Parenting

Many parents want to know what their 'rights' are over the parenting of their child and how they can retain custody.

It's very important to understand, right from the outset that it is the child who has the rights, and not the parent.

Child Custody is an outdated term in Australian Family Law although it is still commonly used and is the appropriate terminology in other jurisdictions.

There term refers to the arrangements for the parental care and residential and financial provision for the upbringing of the children of a relationship.

These days Arrangements for Children are made as parenting plans, parenting agreements or orders and talk about parental responsibility and who the child lives with and how much time the child spends with and communicates with each parent.

The Family Court will make orders for the time a child spends with each parent based on what is in the best interests of the child.

Time spent with each parent is not the same as Equal Shared Parental Responsibility.

In the vast majority of cases, it is in the best interests of the child to have a relationship by living with, spending time with and freely communicating with both parents.

Unless there are circumstances which place your child's safety in real danger, do not deliberately alienate the other parent to serve your own needs.

The Court will make a decision about the amount of time a child spends with each parent that it considers to be in the best interest of the child.

It could be:

• shared care (equal time), or

• substantial and significant time.

Shared Care (Equal Time)

There is an increasing trend, particularly with school aged children, towards a shared care arrangement where the child will spend equal time with each parent. This often takes the form or a full week about with each parent. Holidays are also shared 50/50 though the stays may be extended to allow for travelling.

Sometimes, shared care is not a practical and the Court must consider a child living with one parent and spending Substantial and Significant Time with the other parent.

Substantial and Significant Time

Substantial and significant time includes:

• Allowing the parent to be involved in the child's daily routine

• Spending time on the weekends and during holiday periods

• Spending time on other days during the week both during the day at night or overnight stays

• Communicating with the child at times when they are not spending time together

• Allowing for participation in events that are significant to the child and the parent such as sporting events, cultural celebrations, school functions, family birthdays and Mother's or Father's day.

This arrangement is designed to allow both parents and their extended families to foster a nurturing and significant relationship with the child.

If you are a parent, it is almost certain that one of your first priorities when considering separation will be to ensure that your children are adequately cared for and provided for.

If you are applying for a divorce, the court must be satisfied with the arrangements that you have made for your children before a divorce will be granted. This doesn't necessarily require orders or a binding agreement to be in place.

If you don't want to formalise the arrangements for the care of your children you can opt for either a verbal agreement or draw up a parenting plan.

It is recommended that you go through the exercise of preparing a parenting plan as this will assist you in future if either of you are unsure on what the initial values or intentions were in terms of raising your children.

If you can reach agreement with the other parent and wish to formalise arrangements, you may enter into a legally binding agreement or apply for a parenting orders.

Orders and agreements for the arrangements for children deal with such things as:

• who the child will live with

• how much time the child will spend with each parent and with other people, such as grandparents

• the allocation of parental responsibility

• how the child will communicate with a parent they do not live with, or other people

• any other aspect of the care, welfare or development of the child.

If a parenting order or binding agreement is made, every person who is subject to the order or agreement must comply with it.

If one person doesn't abide by the undertakings, the other party can apply to have them brought before the court to be dealt with.

What is a Consent Order (Parenting)?

A consent order is a written agreement between parents (or guardians) that is approved by a court and covers the living arrangements for children as well as arrangements or the provision of finances to meet their needs.

Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing.

The consent order should also include details such as how agreements may be amended in future, either by way of agreeing a parenting plan or by applying to the court for a formal amendment.

The Court must be satisfied that the orders you ask for are in the best interest of the child before they will seal your application for consent orders.

Applying for Parenting Orders

If you and your ex-partner can’t reach agreement, then you can start court proceedings to ask the court to make a decision for you.

You do this by filing an Initiating Application. You must accompany the application with a Section 60I FDR Certificate.  Notice of the application is served on the other person and they are given the opportunity to also present their side of the story.

The magistrate may ask for input from expert witnesses such as psychologists and accredited family consultants.

Older children may be asked for their view on what they would prefer the living arrangements to be.  An independent children's lawyer may be present to represent the voice of the child.

In applying the principles of the law, the court will not be swayed by what the each parent prefers or what has gone before, but will make a ruling in terms of what is considered to be in the best interests of the child.

The Court listens to the circumstances of the case and makes Parenting Orders.

Unless ordered otherwise, you and your ex-partner can agree to change a parenting order in the future by entering into a parenting plan.

For more information on the step by step process of applying for consent orders click here.

For more information about the process for applying for parenting orders from the court, click here.

Changing Parenting Orders

There are two ways to change Final Parenting Orders which are either in the form of Consent orders or Parenting Orders made by the court:

• agree to the changes with the other parent (or guardian) affected by the order and make an application to the Court for Consent Orders to reflect the changes, or

• Prepare a Parenting Plan with the other parent outlining the changes and setting out the new agreements. Both parties must sign and date the Parenting Plan.

Child Support is financial support paid by one parent to the other parent or carer of the child as a contribution towards the care and well-being of a child under the age of 18. Carers can include grandparents, other relatives, or friends, who have the child in their care.

Child Maintenance is financial support which is sometimes payable for your children after they turn 18.

There are two situations where child maintenance may be payable for 'adult children':

• where the maintenance would be necessary to enable the child to complete their education (school, TAFE, or university)

• where your child has a physical or mental disability which prevents them from supporting themselves.

Child Support and Child Maintenance are not taxable in the hands of the receiver.  

You can make a private agreement with the other parent about adult child maintenance, or you will need to seek an order from the Family Court.

Either of the child's parents, a grandparent, the child themselves or any other person concerned with the care, welfare or development of the child can apply to the Family Court for an order for adult child maintenance.  

The Child Support Scheme is managed by the Federal Government Department of Human Services but is commonly referred to by it's previous name, the  Child Support Agency (CSA).  

A formula is used to calculate the payments due based on:

• both parents' income

• if you are supporting other children

• the amount of time you care for the children (your 'care levels')

• the costs of raising children (including the number of children you have and their ages)

• the basic living needs of parents

Most separated parents are covered by the Child Support Scheme and may approach the agency to assist them if the other parent is not willing to appropriately support their child.

From 1 July 2009, the child support scheme includes children from a previous same sex relationship.

To give an indication of the amount of Child Support applicable to your circumstances, you can use the following calculators:

• 'Dept of Human Services - Percentage of Care Level Calculator'

• 'Child Support Estimator'

Parents can reach an informal or private agreement outside the mandatory CSA scheme.  If you reach a private agreement, you are advised to make it legally binding by entering into a Child Support Agreement or filing Parenting Consent Orders which include the provision of child support.

There is a capping on the amount of child support payable. The cap is applied to the combined income of both parents up to 2.5 times the annual equivalent of all Male Total Average Weekly Earnings (MTAWE) and calculated using the Costs of Children Table. Source: Law Handbook

It is not illegal to start to use another name for your child without officially registering the change however, this may become problematic at a later date. 

You will not be able to make an application to the Registry for Births, Deaths and Marriages to change the family name of your child without the other parent's consent if:

• the other parent also has 'Parental Responsibility' for the child, or

• the other parent is listed on the child's Birth Certificate

unless:

• you have a Court Order which says you have Sole Parental Responsibility for the child, or

• the other parent is deceased

A parenting order made before 2006 may not indicate which parents have 'Parental Responsibility'. In these cases, the principles of the Family Law Act, 1975 apply which implies that both parents have shared parental responsibility and must obtain the consent of each other on long-term matters such as changing the child's surname.

Strictly speaking, if there are no Court Orders in place regarding children, you don't need the other parent's consent to travel overseas with your children. However, in the interests of effective co-parenting, you should discuss this with the child's other parent before making plans.

Where Court Orders are in place for children, the Family Law Act states that if you wish to travel overseas with your children, you must first obtain the other party's consent to do so.

In most circumstances, it is reasonable for one parent to want to travel internationally with their child, particularly if they have family or cultural ties to the destination country.

To avoid the issue of overseas travel becoming a dispute, when entering into Consent Orders or Parenting Agreements regarding your children's arrangements, include provisions for both parties to travel overseas with your children under various conditions.

If your child doesn't have a current passport, the non-travelling parent will need to sign the passport application.

Try to negotiate an agreement with the other parent about travelling with your children. Private discussions are often successful or you may engage the services of a mediator or legal representative.

If the non-travelling parent won't sign the passport application, you will need to file an application with the Family Court seeking that their signature is not required or an Order directing them to sign.

In reviewing your application, the Court's most important consideration is what is in your child's best interests.

Factors the Court will explore when deciding if your proposed travel should be allowed might be:

• The length of your stay outside the jurisdiction the bona fide of the application

• The effects on your children not being able to spend time with the parent in Australia

• Any threats to the children's welfare in the proposed overseas environment where significant travel warnings by the Australian Government are in place

• How satisfied the Court is that your promise to return to Australia will be honoured (you'll need to provide copies of return airline tickets and itinerary)

• The existence (or otherwise) of continuing ties between the departing parent and Australia, such as owning property, business interests, or family/close friends in the country

• the existence and strength of possible motives not to return, including the level of conflict between the parties concerned, particularly over child-related issues

• the existence and strength of possible motives to remain in the country of proposed travel, again including such things as property ownership, business interests, and the existence of family and other personal ties.

If you are able to satisfy the Court your holiday plans are genuine, you'll probably be successful in getting an Order for the passport, as well as an Order allowing you to take your children overseas. In some circumstances, the Court may consider it appropriate to set conditions or require financial securities to make sure your children come back to Australia.

The form the security bond takes varies from case to case and could be a monetary bond paid to and held in trust by the non-travelling parent's solicitors or an agreed third party or it may be the travelling parent signing over an asset as security.

The following factors might be explored when setting a security bond:

• In fixing the sum of money as security, whether the sum will realistically entice the person travelling with the children to return to Australia

• Will the sum adequately provide the parent remaining in Australia to take action for the return of the children, if necessary

• The degree of risk that the departing parent will not return to Australia

• The financial circumstances of both parties

• Any hardship to either party if the level of security is increased or decreased

• Whether the country of travel is a signatory to the Hague Convention

• The likelihood of deviation to a non-convention country

If you travel overseas and fail to return your children to Australia in accordance with the return airfare/itinerary, the security or bond may be released to the non-travelling parent so they can use the funds towards recovering the children into their care and bringing them back to Australia.

It is important to remember that it is the child who has rights and not the grandparents.  The child has a right to spend time on a regular basis and communicate with on a regular basis with both of their parents, their grandparents and any other people significant to their care, welfare and development.

As the child is seldom in a position to make the arrangements, often after a family split, a pattern will form where the grandparents only really see their grandchild when the child is spending time with the parent that is the son or daughter of the grandparents.

If agreement can be reached, these undertakings can be written into a parenting plan by the parents, or made legally enforceable with orders which name the grandparent or both grandparents.

If the grandparent cannot come to a suitable arrangement with the child's parent(s) to facilitate spending time with, or communicating by phone, letter, email, Skype etc with their grandchild, then they can apply to the Court for Orders.

It is mandatory for the grandparents to attempt Family Dispute Resolution with the parents before an application for orders will be accepted.

In hearing the application, the Court recognises that ordinarily, grandparents play a valuable role in the lives, development and general well being of their grandchildren but may also consider the following:

• The nature of the existing relationship between the child and the grandparents

• Any potential harm to the child's well-being

• The capacity of the grandparent to provide for the needs of the child

• The likely impact on the child of separation from the grandparent.