Family Law: Children’s Issues after Separation

It’s important to enter into discussions with your former spouse about arrangements for children following separation, even if it’s painful to do so.  

There are many matters regarding children that need to be considered, including living arrangements, any concerns around custody and contact hours for each parent, and payment of child support. To manage these issues, it might be beneficial to both sides to have a family lawyer assist you through the process.

In many cases, these types of arrangements are put into a more formal context using two particular documents:

• Parenting Plan – explains how the children will be cared for; and
• Child Support Agreement – discusses costs and particulars regarding meeting these obligations.

Alternatively, parenting arrangements can be incorporated into Consent Orders to be filed in the Family Court.

While these documents are typically enforceable by each parent, they can be modified and adjusted if the parents agree to do so. While it is not a requirement under the law to have a family lawyer formalise a Parenting Plan, it is no doubt in the best interest of the child to have something in writing; it will help provide certainty and, as a natural consequence, stability.

Pursuant to the law in Australia, each parent shares the same entitlements and duties in terms of responsibility for their children and children are seen as having a right at law to know and be cared for by both parents.

Generally, you are not required by law to register your Parenting Plan. If, however, you have made an application for Court Orders, a copy of the proposed plan should be incorporated into proposed Consent Orders to be filed in the proceedings.

Paying child support

Under Australian law, there is a prescribed formula that is applied to work out the appropriate amount that is payable by way of Child Support.

Sometimes, however, the prescribed amount is not applicable, for example with respect to a special needs child, or a child who attends Private School. This is regarded as a Variation to the assessed Child Support amount.

For those parents who do not wish to pay child support pursuant to the assessed amount, for whatever reason, a Binding Child Support Agreement may be entered into.

If you’re proposing to enter into such an agreement, independent legal advice should first be obtained from a family lawyer.

Registration of Child Support Agreements occurs through the Family Court. This Agreement is either lodged by itself, or in conjunction with the Separation Agreement. If you wish to change the contents of the Agreement, you can do so by registering these changes with the Court.

How to manage disagreement amongst parents

It is not uncommon that parents will disagree about how their children are to be cared for following separation. If this happens, the Family Dispute Resolution Service can assist with mediating the matter. The Court may provide another option for resolving the dispute if mediation is inappropriate in the circumstances.

If the parents cannot reach an agreement after the mediation process, then the matter may end up in Court. This is a very expensive and stressful exercise. 

Conclusion

For legal assistance in settling family law disputes, it is important that you seek the advice of a family lawyer. When it comes to children and their best interests following a separation, these matters should always be settled outside of court wherever possible.