Separation & Your Children - Knowing Your Rights

Separation is hard on everyone involved in the relationship, including the couple, friends and family. But the people who suffer the most are often the children. When their parents separate, children will feel a range of emotions, from anger and hurt, to depression and grief. The way they react will depend on their age and the degree of animosity between the parents. And while it’s important you nurture these emotions, it’s also imperative that you try to keep life as simple as possible.  

It’s okay to tell your child you have separated, but they don’t need to know why. And you mustn’t put your children in the middle of any conflict. Children should never be privy to adult affairs. 

The most essential thing you need to remember in separation is that your child/ren need both parents in their life (unless there is family violence involved). And if children are encouraged to have a positive relationship with both parents, grandparents, and other relatives, they have a better chance of adapting to the situation. 

If you work together for the sake of the child/ren, you can come up with an amicable solution that is practical and agreeable by both parties. To do that, you must know your rights. The following document outlines what they are and how to go about getting them.

CONTENTS:

  • When A Relationship Breaks Down
  • Parenting Orders vs Parenting Plans vs Consent Orders
  • About Mediation: Do You Need It?
  • Preparing The Written Agreement
  • Child Custody Arrangements
  • Child Support FAQs
  • When Do You Need Legal Help?
  • Making Separation Stress-Free

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When A Relationship Breaks Down

When a relationship breaks down, the most important thing to do to start with is to create a short-term agreement so both parents can spend time with the child/ren. At this stage in the separation, it’s vital that you focus on simple parenting arrangements for children that work. You don’t need to see a lawyer to do this, provided you can come to an agreement amicably.

The most important thing to remember is that just because you are divorcing or separating, doesn’t mean your obligations to your child/ren end. In fact, until they are 18 you are obligated to continue to provide financial care, and share parental responsibility. Always consider the best interests of the child. 

Children have the right to live with either parent, provided there is no risk of abuse or neglect. Grandparents, step-parents, aunts and uncles and anyone who is important to the care of the child - also has a right to see them and spend time with them. 

What Do Children Need?

Aside from joint custody arrangements that work, children need much more to cope with parental separation. They need to know you still love them and that they are allowed to love their parents. Don’t make them choose a side – when it comes to your children, there are no sides in the family unit. Tell your children they are not to blame for the relationship breakdown. 

Listen to them if they want to talk about it – don’t judge their opinions or feelings. Keep the other parent informed of any problems that arise (regardless of if you have more or less custody). Don’t let the children hear or see you fighting and keep children out of your arguments. Talk positively about their other parent and ensure they know that both parents love them. Most importantly, forget about what’s “fair” to you, and instead focus on what’s fair on them. 

The Best Interests Of The Child

Regardless of if you are in a marriage (including same-sex), de facto relationship or you are the step-parent to the child, when deciding on child custody, it’s always important to consider what the child wants, as well as what the child needs. If you’re unable to do this yourself, you may need assistance from the courts. 

Whether you’re working outside the law, or in a court, you need to consider all of the following in order to determine the best path for the child: 

  • The child’s views: depending on their age and maturity – who do they want to live with?
  • The child’s relationship with both parents – they are closer to one parent?
  • Whether both parents want to be part of the child’s life – and how much custody and parenting time they want
  • How any changes might impact the child’s mental and physical well being
  • Any practical difficulties for parents to see the child – perhaps one parent is moving interstate
  • The capacity of both parents to meet the emotional and intellectual needs of the child
  • The gender and culture of the child and parents, and ensuring cultural values are upheld if important
  • How the parents have acted in the past in regards to parenting; has one parent always played a less active role?
  • Any history of violence, neglect or abuse 

 

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Does Biology Matter?

When it comes to custody of a child, yes, biology does matter. As a child’s biological parent, regardless of gender, you are entitled to equal rights over child custody. If you are the child’s step-parent, or if you are in a same sex marriage and are not the biological parent of the child, unfortunately you are not automatically entitled to shared custody. Your best option is to discuss custody with the biological parent of the child and try to come to an arrangement you are both comfortable with. If you cannot do this, seek mediation or legal advice.

Parenting Orders vs Parenting Plans vs Consent Orders 

Parenting Orders

If you and your ex can’t agree on the details when it comes to your child’s custody, and you have already attempted a Family Dispute Resolution (FDR),  you’ll need to apply to the court for a parenting order. Before you can do this, you must provide the court with a section 6ol certificate, or similar, from a registered FDR provider to show you have already tried mediation and it was unsuccessful. 

Once arranged, a parenting order comes from the court and details your responsibilities, basing the arrangement on what’s in the best interests of the child. If you don’t follow the parenting order, you are breaking the law, and you could receive a fine of $6,600, a year in jail, or community work for doing so. 

Parenting Plans

If both parents agree on custody schedule and parental responsibility, you can make your own parenting plan without needing mediation or a court order. A parenting plan is basically a less formal agreement that can be as short, or long, as you need. It is usually written in simple English, no legal terms, and sets out clear and concise requirements of both parents. 

You don’t need a lawyer, but you might like to ask for legal advice to ensure you are including everything you need. It can be easily changed without the use of the courts, provided both parents agree on the changes. Breaking a parenting plan isn’t breaking the law, though the other parent may take you to court if you do – and the court will then put parenting or consent orders in place. 

Consent Orders

If you and your ex agree on the arrangements for your children, you can apply for consent orders setting out each parent’s responsibilities. It is similar to the parenting plan, however it is legally binding. If you break a consent order, you are breaking the law and the penalties, as mentioned above, may apply. Although these orders are generally between parents, they can also be submitted by grandparents, aunts and uncles, or other relatives to ensure they are still receiving their visitation rights. 

About Mediation: Do You Need It?

The family law system in Australia encourages families to decide their own child custody arrangements before taking the matter to court. This can be done either by discussions between the parents themselves; or if they are unable to agree, through mediation, which is defined by the Australian Mediation Association as “a process by which a neutral third party called a mediator helps people in conflict negotiate a mutually acceptable agreement.” 

The mediation process includes getting a family member or friend to help the parties come to an agreement, incorporating a general informal mediation, or through the use of the Family Dispute Resolution (FDR), which is a family mediation process within the Family Law Act 1975 that is completed by an accredited Family Dispute Resolution practitioner. 

The idea of mediation is to keep the matter out of court, which can be a long and stressful process (as well as expensive). 

According to Australian Family Law, compulsory Family Dispute Resolution must be completed before a case can be taken to court; unless there are extenuating circumstances, such as family violence, child abuse, or urgent issues.

Cost, Timeframes & Arrangement 

Cost: A mediation costs much less than court, but the price depends on the provider. According to the Australian Government, community-based family law generally offers a standard FDR fee policy that is based on both the income of the parent and the capacity to pay, while private providers set their own fees. Some people may also be eligible for free services. A Family Relationship Centre provides the first hour free, with $30 an hour for second and third hours for people earning over $50K a year. For people earning less than that and receiving social security or health benefits, the second and third hours are also free.

Timeframes: There’s no set time on how long mediation will take as it depends on the complexity of the problems and the number of issues that need to be addressed. It could take a few hours, or it could take days. The more parents work together, the less time it will take.

Arrangement: FDR services are provided through Legal Aid Commissions, Family Relationship Centres and other family law services. You could also work with a private practitioner. Check with your local service providers or get in touch with the team at AJB Stevens.

What Happens Next?

In the mediation, you’ll develop a parenting plan that sets out everything you need to know and do for the children. It will be dated and signed by both parents, and it may include clauses that allow for changes in future. 

Preparing The Written Agreement

If you’re preparing a parenting plan or other written agreement, ensure you keep in mind the child’s best interests. Things to consider include: 

  • Which parent / guardian will the child/ren live with?
  • Will there be shared care?
  • Does religion or culture need to be taken into account?
  • Are there educational or schooling requirements?
  • Who takes them to sports and swimming lessons and who pays for these?
  • Overseas holidays
  • Religious ceremonies and family events
  • Where do the children go:

>  If they are sick

>  When there are student-free days at school

>  During school holidays 

You also need to consider the financial costs of shared care.

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Making Changes To The Agreement 

If your circumstances have changed, or you’ve been approached to make changes to any of the above agreements, you can do so – provided it’s in the best interests of your child/ren. 

With the parenting plan, all you need to do is simply make the changes in writing, and have it signed and dated by both parents. 

If you need to change a parenting order or consent order, speak to your legal representative and they will be able to arrange a draft order for the Family Court, who will make a decision on whether to allow the proposed change. 

Child Custody Arrangements

The major factor, of course, in preparing documentation or agreements for your children is child custody. If you have a child, or children, under the age of 18, both parents or a guardian must remain responsible for them. Splitting up does not diminish the amount of responsibility of one parent. 

The Family Law Act 1975 ensures child custody arrangements are in the best interests of the child and includes current and long-term decisions about a child. It ensures both parents remain active in the relationship with the child, provided it is safe to do so, and that they share all the decision making and financial costs. 

Regardless of if you are arranging custody in or out of court, the following options may be considered: 

Weekends: This is the most common type of custody arrangement, where one parent has the child every alternate weekend (from Friday afternoon to Sunday night or Monday morning). 

Week On, Week Off: This provides the children with a 50-50 chance to spend time with each parent. They spend one week with one parent, the next week with the other parent. For this to work, parents would need to live near each other, particularly if the child is in school. This is also an ideal way to spend the school holidays. 

Two, Two, Three: This is particularly good for younger children who may not yet be in school, but can also work well with older children who are easily adaptable. Children spend two nights with one parent, two nights with the other parent, then back to the first parent for three nights over the weekend. And this continues the next week, alternating parents.

In the second and third case mentioned above, children would need their own bedroom and belongings at both houses. 

Keeping in Contact

It’s important that regardless of which custody arrangement you make, the child/ren need to remain in contact with their other parent. This could be through phone calls or text messages; or if you are operating on the week on, week off basis, it’s possible the children may spend an afternoon with the alternate parent during that week. For example, if the children are with their mother for the week, the father might come and take them to dinner every Tuesday; or visa versa. 

Child custody agreements aim to provide as little disruption to your children’s lives as possible. Work these in with their extra-curricular activities, as well as your own job, travel and life commitments, and with any luck, you’ll be able to come to an agreement that works for all three parties. 

If you can’t agree, mediation or further legal assistance might be in order. However, if you can agree on your child custody arrangements, you can leave it as part of your parenting plan, or you can apply for a legally-binding consent order with the Family Court.

Child custody agreements cease once the child turns 18 years old, marries, enters into a de facto relationship or if another guardian adopts them. 

Child Support FAQs

What is Child Support?

Child support is money that is transferred between parents who have separated, to help cover the financial costs of raising their child/ren. It is about sharing the cost of raising a child, and it is paid to the parent who either has the majority custody or who needs it most to cover expenses.

How is it arranged?

There are four ways in which child support can be arranged: private agreement, an assessment or court order.

Private agreement: If both parents agree on a child support amount, they may create and sign a written agreement to suit. If preferred, this agreement can be registered with the Department of Human Services, Child Support Division, who can collect and distribute payments as per that agreement.

Assessment: This is the most common type of payment arrangement, with the Department of Human Services (DHS), Child Support Division assessing both parties, then collecting and distributing payments.

Court Ordered: If a child is over the age of 18 but needs continued guardianship and financial assistance, an application can be made to Family Court for child support. This may be the case in a child who is living with a disability and requires ongoing care, or for educational purposes.

Who pays it?

For parents who don’t live together, only one parent will be eligible to receive the payment. Both parents will be assessed, and the payment will be based on the income they both receive, as well as who provides primary care.

When does it need to be paid?

Child support is payable when the parents are not living together, the child/ren is under the age of 18 years, and the child does not have their own partner.

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How much do you pay?

The amount of child support you’re required to pay depends on a few things; the income of both parents, the number of nights the child spends with each parent in the year, the costs each parent spends on the care of the child, and the costs of the child in general. The more parents earn, the more child support will be, and it can be anywhere from $0 (if unemployed) up to the cap of $23,401 per annum for a child under 13 years, or $29,156 for a child over 13 years of age. Click here to learn more about how costs are calculated.

What does child support cover?

There are no rules as to what the money is used for and the recipient can use the money any way they like. Ideally, it will pay for things like school or sports fees, clothing and shoes, food, and so on.

If the payer prefers, up to 30% of child support can be paid directly to bills, such as rent or school fees. This, however, needs to be recognised by Child Support and agreed on by both parties.

Does a new relationship/marriage affect child support?

If you start seeing someone new, or remarry, their earnings do not impact the amount of child support you need to pay. This is based solely on yours and your ex partner’s income.

How long do you pay child support?

Child support must be paid until:

  • the child turns 18 years old
  • the child gets married or enters into their own de facto relationship
  • the child dies
  • the child is adopted
  • the child is no longer an Australian citizen
  • the parent receiving child support moves to a country not included in the International Child Support Agreement with Australia
  • neither parent cares for the child
  • the parents get back together
  • either parent dies

What if a parent fails to make payments?

If the child support payments are registered with the DHS, the Child Support Registrar may take payment directly from the payer’s employer, take money from social security or Family Tax benefits, or take the money from the payer’s tax refund. 

When Do You Need Legal Help?

It’s vital for the welfare of your child, you and your former partner that you try to agree on long-term parenting issues. However, there are instances where legal help may be required, including if you: 

  • can’t agree on custody arrangements
  • have experienced domestic violence
  • also need a protection order forcing your partner to leave the home
  • have concerns about debts or savings
  • own property together and cannot agree on who will live there, whether you will sell, etc
  • need financial advice based on how the separation will affect parenting payments, child support, superannuation, joint bank accounts and debts 

You might also go to court for

  • a Specific Issue Order, which determines particular issues such as which school the child goes to;
  • a Prohibited Steps Order, which might prevent a specific event from taking place; or
  • a Parental Responsibility Order which is for parents and step-parents who want more say in a child’s life.

If you and your ex agree on custody and other matters, you do not need to go to court, however, you may choose to make them formal through a consent order, as mentioned previously.

Making Separation Stress-Free

Separating is never easy, and if there are children involved, the process can be quite complex – as you’ve seen in this document. There is a lot to consider, but the most important thing you need to take care of is the health and well being of your child/ren and yourself.

How you cope with the break-up yourself will often determine how your children will cope. If you remain positive, keep them in the loop (but don’t provide them with details), and remain as amicable as possible with your ex-partner, your children are more likely to adjust and recover from the situation.

Try to view the world through their eyes, be honest with them, and aim to make as few changes to their life as possible.

 

If you need any assistance or advice, get in touch with our team today.

At AJB Lawyers, we’re experts in separation and family law in Sydney. We understand the process is lengthy and complicated, and we’ll work with you for the best outcome for your family unit.

We provide services and advice in mediation, separation agreements, divorce, custody arrangements, maintenance and child support, as well as asset valuation and property matters. And should you require representation in family law courts, we’ll be there to argue your case.

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