You need advice and information to make the right decisions.
We offer the following information to guide parents who are separated or considering separation.
Talk, compromise and agree
Talk to your partner about how you will care for your children before you separate. It is imperative that you maintain a line of communication with your partner either directly or through an intermediary such as a relative, friend or counsellor.
When negotiating, both parents should be prepared to compromise their perceived ideal arrangements for the sake of resolving the matter.
The advantages of reaching an agreement are:
- the stress and worry of separation will be kept to a minimum
- greater chance of a constructive on-going relationship with your partner;
- avoid the potentially significant cost, time and anxiety associated with dispute resolution processes;
- retain control over the parenting arrangements.
A parenting agreement can be as simple or as complex as you like. Generally it is best to keep it fairly simple. For practical reasons and for the sake of stability it is often agreed that children will live mostly with one parent and spend the remaining time with the other parent and other significant family members.
Once you have reached an agreement you should consider formalising it. The simplest way of doing so is by way of Family Court consent orders. The process is generally quick and straightforward. The Court provides a form for this purpose which requires certain background information about the parties and the children. Annexed to the application is a minute setting the terms of the agreement.
The advantages are:
- the agreement will be clearly documented and binding on both parties; and
- you may include any agreement in relation to property division in the same application.
You don’t have to formalise any agreement regarding parenting matters. Many parents choose to leave their agreed arrangements on an informal basis.
If required, mediation brings you and your partner together for discussion and resolution of disputes. Mediation works best if both parties have obtained advice. For many people mediation is an attractive alternative to contested proceedings in the Family Court. You may wish to consider the mediation services offered by the following organisations:
The Family Court of Western Australia can assist parents to resolve parenting disputes, whether the parents are married or not. An application can be made by either parent or other interested person – eg. a grandparent.
In our respectful opinion, the process offered by the Court is not a particularly effective way of resolving parenting disputes. The Court process should be used as a last resort.
The Court has the power to make orders relating to the care and control of children under the age of 18 years. This includes orders relating to the long-term care, welfare and development of a child (often referred to as guardianship), matters relating to the daily care, welfare and development of a child, such as who the child resides with and when and on what basis they have contact with the other parent, and orders in relation to any specific issues associated with the welfare of a child.
The Court must take the following matters into consideration:
- the best interests of the child are always the paramount consideration
- children have the right to know and be cared for by both parents
- children have the right of contact on a regular basis with both parents and with other people significant to their care
- the wishes of the child (as best the Court is able to ascertain those wishes) will be taken into consideration; however, these wishes will always be seen by the Court in the context of the age and level of maturity of the child
The Court has discretion in these matters; and this brings to mind one of the risks of going to Court in these circumstances – that the Court may impose on you and your partner an arrangement that doesn’t actually suit either of you.
You should consider very carefully the benefits and costs of engaging a lawyer to represent you. If you are able to take a reasonably objective view of the issues and can express yourself clearly you should consider representing yourself. The Family Court‘s website has helpful information.
Child support agreements
Child support agreements may provide for payment of periodic amounts and also payments to third parties which benefit the children – for example school fees or health insurance.
In general, there are two types of agreements that determine or alter the amount of child support to be paid; namely limited child support agreements and binding child support agreements.
Once signed these agreement must be lodged at the Agency for registration.
If you are separating you must give consideration to the financial arrangements for your children.
The child support scheme in Australia is administered by the Child Support Agency (Agency).
The scheme provides for an administrative assessment of the child support which generally creates a liability for the non-custodial parent to pay child support. The assessment is based on a formula which takes into account many factors including the incomes of both parents and the amount of time the children spend with each parent.
The Agency’s website has a useful child support calculator. The calculator will give you an estimate of the amount of child support you can expect to pay or receive through the Agency.
It is open to you or your partner to ask the Agency to issue a child support assessment; however, if both parents agree, you may have a private child support arrangement either by:
- making a child support agreement (see further below); or
- having an informal agreement.
- Child support is often an area where parents fall in conflict. Many parents find the Agency a useful intermediary because it helps parents manage their responsibilities.
- Many parents prefer to have the Agency involved because it’s objective and impartial and, once an assessment has issued, both parties know what their rights and obligations are.
- The administrative assessment of child support creates a fair outcome in the vast majority of cases.
- Some parents who pay child support prefer to direct their payments in a way that has a direct benefit for their children, for example, for school fees, health insurance or other expenses. This is only possible through a private arrangement.
- you and your partner will retain control over the arrangements for the children.
- Visit the Child Support Agency‘s website
- Phone 131 272