Sole responsibility doesn’t necessarily mean the other parent has no visitation rights. Contact with both parents is still encouraged by the law.

Learn More: Discover The Child Custody Laws in Australia

Reasons for sole responsibility

Evidence of Family Violence or Abuse

Suppose there’s credible evidence that a parent’s involvement would risk the child’s safety, welfare, or psychological well-being due to abusive behaviour. In that case, the Court may decide that sole parental responsibility to the other parent is necessary.

Key considerations include:

  1. Physical, emotional, or sexual abuse and its impact on the child.

  2.  Credible evidence supporting the claims of abuse.

  3. Evaluating the potential future risk to the child.

  4. Depending on age and maturity, the child’s views may be considered.

  5. Overall parenting capacity, history of family violence, and any protective measures in place.

Substance Abuse or Mental Health Issues

Evidence of substance abuse or mental health issues can justify the Court granting sole parental responsibility. This is particularly true if these issues impact the parent’s ability to safely and effectively care for the child.

Key considerations include:

  1. How substance abuse or mental health issues affect the parent’s capacity to provide safe, stable, and nurturing care.

  2.  Assessment of any immediate or long-term risks to the child’s physical and emotional well-being.

  3. Whether the parent with issues is seeking treatment and how effectively the condition is being managed.

  4. The extent and duration of the issues and any documented evidence or professional assessments.

  5. The ability to meet the child’s needs includes emotional support, stability, and guidance.

Neglect or Disinterest

Suppose a parent demonstrates a lack of interest or neglects their parenting responsibilities. In that case, it may lead the Court to determine that sole parental responsibility to the other parent is in the child’s best interest.

Key considerations include:

  1. Neglect or disinterest that compromises the child’s safety, health, or emotional development.

  2. The child’s need for consistent care and a stable environment.

  3. The extent of each parent’s involvement in the child’s life and willingness to take on parenting responsibilities.

  4. Past behaviour and the level of commitment each parent shows towards parenting duties.

  5. How the parent’s disinterest or neglect has affected the child’s well-being and development.

non explicit child abuse (1)

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) involves several key components, especially when trying to avoid sole parental responsibility:

  1. Family Dispute Resolution (FDR)
    FDR involves a neutral third-party mediator helping parents negotiate parenting arrangements.

  2. Mediation Session
    The mediator facilitates structured discussions where parents can express their views and concerns.

  3. Communication Improvement
    ADR aims to improve communication between parents, which is crucial for effective co-parenting.

  4. Developing a Parenting Plan
    Parents work towards a mutually agreeable parenting plan detailing living arrangements, decision-making, and child-rearing aspects.

  5. Legal Advice
    While ADR is less formal than Court, obtaining legal advice can help parents understand their rights and options.

  6. Child Inclusive Practices
    Some ADR processes involve professionals specialising in understanding and articulating the child’s perspective.

  7. Follow-Up Sessions
    Some ADR processes may include follow-up sessions to adjust the parenting plan as needed.

Benefits

Seeking ADR methods in Australian family law offers several benefits. A family dispute resolution conference allows one to avoid the need for sole parental responsibility.

  1. Reduces Conflict
    ADR fosters cooperation, reducing conflict and stress for both parents and children.

  2. Child’s Best Interests
    Encourages decisions focused on the child’s best interests rather than adversarial court outcomes.

  3. Saves Time and Money
    Generally, it is faster and less expensive than court proceedings.

  4. Improves Communication
    It helps parents develop better communication skills for future co-parenting.

  5. More Control
    Parents have more control over outcomes, unlike court-imposed decisions.

  6. Confidentiality
    ADR processes are private, unlike court cases, which can become public record.

  7. Flexibility
    Solutions can be more creative and tailored to the family’s unique needs.

  8. Preserves Relationships
    It can help maintain amicable relationships, which is essential for effective co-parenting.

  9. Emotional Well-being. A less adversarial nature reduces emotional strain on all parties involved.

  10. Compliance
    Agreements reached mutually are more likely to be adhered to than court orders.

AFL - couple in law court

Applying for Sole Custody

  1. First, seek legal advice to understand your rights and the process.

  2.  Before Court, you must attempt FDR unless exemptions like family violence apply.

  3. If FDR fails or is exempt, you’ll receive a certificate to proceed with court action.

  4. Prepare and file an application with the Federal Circuit and Family Court of Australia.

  5. Include detailed reasons for seeking sole responsibility, focusing on the child’s best interests.

  6. Legally deliver court documents to the other parent, allowing them to respond.

  7. If immediate decisions are needed, apply for interim orders.

  8. The Court may order a family report by a consultant assessing the family situation.

  9. Present your court case with evidence supporting why sole responsibility is in the child’s best interest.

  10. Follow the Court’s final orders.

a woman talking to a lawyer for a full child custody

Conclusion

The Family Law Act 1975 emphasises equal shared parental responsibility. It values both parents’ involvement in major decisions in the child’s life. However, circumstances like abuse, substance abuse, mental health issues, neglect, or disinterest can lead to one parent applying for full custody of a child. This step involves seeking sole parental responsibility to prioritise the child’s safety and wellbeing.

Alternative dispute resolution offers a less adversarial approach, fostering cooperation and potentially avoiding the need for sole custody. Any court decision or agreement ultimately serves the child’s best interests. This ensures their stability and healthy development.

If you need assistance with child custody, Andrews Family Lawyers can help.

Book a FREE Consultation

Related Articles

]]> Understanding Child Custody Laws in Australia (Ensure the Best for Your Child) https://andrewsfamilylawyers.com.au/child-custody-laws-in-australia/ Mon, 15 Apr 2024 15:00:07 +0000 https://staging.raw.com.au/?p=1150

Understanding child custody laws is crucial as the welfare of children and who has custody is one of the most significant decisions to be made.

When parents of a child under the age of 18 separate, they both retain responsibility for the child’s welfare and financial support, irrespective of their relationship status.

Child custody arrangements should be designed with the child’s best interests. If you and your child’s other parent cannot agree, the court will consider several factors when granting child custody and child support.

This article outlines what you need to know when deciding about child custody.

Child Custody Laws in Australia

Child custody law in Australia falls under the Family Law Act 1975. The Act clearly outlines that child custody considers the child’s best interests and that parents have responsibilities to their child, not rights.

As a parent, you must prioritise your child’s interests over your own. The Act is also gender-neutral, meaning there is no presumption about parenting roles.

Child custody is referred to by law as ‘parental responsibility’. The statutory presumption is that both parents will share equal responsibility in caring for the child.

This means both parents have a role in making decisions that impact the long-term situation for the child, such as where they will live, what school they attend, religious upbringing and major medical decisions.

Shared responsibility will look different in each family situation, and the time spent with each parent and the role each plays in the child’s life are very personal, individual decisions. The court may disregard the presumption of shared responsibility if it is not in the child’s best interests.

happy mother with her daughter

Considerations of the Court When Determining Child Custody

There are two main things the court considers when deciding who is awarded custody of a child:

  1. a child’s right to benefit from both of their parents having meaningful involvement in their life; and
  2. the need to protect the child from being exposed to harm, abuse or neglect.

This means if domestic violence or any form of abuse or neglect are present, the court is most concerned with protecting the child, and will therefore be unlikely to consider shared custody in the child’s best interests.

Once the main considerations are addressed, the court will consider a number of other factors to determine what is in the best interests of the child. These may include:

  • views expressed by the child;
  • the relationship the child has with each parent or guardian;
  • the willingness of each parent to encourage and help facilitate the child’s relationship with the other parent;
  • the parents’ ability to fulfil the child’s needs.

A court may determine it is in the child’s best interests to remove parental responsibility from one or both parents, and it may also assign parental responsibility to another legal guardian.

court hammer and books

Is it necessary to go to court to settle a child custody dispute?

No, if you and your ex partner can reach an agreement on who has custody of your child, what time will be spent with the child and any child support required, you do not have to go to court.

You can make a parenting agreement with the help of an experienced family lawyer, or you can obtain ‘consent orders’ for parenting orders which a court approves.

What if the other parent does not act in accordance with the court´s decision?

You may need to apply for one if you originally made arrangements outside of court. If you have a court order, our child custody lawyers can advise on whether you should take legal action or look at changing the order to satisfy the new needs.

Important: 3 Reasons Why You Should Hire a Family Lawyer

Applying For Full Custody of a Child in Australia

The law presumes parental responsibility should be shared equally unless it is found this is not in the child’s best interests, and there are some cases where full custody is granted to one parent or guardian.

In some cases, a parent may wish to get full custody of a child because they disagree with their ex partner or are unable to have an amicable relationship with them, and they are afraid they might lose custody altogether.

AFL-mother-taking-care-of-her-autistic-son-at-home

Firstly, it’s important to understand that this is rarely how parenting arrangements work unless extraordinarily unusual circumstances exist.

If the court hears your case, the court will consider each parent’s behaviour toward the child and each other, so unless there is violence, abuse or similar present, in most cases, both parents would be granted shared custody.

Secondly, shared custody does not equate to shared time spent with your child, so it is possible and quite common to have shared custody of a child who lives with one parent 100% of the time.

Does equal custody mean equal time?

Under Australian Law, ‘access’ to your child is referred to as to ‘spend time’ with your child.
Shared parental responsibility – ie. child custody – differs from equal time spent.

This means that while you may share the responsibility of child support 50/50, this doesn’t automatically mean you share the time spent with your child 50/50.

You and your child’s other parent will spend equal time with your child only if:

  • you both agree this works best for your child and each of you; or
  • the court finds that equal time is in the best interest of the child and is the best arrangement for your family.

In most cases it is best if both parents can discuss the needs and what is in the best interest of their child in terms of where the child will live and how they will spend time with each parent.

Detailed blog here: How to Apply For Full Child Custody in Australia?

Common Questions About Child Custody

Is child custody usually split 50/50?

Under Australian Family Law, every parent is responsible for their child’s wellbeing and financial support. This applies in all situations, regardless of whether the parents are married, in a relationship, separated, never in a relationship, or otherwise.

This allows each parent to decide about their child, together or individually. The Family Law Act 1975 presumes that custody, meaning responsibility for your child’s welfare and financial support, is split equally between both parents.

This means that you and your child’s other parent would share equal responsibility for and play a role in making decisions about your child’s life and future, such as where they will live, what school they will attend, or any religious observance.

This presumption only applies if this is in the child’s best interest. That means that if the court finds it is in the child’s best interest that one parent makes these decisions only, custody would likely not be split 50/50.

This usually occurs in circumstances where there is domestic violence, abuse, or neglect, and therefore the court will rule that the child’s welfare may be compromised.

child suffering from abuse by parents fighting at home

How are the financial costs distributed if one parent is given full custody?

As is outlined in our Guide to Child Support in Australia, regardless of who has custody of a child, both parents have a financial responsibility to support the wellbeing and future of their child. So when one parent is granted full custody, the other parent is still required to support their child financially.

There is no one-size-fits-all for how child support payments work, and they can be paid in several ways, including regular payments or one parent being responsible for certain costs such as school fees.

Regardless of whether you think you can agree on what your ex-partner will pay or you may need to go to court, you should seek legal advice from an experienced family lawyer to ensure you receive sufficient financial support for your child’s welfare.

Can an appeal be made if the determined arrangements are not working?

If you have made arrangements with your ex-partner outside of the court, you can change them through negotiation. It’s always advisable to seek legal advice even if you have an amicable relationship with your ex-partner, especially if you need mediation or assistance negotiating new arrangements.

If you have a court order, you must satisfy the court that there has been a significant change in circumstances. 

Related: What is Child Support in Australia?

A Child Custody Case Study

Rebuttal of presumption for shared parental responsibility

A recent Family Court case provided a rebuttal to the presumption of shared parental responsibility. It was a mother and father whose relationship had broken down so far that they could not reach joint decisions relating to major long-term issues in respect of their children.

The court found that it was not in the children’s best interests for the parents to share equal parental responsibility.

In this case, sole parental responsibility was given to the father, whom the children were to live with. The father was to notify the mother before making any major long-term decisions for the children, but his sole responsibility was to make them.

father and his small daughter having fun together at home

Conclusion

It’s important to keep in mind that child custody laws exist to serve the best interests of the child. When parents separate, they still share the responsibility for their children’s wellbeing and financial support, regardless of their marital or relationship status.

If parents can’t agree on custody arrangements, the courts can step in to make a decision based on various factors. The child’s safety and welfare are the top priority. For parents who can agree independently, legal avenues like consent orders can formalise the arrangement without going to court.

However, legal action may be necessary if disagreements persist or if the agreed terms are not followed.

If you need assistance with family law matters, Andrews Family Lawyers can help.

Book a FREE Consultation

Related Articles

]]>