General
Under Family Law in Australia, a ‘de facto’ relationship requires that you and your partner, whether they be of the same or opposite sex, were a couple living together on a genuine domestic basis.
Basically, if you want to be able to claim for a property settlement or spouse maintenance, your de facto relationship must meet at least one of the following criteria:
- Your de facto relationship lasted at least 2 years;
- There was a child born of the de facto relationship;
- You registered your de facto relationship; or
- The contributions made by one of you to the de facto relationship were significant and a failure to make property settlement or spouse maintenance orders would result in serious injustice to that person.
If your de facto relationship meets at least one of these criteria then under Family Law, you will be treated in almost the exact same way as a married couple. The most important difference however, is that after you separate, you only have 2 years in which to approach the Court to either formalise your property settlement or commence property proceedings against you former de facto partner.
And just to be crystal clear – if you were married or related, you were not in a de facto relationship!
How long is a piece of string! Many people want their day in court, but this is an emotionally and financially draining way to settle matters when your relationship breaks down.
Family lawyers generally charge between $300/hr and $500/hr depending on their experience. Some lawyers charge well above this. Most people will also use a barrister to appear at court hearings. A barrister costs between $2,500 and $5,000 a day with senior barristers costing around $10,000 a day.
In Family Law around 70% of court matters settle in the early stages of the proceedings following mediation or a court-run conciliation conference, which is great! However, getting to this stage of proceedings usually occurs 3-6 months after proceedings have started and it generally costs around $20,000 to $30,000 to get to this stage.
If you can’t settle your matter and it goes to a final hearing for a judge decides your property or parenting matter, you are looking at your proceedings taking 2 to 3 years and cost you on average between $100,000 and $150,000.
The quickest way to resolving either parenting or property settlement disputes is to reach an agreement yourselves. Once you have an agreement and file your application to the court to have your agreement made into final orders, it generally takes about 4 to 6 weeks for a Court to make the orders.
If you can’t reach agreement yourselves, you should consider attending dispute resolution or mediation to help you reach agreement.
You can’t force your partner to come to an agreement. If you have tried family dispute resolution and/or mediation, then the next step would be to seek legal advice. Often the assistance of an experienced lawyer can assist in reaching an agreement. If not, the only way to force a resolution is to go to court. This should always be a last resort!
In Family Law, it is generally best to assume that you will always have to pay 100% of your own legal costs and would rarely have to pay any of your partner’s legal costs. The general rule in Family Law is that each partner has to pay their own legal costs, regardless of who “won” or “lost” (really if you are in Court then there are no winners!). It is rare that you will ever get a costs order to make your partner pay your legal costs, but if such an order is made it will generally in one of the following circumstances:
- There is a serious breach of the Court’s rules or orders by your partner
- Where you have to file an additional court application to sort out a particular issue in the matter
- When you put a formal settlement offer to your partner, they don’t accept it, and you achieve a better outcome in a final judgement in Court.
Remember however, that even in the rare case that you get a costs order, it really only means that your partner will have to pay approximately 50-75% of your legal fees.
In short – nothing! And that is often the problem!
If you have a Will that says when you die, everything goes to your spouse, then this is what will happen if you are not divorced, regardless of whether you are separated or not.given you are separated, it is probably not your intention that your estate go to your partner anymore!
If you don’t have a Will when you die, the government writes one for you – you just might not like what it says! If you die without a Will and are not divorced, the majority of your estate will probably go to your soon-to-be-ex!
So, if you are separated – get a new Will!
And also remember to update the beneficiary of your superannuation fund as this is generally not included in your estate if you die.
Divorce
A divorce is simply the legal recognition that you are no longer married. Just like you had a marriage certificate once you were married, once divorced, you will have a divorce order.
No. If your divorce is granted, all you will receive is your divorce order. You will need to make arrangements to divide your property and finances and organise time with the children separately.
You need to note however, that if you want to formalise your property or parenting arrangements in court orders, you need to file your application with the court within 12 months of your divorce becoming final.
There is no specific order – it is really up to you.
You can negotiate a property settlement with your partner at any time. While you remain separated but not formally divorced, there are no time limits on when you can file an application with the Court to either formalise your agreement, or commence proceedings if you can’t agree.
However, if you get divorced first, you must remember that you only have 12 months after your divorce is granted to then file any application with the Court relating to a property settlement. If the 12 month limit is exceeded, then whatever property is legally in your name stays in your name and whatever property is legally in your partner’s name, stays in their name. There are very few exceptions to this rule so best to keep it in mind – especially if your name is not on the title deeds and the house is only in your spouse’s name!
The process is not too complicated and generally involves the following main steps:
- Complete an Application form
- Collect a few documents for your Application which will include a copy of your marriage certificate and possibly a copy of your passport and/or citizenship certificate
- File you Application and documents with the Court and pay the filing fee
- Once your Application has been accepted by the Court, you will receive a hearing date and time
- You need to serve the filed Application, together with some other documents, on your partner (there are strict timelines around this) and file with the Court the relevant proof that this has happened
- Attend the divorce hearing at Court if you want to, or in some circumstances, you may be required to attend
- Generally your divorce order will be granted at the hearing, however this will depend on your Application, compliance with the rules and whether the Court requires any further information.
- The divorce will come into effect 1 month and 1 day after it has been granted.
You can do either – it’s up to you and will really depend on how friendly you and your partner remain! Whichever you choose (a sole application or a joint application) the process and the costs are the same. If you do make a joint application, your partner may agree to pay half the cost, but you can’t force them to!
In Australia, we have no-fault divorce. This means that a Court does not care who had an affair, who had the gambling problem, who started the arguments, who had unrealistic expectations or (in this context) who abused who. The only thing that you need to show to get a divorce is that your marriage has “irretrievably broken down”, which simply means that you are no longer together and there is no reasonable likelihood you will get back together. In most cases this is shown by you being separated for a minimum of 12 months.
You can only apply for a divorce if you have been separated from your partner for 12 months. Once separated for 12 months, you can apply any time – even if it is years after your separation.
There is nothing however stopping you from formalising your property and parenting arrangements at any time after your separation, before you apply for a divorce. Remember though, if you have not formalised these things before your divorce, you will need to do so within 12 months of your divorce being granted.
We hear you! Unfortunately, there is no such thing as a quick divorce in Australia. Before you apply for a divorce, your marriage must have “irretrievably broken down” and you must be separated for at least 12 months. If you separated and then reconciled with your partner for three months or more, then the 12-month separation timer resets and starts again.
It is worth noting too that the time taken from applying for a divorce to finalising it, typically takes at least four months.
Generally the answer will be yes. If you were married overseas but now live in Australia, and are a citizen or resident then you can apply for divorce here. You will need a copy of your marriage certificate and if it’s not in English, you will need to have a certified copy of a translation of it.
It’s still possible to get a divorce but you will need to provide some evidence that you have been separated for 12 months. Evidence of being separated might be things like not having sex together, living in separate rooms, having different bank accounts, cooking your own meals, socialising separately and telling your family and friends that you have separated.
Realising the relationship is not right for you early on can be a positive step. However, if you have been married less than 2 years, you need to visit a counsellor with your spouse and get a counselling certificate to prove you attended. The Separation Planner can assist with finding a suitable relationship counsellor if you need.
The 2 years of marriage is calculated from your wedding date to the date you make your application for divorce. Remember, you must also be separated for 12 months before you apply for a divorce.
The short answer is yes. The only thing you need to establish to get a divorce is that your marriage has ‘irretrievably broken down’.
Your partner does however have the right to know about the divorce hearing, so there are strict rules around making sure they are aware of your application and the date of the hearing.
There are only very limited reasons for opposing divorce. Since the only ground necessary for divorce is that the marriage has irretrievably broken down (generally shown by having been separated for 12 months), the only way to stop a divorce is to show this has not happened. It must either be proved that you have not yet been separated for 12 months, or there is some real chance you will get back together (and that both of you want to get back together which is normally hard to prove when one of you has filed for divorce!) If someone does oppose a divorce application, they must file a Response, and turn up to the divorce hearing.
Despite what lawyers will have you believe, you technically don’t need one! You can complete your whole divorce journey on your own. While this will save you some money, it does mean navigating the Court process on your own and making sure you have complied with all the relevant rules. If not, your divorce will not be granted. A family lawyer will however make sure your legal rights are protected.
At The Separation Planner, we can provide you with as much or little assistance as you require with your divorce.
It is still possible to get a divorce even though you no longer know where your ex is (thankfully!). In most cases, you must serve the divorce application on your spouse. You can ask for an order for ‘substituted service’ or in exceptional circumstances not be required to serve the documents at all, but you will have to prove that you have taken all reasonable steps to serve the documents or bring them to your spouse’s attention. If you find yourself in these circumstances, we recommend you use our Assisted Service.
The only circumstances where you must go to Court for the divorce hearing is if you applied for the divorce on your own and there is a child of the marriage that is under 18 years old when you completed your divorce Application. Remember that a family lawyer from The Separation Planner can always attend for you or with you if you like.
In all other circumstances you can choose if you want to turn up or not. If you choose not to turn up, the Court will let you know the outcome of the hearing.
Finding love again is fabulous but slow down! Just filing the application does not automatically mean your divorce will be granted. There is also no guarantee that the Court will grant your divorce at the hearing and you may need to come back on another date with more information.
Even if your divorce is granted on the first court date, it takes another month for your divorce and your renewed single state to come into effect (so if you remarry before your divorce is in effect that would be commiting bigamy which is a criminal offence!)
It’s your name and you can use it when you like! You don’t need to obtain a change of name certificate either. You can simply start using your maiden name again either before, during or after your divorce. Just remember however, if you also want to change the name of children, both parents will need to agree.
Property Settlements
When people separate they need to also separate their assets, finances and debts from each other. A property settlement is what we call the arrangement between you and your partner as to how all of your assets, liabilities and financial resources are divided after you have separated. If you can not come to this arrangement yourselves, you can approach the Court and it will order a property settlement for you.
Generally, the ‘property’ of the relationship can include almost anything of value. It includes things that are in the joint names of the partners as well as any property that is in either partner’s sole name. In most cases, ‘property’ includes things like:
- Any real property (house, land, unit or some other type of real estate)
- Money in bank accounts or stashed away somewhere
- Cars, boats, motorcycles or some other motor vehicle
- A business that is owned or that one or both of you have an interest in
- Any interest in a trust
- Superannuation
- Shares
- Assets acquired through receiving an inheritance
- Jewellery and other personal items
- Household furniture
Liabilities and debts are also ‘property’, whether they are owned jointly or individually, and often include things like:
- Mortgages
- Other loans like car finance, student loans or personal loans
- Tax debts
- Credit card debts
‘Property’ to be divided as part of a property settlement does not just include property acquired during the relationship. It includes property owned prior to the relationship and can include property acquired after separation.
Basically, if you currently “own it” or “owe it”, it’s ‘property’.
There is no presumption of equality (e.g. a 50/50 split) when it comes to property settlements.
50/50 is not the starting point of a property settlement, but it may just be the outcome. The ‘split’ of your property will depend on your unique circumstances.
Despite everyone knowing someone who has been through a separation, no two relationships are the same, so every property settlement will be unique, even if the end result might match the outcome someone else came to. It’s the same as saying just because you were pregnant and had a child, you know what every pregnancy and child will turn out like.
Explore the 5 Step Process set out at FAQ X to start thinking about what might be appropriate in your circumstances.
When it comes to dividing things up between you, we use what is commonly referred as The 5 Step Process.
Step 1: Is a property settlement needed?
The first step is to consider whether a property settlement is required in your particular circumstances. In most cases, a property settlement is required and will be “just and equitable” since the partners no longer have the common use of the property they enjoyed during the relationship.
But this is not true in all cases. Sometimes it is more appropriate for each partner to keep what they currently own. Such circumstances might include:
- You and your partner kept your all your financial arrangements completely separate during the relationship;
- The relationship was short in duration; or
- You are outside particular time limits to commence a property settlement (i.e. 2 years since separation for de facto couples; and 12 months since you were divorced for married couples).
If it is apparent that you need a property settlement, then carry on with the steps! If you are not sure if you need a property settlement or not, then it is best to contact us as soon as possible.
Step 2: Work out the Asset Pool
This step involves writing a list of all property (assets, liabilities, superannuation) that is currently owned by you and your partner, either in your sole name or jointly, irrespective of whether it was acquired, prior to, during or after the relationship.
You will need to attribute a value to each item. Then you add up the assets and superannuation and from this you take away the liabilities. The total figure is what we call the “Asset Pool”. It is this “Asset Pool” that you are going to divide.
Step 3: Contributions to the Asset Pool
In the third step we determine what each partner contributed towards the relationship. Contributions can include:
- Financial contributions – including direct, indirect and initial financial contributions
- Non-financial contributions.
See FAQ X below for more information on what these contributions include.
You should remember that no particular factor or contribution will be given priority over another. For example, the sole income earner of the relationship will not necessarily be entitled to a greater property settlement than the other partner who was a stay-at-home parent to the children of the relationship.
A percentage split of the Asset Pool (e.g. 50/50, 65/35 etc) is determined at the end of this step.
Step 4: Future needs & adjustments
The fourth step is to look at the future needs of both partners and determine if any adjustment to percentage split determined at the end of Step 3 should be made based on these needs. There is a long list of factors that can be taken into account here, but some examples of situations which would support an adjustment include things like:
- Age – If there is a substantial age gap where one partner has less time to generate income before retirement
- Health – If one partner has health problems which requires expensive treatment, or which effects their ability to work
- Income earning capacity – If one partner has the ability to earn a much higher income than the other partner so that they could become financially independent after the separation quicker than the other partner
- Role as primary carer of the children – If by their carer role, one partner’s ability to work is restricted
- Financial resources – see FAQ X for more information
Once these future needs (if any) have been considered, the percentage split of the Asset Pool determined at the end of Step 3, might be adjusted. For example, due to the ‘future needs’ of one partner, a 50/50 split might be adjusted to a 55/45 split in favour of that partner with the future need.
Step 5: Ensuring the practical effect of the split is “Just and Equitable”
The fifth and final step is to consider whether the proposed property settlement Ie.g. a percentage split of 55/45) is practical and can be achieved in a just and equitable manner.
To do this, the percentage split needs to be turned into dollar amounts and applying this to the specific property items in the Asset Pool.
For example, in a 55/45 split, if the partner receiving 55%wants to keep the family home, they would need to give other property (like a cash payment) to the other partner, and/or take on some debts or liabilities from the other partner, until the agreed percentage split is reached.
(See the Asset Calculator in our Planning Tools)
This really depends on whether you are able to agree with your partner on the value of each of your assets. If you are able to agree, then the value is whatever you agree that it is.
If you can’t agree, or need guidance, then some of the below suggestions may assist.
Real Estate
You can request an appraisal from one or more local real estate agents. An appraisal is an estimate of what your property is worth based on their sales knowledge and experience. They are typically free however, they can not be relied on in court proceedings as an accurate value.
You can also get a formal valuation from a qualified property valuer with specialised knowledge. This will be more reliable and can be relied upon in Court. However, there is a cost.
If you need assistance with real estate agents or property valuers, get in touch with us.
Business Interests
This will depend on the type of business and its complexity. In the simplest of cases, the value may be the value of the business assets, less its liabilities. In other cases, your accountant may be able to assist. However, in complex businesses, a valuer should be appointed.
If you need assistance with finding a business valuer, get in touch with us.
Motor Vehicles
In the majority of cases, websites such as Carsales or Redbook can provide you with a market value for your model/year car. If you have a ‘collector’s piece’, a formal valuation may be necessary.
Household and personal items
A conservative approach is usually taken when it comes to valuing furniture, jewellery and other personal items. Generally the ‘second-hand’ value is used, not the insured value, nor the replacement value.
If there is some item that is of specific value, like a 500yr old stamp collection, then a valuation might be necessary.
We have contacts who complete valuation on all sorts of items if you need!
Absolutely! Before you enter into a property settlement, both partners have an obligation to make full and frank disclosure of their financial circumstances. This includes telling your partner of the following:
- any interest you have in any property
- any income you receive from your employment or business interestsany interest in a trust as appointor, trustee and/or beneficiary
- any interest in a corporation
- any gift you have made or property you have disposed of since separation
- any financial resources eg interest in a deceased estate, interest in a family trust as a discretionary beneficiary, entitlement to a pension
Each party has to also provide the other party all of their supporting financial documents. This can include things like, tax returns, personal and credit card bank statements, superannuation statements, share portfolio valuations and business/company records.
There can be serious consequences if disclosure of a relevant matter is not provided to the other partner.
Financial contributions are any monetary contributions made to the relationship either before, during or in some cases, after the relationship. The contribution may have been made directly by either partner or indirectly through a partner’s family or inheritance. The list of examples is endless but some common financial contributions include:
- Your initial contribution. This is the total amount of property you had when the relationship started. For example, if you had some savings of $10,000, a car worth $5,000, superannuation of $20,000 and a personal loan of $8,000, your initial contribution would have been $27,000.
- Your salary and bonuses
- Money or property gifted or loaned to you from family members
- You may have received a redundancy payout
- An inheritance you received
- Interest and dividends from investments
- The career you gave up so the other partner could further their career
- The extended period of time you lived rent free in your parent’s apartment
- Your big lotto win!
There are generally two types of non-financial contributions. The first category are those contributions where a professional or tradesperson could have been employed to provide the service had the partner not done it. Again, the list is endless, but some common examples include:
- Maintenance of any property (repairs, painting, upkeep, gardening)
- Renovations to a house, boat, car etc
- Admin and bookkeeping for a family business without taking a wage
These contributions may increase the value of certain property and effectively increase the Asset Pool. It will be necessary to consider the quantity and value added by the work done.
The second category is contributions to the care and welfare of family. This is especially important where one partner works outside the home to financially support the family and the other takes care of the home and family. Some examples of this include:
- Homemaking (cooking, cleaning, doing the groceries, washing/ironing, gardening etc)
- Care and welfare of the children (raising children, minding children, school pickups, driving to extracurricular activities, etc)
Yes. Your superannuation is included as property which is capable of being divided. You may agree in an overall settlement that each of you keep whatever superannuation you have, however you can also agree for one of you to give some super from your super fund to the other partner’s super fund. We call this a ‘super split’.
The value is the property’s current value at the time your property settlement is made. The value of the property is not what it was purchased for, nor what it was worth at the time of separation or when you started negotiating your property settlement. If there is any doubt – it’s the value of the property today!
No! If one partner (from either a marriage or de facto relationship) is transferring their share of a property to their former partner then there is no stamp duty payable on the transfer of a property. Generally there would also be no stamp duty payable if the property is transferred to a child/children of the relationship, a trustee for the children or one of the parents of the relationship.
Under Family Law you can also get an exemption from paying stamp duty on cars and shares.
However, to qualify for the exemption to paying stamp duty, the transfer must be set out and authorised in formal Court Orders or a Binding Financial Agreement. Also, because stamp duty is managed by each of States and Territories separately, you should double check the specific details in your State.
Firstly, spouse maintenance is not child support. Secondly, spouse maintenance is not automatic. But spouse maintenance is an important consideration when the ongoing ability to pay bills and the mortgage are often the biggest concerns when separation first happens.
These payments (which are like ‘alimony’ payments in the US) can relieve the financial pressures from separation, especially in the short term. They are payments from one former partner to the other and are separate from a property settlement. Spouse maintenance normally takes the form of:
- periodic payments (monthly, weekly etc) from one partner to the other; or
- A lump sum payment; or
- Payment of living expenses like mortgage repayments, bills, health insurance and other daily expenses.
Spousal maintenance payments can be agreed informally between partners, or if necessary, a Court can order these payments.
Whether or not spousal maintenance is payable requires balancing and assessing the financial need of one partner against the ability of the other partner to pay. The general rule is that one partner might have to pay to support their former partner if they can afford to and the former partner is unable to support themselves adequately. There are many reasons why one partner may not be able to support themselves including:
- Being the carer of a child of the relationship who is still under 18 years old
- Their age and health
- Their physical or mental incapacity which affects their employment
If it was a gift to you, it is counted as a financial contribution. If it was a loan they made to you (which you can prove with evidence like a loan agreement, or repayments being made etc) then it is listed as a liability in your Asset Pool just like any other debt you owe.
The short answer is yes!
An easy to understand example is that if property that existed at the time of separation was used to create a new asset, then it will be included in the Asset Pool. For example, if the family house was sold and another house purchased, or the sale proceeds are sitting in a bank account, then the new house or proceeds will be included in the Asset Pool.
It is less easy to understand if you save up after separation to buy a new car, or you receive an inheritance after separation. Why should these things be included in the Asset Pool.
Remember that if you currently own it or owe it, then it is property and is included in the Asset Pool.
However, never forget that how property is divided always remains at the Court’s discretion. Therefore, whether property acquired after separation is treated as property to be divided between partners, or dealt with separately to other property, will be decided by the Court in each case.
There is no rule saying that the property settlement must be formalised. But there are certainly very good reasons for making it formal and legally binding!
The first reason to make your property settlement legally binding is that it provides you with certainty! You know what you have and can move forward.
Secondly, a legally binding property settlement will help protect any property you acquire after separation. It can also protect you from debts incurred by your partner after separation.
Finally, there are often stamp duty and capital gains tax advantages with a legally binding property settlement.
There are two ways to make a property settlement legally binding:
- To file consent orders with the Family Court of Australia (this is what we assist you with with either our DIY or Hold your Hand service)
- Enter into a binding financial agreement (similar to a pre-nup) – this is generally a more expensive and less certain option.
Yes and they are very important!
If you were married and have been granted a divorce, you only have 12 months to approach the Court for a property settlement. If you are not yet divorced, there is no time limit as to when you can approach the Court for a property settlement.
If you were in a de facto relationship, you only have 2 years from the date of separation to approach the Court for a property settlement.
There are only very limited circumstances when you can approach the Court outside these timelines – so mark them on your calendar!
There are no timelines that apply to approaching the Court in relation to parenting arrangements.
Child Support
After separation, proper arrangements need to be made to financially support children of the relationship. This occurs in all relationships where there are children of that relationship. Child support is separate to a property settlement.
It should be remembered that all parents have an obligation to support their children, however if for some reason one parent is not financially supporting a child, this is not a reason for the child to not spend any time with that parent. You can not hold your children to ransom! Remember that each child has the right to an ongoing relationship with both parents.
Child support is payable for children who are under 18 years of age, are living in Australia and who have separated parents. A child who is married or in a de facto relationship is not eligible. There are some instances when a child living overseas may be eligible.
Until the child turns 18 years old or finishes high school, whichever is the later.
Accordion ContentDespite many myths and rumours, both parents are liable to pay child support and payment depends on their individual circumstances.
Despite many commonly held beliefs, child support is not simply determined by how many nights the child spends with each parent.
The amount of child support payable, and which parent pays the other, is worked out according to a very complex formula. The formula takes into account the cost of raising children (which is based on research), the obligation of both parents to financially support their children to an extent they are able to, the income of each parent, the need for each parent to support themselves and other dependent children, as well as the amount of time the child spends with each parent.
Remember that they figure that the Child Support agency assesses as being payable is all that the paying parent has to pay. It is one figure to cover all child associated costs (food, clothes, school fees, school equipment/uniforms, extra curricular activities etc)
A helpful child support payment estimator is found on the Services Australia website here: https://processing.csa.gov.au/estimator/About.aspx
You can challenge or appeal a child support assessment completed by Services Australia, however there are strict timelines in which you can do this which are set out on the Services Australia website.
It is really up to you. If you and your partner remain on good terms, then talk about it. Many parents will chose to pay all, half or part of some of the following things for the children, either in addition to, or instead of a monthly/periodic sum of money:
- School fees
- School uniforms, books, equipment, excursions etc
- Private health insurance
- Extra curricular activities
- Medical expenses (not covered by Medicare or private health insurance e.g. specialist appointments, braces etc)
- Additional language and/or religious lessons
Whatever agreement you come up with can be put formalised in a Binding Child Support Agreement. This Binding Child Support Agreement can be registered with the Child Support agency and taken as applying to you instead of their child support assessment amount.
You can of course choose to keep things informal with no written agreement in place. However, just remember, things may not always remain so civil between you and the other parent, especially if they have a new partner and additional children come along in the future!
Any parent who cares for a child for at least part of the time and who is not living with the other parent can apply for child support.
You can apply for child support at any time after you have separated and no longer live with the other parent. You can make an online application through the Department of Human Services website or complete a form which is available at Centrelink.
Yes. After you have applied for child support, the Department of Human Services will complete a child support assessment which sets out which parent should pay child support and how much. The details of this assessment will be sent to both parents.
A parent who has the care of a child for at least part of the time and who is not living with the other parent can apply for child support. In some circumstances another person having the care of a child can apply for child support.
Yes. If you have come to some arrangement whereby you both agree that the fairest option is for neither parent to pay an amount to the other by way of child support, then that is fine. However, such an agreement should be put into a private Child Support Agreement where you set out that the amount you will both pay to each other is ‘zero’ and have this registered with the Child Support agency in lieu of the amount you may be liable to pay under the legislation.
Ideally parents make their own arrangements for the payment and collection of child support. However, if the other parent will not pay voluntarily or regularly, you can have the Child Support agency collect the child support and pay it to you. In some cases the Child Support agency can require the employer of that parent to deduct the payments directly from their wages, intercept tax refunds and prevent them from travelling overseas.
Parenting
In Australia, when making parenting arrangements, the most important thing to consider is the ‘best interests of the child’. Broadly speaking, this means that children have the right to enjoy a meaningful relationship with both parents and to be protected from harm. (Note that it is the best interests of the child, not the parent, that matter most!)
When making a parenting agreement, parents should think about a wide range of things including;
- the age of the child,
- who is best placed to provide their day-to-day care,
- special needs the child may have e.g. medical and schooling,
- their educational needs,
- practical considerations and logistics e.g. around accommodation, transport to school and activities
- the cultural needs of the child, especially where the child is Aboriginal or Torres Strait Islander,
- the child’s own views, and
- the safety of the child.
In the past we used to refer to ‘custody’ or ‘contact arrangements’. We now refer to these as ‘live with’ and ‘spend time with’ arrangements. For example, we might refer to a child “living with” one parent and “spending time” with the other parent every Wednesday night, every alternate weekend and half of all school holidays.
“Parental responsibility” is a legal term which refers to the making of long term decisions for the child. These decisions generally include things like:
- Where the child should live
- What school the child should go to
- Decisions regarding medical treatment
- The child’s religious upbringing
- Whether the child’s name is changed
There is a presumption in Family Law that parental responsibility is shared equally by the parents. There are very few instances where the circumstances are exceptional and where parental responsibility is given to one parent solely, either on a temporary basis or on a full-time basis.
So basically, equal, shared parental responsibility means that parents need to work together and make joint decisions about these ‘big’ decisions.However, the day-to-day parenting decisions (like what the child will eat, what they will wear, whether the child is well enough to attend school that day etc) remain the sole decision of the parent who is looking after the child that day.
For example, if the other parent decides the child can wear pajamas all day, not bathe, eat 3 meals of McDonald’s and leave school at lunch time because they had a tummy ache, those are day-to-day decisions and there is little you can do about it. However, where there is joint parental responsibility, you cannot decide to move interstate, change the child’s school and baptise them as Catholic without the agreement of the other parent.
Importantly, equal “parental responsibility” for the kids does not mean “equal time” with the kids.
This really depends on the holiday. The best rule of thumb to follow, is that if the other parent agrees, then you can jet off! (But definitely come back!) You should provide your travel and contact details in writing to the other parent so they know where the children are and how they can contact them.
For example, if it is your weekend to have the kids and you are planning a weekend away within your own State, let the other parent know, but their “permission” is not really required.
If you are, however, planning to fly overseas t(which means leaving the jurisdiction of Australia and the laws that govern here) then you will definitely need the other parent’s “permission”. If that permission is unreasonably withheld, and the trip is of significance and importance to you and the kids, then you may consider approaching the Court.
Another thing to remember is the ‘Hague Convention’ which is an agreement between many (but not all!) countries regarding international child abduction. So if you have been asked to agree to the children travelling with the other parent, depending on your situation, it is worth double checking that the proposed country of travel is a signatory to the Hague Convention so that if worst comes to worst, steps can be taken to have the children returned to Australia.
The short answer is ‘No’. There are no hard and fast rules about the time the children spend with each parent. There is definitely no rule that says children must spend equal or “50/50” time with each parent.
Where there is equal shared parental responsibility, a Court will consider whether equal time is in the child’s best interests and whether it is ‘reasonably practicable’ in the circumstances of that child and their family. There are few circumstances where equal time is practical after you consider the child’s schedule, parent’s work commitments, the ongoing relationship of the parents, the ability of each parent to care for the child now and into the future, travel between homes, logistics etc etc.
When equal time is not practical, the Court tries to ensure that the child spends ‘substantial and significant time’ with both parents. This means that the child spends time with both parents across a ‘cross section’ of the children’s life, which would include the following:
- Weekends
- Holiday time
- Time during the week (so each parent can be involved in routine activities like homework, activities, getting the kids up for school etc)
- Special events like birthdays and Christmas
What this looks like for each child and family will be unique which is why it is best if parents can come to their own agreement around what is in their child’s best interests and works for the family.
If you have parenting orders from a court, then the Police can assist you in enforcing those orders. However, if you do not have a court order, then the below are some initial strategies you can employ to try to reestablish contact with the children:
- Talk to the other parent in a safe environment and express your concerns
- Attend counselling together and possibly include the children if it is age appropriate
- Attend mediation to try to reach an agreement around spending time with the children
- Offer to reintroduce contact via facetime or with supervised visits in an effort to overcome any fears or concerns the other parent might have
If none of the above work, then you may have to approach the court to have formal orders put in place around when the children spend time with each parent.
Supervised time may be an appropriate way for a child to spend time with one parent where there is a real concern that the child may be at risk of harm with that parent. It enables children to maintain their relationship with that parent whilst ensuring that the genuine risk of harm to the child is managed.
There are contact centres that specialise in supervised time for children and parents. It may also be appropriate for perhaps a grandparent or trusted mutual friend to supervise time.
Importantly, supervised time is generally a temporary situation while that parent undergoes treatment, or completes counselling or various courses to ensure the risk to the child is no longer a concern. There is an expectation that the situation will move forward to that parent spending time with the child on their own, except only in the most extreme circumstances.
This is a common question after parents separate and one parent wishes to move closer to family support or move to where housing and the cost of living might be more affordable.
However, if you want to move any significant distance with the children, the other parent will need to agree. If they do agree, you can agree to arrangements being made for the child to see that other parent as suits you all and still allow the other parent to spend significant and substantial time with the child.
However, if the other parent does not agree, then you cannot relocate without an order from the Court.
Under Family Law, children can’t choose for themselves who they live with until they are 18 years old. However, this doesn’t mean the kids have no say at all!
Remember that the child’s best interests remain the most important thing when working out where the child will live. Family Law legislation sets out a number of issues and circumstances that should be taken into account when working out what is in the best interests of a particular child. One of the things that should be considered is the views expressed by the child, which should be put in context given the age, maturity and level of understanding of the child. The older and more mature the child, the more weight is given to their views.
Ideally it is best if parents can come to an agreement themselves that suits the children in their individual circumstances. It is however always a good idea to write down and record the agreement so it is clear to both parents and you can refer to it in the future if you need.
A parenting plan is simply a written agreement between the parents about the care of the children that is also signed and dated. However, it is not a legally enforceable agreement (e.g. if one parent breaks the agreement and won’t return the children, there is little the Police can do).
However, if in the future you ever do need to approach a Court in relation to parenting orders, then the Court will consider and give weight to the Parenting Plan.
All formal orders made by a Court are called “parenting orders”. In Australia, more than 95% of separated parents agree to parenting arrangements themselves and do not need to approach the Court to make formal parenting orders for them. The cases that do go to court involve a history of family violence and/or extreme acrimony between parents.
If you are unable to work out your own parenting arrangements, then a court will do it for you and you will be bound by those orders until the child turns 18 years old. Parenting orders are legally enforceable which means the courts and the Police can enforce them and there can be serious consequences for breaching the orders.
If you are not sure whether you need a parenting order or not, then perhaps start out with a parenting plan and see how that goes. If both parents work within the parenting plan, then you probably don’t need to get a formal parenting order. If however, the other parent does not stick to the parenting plan and parenting arrangements continue to be an ongoing issue, then you may wish to consider obtaining parenting orders with the agreement of the other parent, or approach the Court to make orders for you.
Have a question and can’t find the answer here? Please contact us.