An overriding feature of the Family Law Act in relation to children’s matters is that the court (if there are contested proceedings) must have as primary considerations:-
- The benefit to a child of having a meaningful relationship with both parents.
- A need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The majority of separating parents have a good insight into the needs of their children and are able to reach an agreement (sometimes with the help of a solicitor or mediator) about the day to day living arrangements for their children.
If however, an agreement cannot be readily reached the parties are best advised to obtain professional assistance through a solicitor so as to reach an agreement about arrangements for the children and thereby avoid court proceedings. Frequently the arrangements that the parties had put in place for the care of children prior to separation, provide an indicator of the most appropriate arrangements following separation, although that is not always the case.
The role of a solicitor is to initially provide advice as to a client’s rights and further give guidance so as to avoid, if at all possible, court proceedings. Solicitors will usually attempt to negotiate a settlement of the issues in dispute. If, however, court proceedings need to be commenced it is important for parties to the litigation to receive competent and practical representation so that the process is completed as early as possible and in the most cost effective manner possible.
Except in matters of urgency or where there is family violence, court proceedings in relation to children’s matters cannot usually be commenced unless the parties have undertaken mediation with a registered family dispute resolution practitioner or there has at least been a genuine effort to cause that to happen. It is important, however, for each party to understand their rights and obtain some guidance as to the court’s view of appropriate arrangements for the care of children, in light of their particular circumstances. That advice is best provided initially by a solicitor who will also advise and make referrals as appropriate, to organisations such as a family relationship centre, or other mediator.
Litigation should be avoided if at all possible. It has the effect of polarising the parties, and often the children, so that it becomes more difficult at the end of the process to maintain a satisfactory working relationship between the parties. Litigation is also expensive and involves lengthy delays, usually with no final resolution for about one year after the commencement of proceedings.
The first and most important step, however, is to obtain competent, practical and sympathetic advice from a specialist family law practitioner.
Generally, child maintenance is an issue dealt with by the Child Support Agency. The agency is a Federal Government agency, which has the responsibility for assessing and, if appropriate, collecting child support payable by one parent to the other.
An application for child support may be lodged online, or posted to the Child Support Agency.
The calculation of child support is based on a formula, the primary elements of which are the income of each of the parties, the number, and ages of the children, and the time that the children are in each parties’ care. If the children primarily live with one parent, an arrangement for time with the other parent, between 5% and 33%, has no impact upon the application of the formula. In other words, fairly usual arrangements for children to have time with the parent with whom they do not live, such as spending time with that parent each alternate weekend from Friday afternoon through to Monday morning, as well as school holiday time, will fall within that range.
In appropriate circumstances the formula can be varied, having regard to the particular circumstances of the children, such as a long standing agreement for the children to be educated at private school, or unusual care requirements because of health issues, or the cost of transportation for the children to spend time with the other parent. Except in cases of urgency, or if an appeal against a Child Support decision needs to be lodged, the Family and Federal Circuit Courts are not involved in the process of child support.
A link to the Child Support Agency website, which will provide further, and more detailed, information, is:
Spousal maintenance is financial support provided by one party to a marriage or de facto relationship, to the other party, in circumstances where there is:
- A need for financial assistance by that party;
- An inability by that party to provide for their own financial needs (in part or in whole);
- The financial capacity of the other party to assist in the provision of the applicant’s financial need.
It is common, but not universal, that spousal maintenance orders are made for a limited duration, typically to enable one party time to retrain and obtain suitable employment so that they can support themselves.
Spousal maintenance must also be considered in light of any application for property adjustment orders, as an order for one may impact an order for the other.