In the event that families separate, the legal system encourages parents to reach agreement about the parenting of their children, including how those children will be financially supported.
When parents separate, it is not necessary for them to go to court about the arrangements for their children. Parents can work out the arrangements themselves. Sometimes parents may choose to get help in this process, either from people in the community, by engaging in mediation, or by retaining a lawyer. Court procedures tend to be costly, so it is always best to try to obtain agreement outside of a courtroom.
The legal system recognises that, subject to any concerns about a child's safety, it is beneficial for children to have both of their parents meaningfully involved in their lives. As a result, even when parents separate, each parent still has "parental responsibility" for each child under age 18, unless a court order says otherwise,. Parental responsibility includes all the duties, powers and responsibilities that a parent has in relation to a child. Parental responsibility does not change or end just because the parents' relationship changes.
When parents separate, the legal system encourages them to reach an agreement between themselves about matters concerning their children by entering into a "parenting plan". Parenting plans are written agreements made between a child's parents. Parenting plans deal with one or more of the following topics:
- who the child will live with;
- who the child will have contact with;
- how the child will be financially supported; and
- any specific issues related to parental responsibility such as education, holidays, sport, religious or medical matters.
Parenting plans can also be changed by a written agreement between the parties, except where the plan has been registered in court. If a parenting plan has been registered with a court, it is necessary to go back to court to revoke the parenting plan or to seek a variation.
In order to obtain enforceable obligations, a "parenting order" may also be obtained from the court. A parenting order can be obtained by either or both of the child's parents, the child, a grandparent or any other person concerned with the care, welfare and development of the child.
Parenting orders can deal with the same subject matter as parenting plans, including matters related to residence, contact, child maintenance or other specific issues.
When making a parenting order, the court's primary consideration is the best interests of the child. There are many factors that a court must consider when determining what is in the best interests of the child, some of which include:
- the child's wishes;
- the nature of the child's relationship with each parent and each parent's attitude to the responsibilities of parenthood;
- the practical difficulty and expense of a child having contact with a parent;
- the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs; and
- family violence.
The legal system also seeks to ensure that children receive a proper level of financial support from their parents. As with other parenting matters, parents may generally make their own agreement about the financial support of their children without the necessity of going to court.
Different processes apply to the financial support of a child, depending upon when the child was born and when the parents separated. If all children were born before 1 October 1989 and the parents separated before that date, the issue of support is dealt with by the Family Court of Australia. Under the old system, payments for the support of children are governed under the Family Law Act and are known as "child maintenance".
If any of the children were born after 1 October 1989 or the parents separated after that date, support is administered by the Child Support Agency. Under this system, support payments are governed by the Child Support Acts 1988-1989 and payments are known as "child support".
Under the child support system, parents may choose self administration. Self-administration gives parents the flexibility to decide how much child support is paid, decide how it is paid and make payments directly to the other parent. If private arrangements do not work, a number of other options are available. A parent can ask the Child Support Agency to make an assessment of the appropriate amount of child support, in which case the parent could either continue collecting the payments privately or may also request that the Child Support Agency collect payments. Parents may also enter into a written agreement regarding child support, and then choose either private collection or collection by the Child Support Agency. A lawyer can provide valuable legal advice when parents are making an agreement regarding child support, and can also assist with many other aspects of legal proceedings.
