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Family Law - Children

In making any Orders with respect to children, the best interests of the child is the paramount consideration. Parenting Plans are not a formal agreement but are evidence of the agreement reached and the arrangements put in place for the care of your children. Parenting Plans are useful if in the future you need to show to the Court the arrangements you had in place and why they were or were not working for you and the children.

Parental Responsibility

Each parent of a child who is under 18 has parental responsibility for the child under the Family Law Act. Parental responsibility is defined in the Family Law Act as the duties, powers, responsibilities and authority which by law parents have in relation to children.

Presumption of equal shared parental responsibility

When Parenting Orders are made in relation to children, the court will apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. This presumption is about the responsibilities the parents have for the child, it is not a presumption about the amount of time the child spends with each parent.

Best Interests of the Child

When the Court determines what is in the best interests of the child in children's matters, the following factors will be taken into consideration:

Primary factors:

• The benefit of the child of having a meaningful relationship with both of the child's parents; and
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional factors:

• Any view expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks is relevant to the weight it should give to the child's views;
• The nature of the relationship of the child with:
  • Each of the child's parents; and
  • Other persons (including any grandparent or other relative of the child)
• The willingness of each of the child's parents to facilitate and encourage, a close and continuing relationship between the child and the other parent;
• The likely effect of any change in the child's circumstances, such as the likely effect on the child of any separation from:
  • Either parent or any other child (brother or sister) or any other person, such as a grandparent or other relative with whom the child has been living.
• The practical difficulty and expense in the child spending time and communicating with a parent and whether that will effect the child's right to maintain contact with both parents;
• The capacity of the parents and others to provide for the needs of the child;
• The maturity, sex, lifestyle and background of the child and either of the parents;
• If the child is Aboriginal (in order to accommodate with the child's right to enjoy his or her culture)
• Any cases of family violence.

Parenting Orders

Parenting Orders set out who the child lives with and who the child spends time with.

Where an agreement is made between you and your former spouse/partner for parenting arrangements we can draft Orders reflecting your agreement to be filed with the Court so that the Orders are binding on each of you.
We understand that sometimes it is not possible to come to an agreement in relation to parenting arrangements. In this circumstance we can apply to the Family Court or the Federal Magistrates' Court to obtain parenting Orders and can assist you in every step in this process, from initial application to final court hearing.  

Maintenance & Child Support

To meet the basic needs of a child, the Family Law Act places a duty on all parents to contribute to the maintenance of their children. In making an Order for child maintenance the Court will determine if child support is necessary and the financial contributions which should be made by each party. The Orders will need to be made so that the proper needs of the child are met and for this the court will consider: the age, education and special needs of the children. Urgent Child Maintenance Orders can be made if the Court considers that the child is in immediate need of financial assistance.

Calculating child Support
The main considerations for the court in determining the amount of child support to be paid include:

• The capacity of each parent to earn, above the level required for self support;
• The ages of the children;
• The fact that parents should share in costs;
• The combination of the level of care (as a percentage);
• The level of the parents income;
• The costs of raising each child and any other child in the payer's care.

Child Support Agreements
It is possible to make a child support arrangement by agreement, these may be made in two forms, a binding child support agreement and a limited child support agreement

Mediation & Dispute Resolution

It is now a requirement that parties to family law proceedings attend family dispute resolution before lodging an application with the court in children's matters. If you are unable to resolve arrangements and issues in relation to the children at mediation a certificate will be issued for the dispute resolution which will enable you to commence Court proceedings for the matter.

Mediation is less expensive than Court proceedings and will be considered the first option in resolving children's issues. It is encouraged that you come to an agreement between yourselves as experience has shown that when the agreement is made between the parties they are much more likely to be satisfied with the outcome and stick to the agreement.

Mediation and dispute resolution can also be considered as a first stage in property settlement proceedings.

Child Support

 The Child Support Agency makes assessments on the amounts payable for child support.
A Child Support Assessment is based on the costs of the children, the income of both parents, the care of the children for whom child support is payable, whether the parents have any relevant dependant children living with them and whether the parents have any children in child support cases. Different formulae are used in different circumstances for the assessment of child support.
Parents are able to make a child support agreement, which can be made in two forms:
- A Binding Child Support Agreement;
- A Limited Child Support Agreement.
Court Orders or child support agreements can be made which vary the child support assessment

Child Maintenance Trusts

Where you have an obligation to pay child support it may be important to consider establishing a Child Maintenance Trust as the transfer of property to a CM Trust for payment of child maintenance obligations can create significant tax savings for the party paying child support. Please see our Child Maintenance Trust article in the Publications/Articles section.

Legal Aid

Legal Aid offer grants of assistance to determine matters for children in family relationship breakdowns. At Cosgriff Orchard Legal, we often undertake Legal Aid matters and will be able to advise you of your eligibility for a grant of assistance from legal aid. If you think you may be eligible for Legal Aid it would be useful to bring with you to your initial appointment, a copy of your Centrelink card and bank statements from the last three months, this will allow us to make an immediate application for Legal Aid and will determine your eligibility from the start.




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