Family & relationship law

Parental responsibility is a legal term that refers to the legal duties, powers, responsibilities and authority to make decisions about a child. The starting point for parental responsibility is that both parents are presumed to have equal shared parental responsibility for a child, that is both parents are jointly responsible for making decisions about ‘major long term issues’, including a child’s education, religion, culture, health, name or relocating a child away from their other parent (for example, moving interstate).

In most cases, parental responsibility remains equal and both parents retain the joint decision-making responsibility and their remains in place an obligation on both parents to consult the other parent to jointly reach a decision. There is a presumption in favour of equal shared parental responsibility, which can be reversed in certain circumstances, such as where there has been child abuse or family violence, or where other factors exist which causes the Court to find that it is in a child’s best interests for only of parent to have and exercise parental responsibility. 

Where the presumption of equal shared parental responsibility applies, the court must then consider whether or not it is in the child’s best interests and reasonably practical for the child to spend ‘equal time’ or ‘substantial and significant’ amounts of time with each of their parents. Equal time does not necessarily mean the child lives with one parent for a week and then the other parent for the next week. Substantial and significant time provides for a child to spend time with the non-resident parent on days that include weekdays, weekends, holidays and special occasions (such as Christmas). The exact arrangements for equal time and substantial and significant time will be dependent on each case and the parents and child involved.

In determining parenting arrangements, the paramount consideration is what arrangements would be in the child’s best interests. There are a number of factors used to determine what that means and each situation is likely to be different. There are some general guidelines which are widely accepted: 

• In most cases the broad care arrangements prior to separation should continue after separation unless this would bring harm to a child;
• A child has a right to properly know and relate to their parents and other important people in their lives; and 
• The most important factor is that a child should be protected from physical and emotional harm.

If parents can agree on parenting arrangements for their child, they can be evidenced in one of two ways:

• Informally through a Parenting Plan, which is a document signed by each of the parents, setting out the specifics of the arrangements agreed upon; or 
• By way of formal parenting orders, made by consent by a Court. 

A Parenting Plan is not legally enforceable; however it can be used/relied upon to evidence what was agreed between two parents as to what their respective intentions were with respect to parenting arrangements for a child at a particular point in time. 

Formal Consent Orders are legally enforceable and contain specific provisions for parenting arrangements for a child. Consent Orders are not able to be varied by either parent, without the other parent’s consent or by order of a Court. 

If parents are unable to agree on parenting arrangements for their child, either parent is able to file an Application with the Federal Circuit & Family Court of Australia seeking parenting orders. 

When a parenting Application is filed, the party filing the Application will need to file a detailed Affidavit (a sworn statement of evidence) in support of the Application in which you outline the facts on which you rely upon, in seeking the orders contained in the Application. 

Prior to either parent being able to commence proceedings for parenting orders, those parents must attend Family Dispute Resolution with a certified Family Dispute Resolution Practitioner. This is an informal mediation with a specially trained professional who assists parties to reach agreement and avoid the costs and delays likely to be incurred by commencing proceedings. If parents attend Family Dispute Resolution but are unable to reach agreement, the Family Dispute Resolution Practitioner will issue a ‘Section 60i Certificate’, which states that those parents have attended Family Dispute Resolution, made a genuine attempt to reach agreement but no agreement was reached. 

Any parent intending on commencing parenting proceedings is required to first participate in Family Dispute Resolution and obtain a Section 60i Certificate. However, there are limited situations in which parenting proceedings can be commenced without a Section 60i Certificate, for example where there is a history of family violence or abuse.

Parenting orders can be sought by:

• A child’s parents (either solely or jointly);
• The child in question;
• Grandparents of the child in question; and/or
• Any other person concerned with the care, welfare or development of the child in question. 

Orders relating to the following matters may be sought in the Federal Circuit & Family Court of Australia by a person entitled to seek parenting orders:

• Who a child is to live with;
• What time a child is to spend with another person (or persons);
• Who has parenting responsibility for a child;
• If 2 or more people have responsibility for a child, how they are to consult each other regarding decisions they are required to make regarding parental responsibility for that child;
• What communication a child is to have with another person (or persons);
• What maintenance or child support shall be paid in support of a child;
• What steps should be taken before a person entitled to seek a parenting order makes an application to a Court to vary a parenting order currently in place, so as to take into account the changing needs or circumstances of the child and/or the people who have parental responsibility;
• What process should be used by a person entitled to seek a parenting order to resolve a dispute; 
• Any other aspect of the care, welfare or development of a child; and/or
• Any other aspect of parental responsibility for a child.

The default position in Australia in relation to child support is assessed by the Department of Human Services (Child Support) “DoHS” who apply a formula based on each party’s taxable income, the time the child lives with each of them, the child’s ages, and whether either party has other children. When assessing the amount of child support a parent will pay, the DoHS will take into consideration the paying parent’s income and deduct a certain amount for that person’s self-support. The child support payable is a percentage of the remaining income, depending on the number of children and the amount of time those children spend with that parent. 

You can go onto to the DoHS website and use their calculator to work out an estimate of what child support may be payable.

In some circumstances the DoHS or the Court can depart from the formula if one of the reasons to do so is satisfied (for example, high income of one or both parents or special needs of a child or children). Parents who do not agree with the assessment undertaken by the DoHS are able to object to that assessment through the DoHS firstly through their internal objection process, and if they are still unsatisfied, then you may be able to seek further review through the Social Security Appeals Tribunal or by way of a child support departure order through the Federal Circuit & Family Court of Australia.

If people are able to agree on what child support shall be paid for their child, then they are not limited to obtaining an assessment made by the DoHS. Parents can reach a decision about how much child support will be  paid and how the child support will be paid, including periodically (for example, each month) or in a one-off lump sum payment and the way in which parents decide to formalise the agreement. 

This agreement can be formalised in a document known as a Child Support Agreement.

There are two types of Child Support Agreements, a Limited Child Support Agreement or a Binding Child Support Agreement.

A Limited Child Support Agreement can be entered into by parents, without first being required to obtain legal advice. Either parent can terminate a Limited Child Support Agreement (usually after 3 years) or if the amount that would be payable under a Child Support Assessment (by the DoHS) changes by more than 15%. A Limited Child Support Agreement may also be set aside by an Order of the Court.

A Binding Child Support Agreement can only be entered into by parents after they have each obtained independent legal advice from a suitably qualified legal practitioner. A Binding Child Support Agreement operates until a ‘Child Terminating Event’ (generally upon a child reaching 18 years of age, completing their year 12 education, getting married, or if a child dies). Binding Child Support Agreements cannot be terminated by either party, although recent legislation has been enacted that now provides that if an eligible carer (either parent) for a child reduces their care of the child to 35% or less of all overnights for a period of more than 28 days and the Agreement does not specify what should occur in the event of such change, then the Agreement will be suspended for a period of 28 days. If the carer’s time does not return to the required amount within 28 days, then the Agreement is terminated in respect of that child and child support will then be payable in accordance with an Administrative Assessment from the DoHS.

A Binding Child Support Agreement can also be set aside by Court Order; however they are much more difficult to set aside than Limited Child Support Agreements. A Binding Child support Agreement would not be set aside simply because a parent is no longer employed, unable to meet their obligations set out in the Agreement or because the amount provided for in the Agreement is no longer appropriate

There would need to be ‘exceptional circumstances’ for a Binding Child Support Agreement to be set aside. 

The short answer is yes, however (with the exception of a child with special needs), there is no longer a legal obligation on you to pay child support. Many people however continue to meet their child’s financial maintenance after their child turns 18 or completes their year 12 education, especially in circumstances where a child does have special needs or is undertaking further tertiary study. 

Often parents who continue to meet these costs setup a ‘Child Maintenance Trust’ to meet these costs, which has specific taxation advantages.  

It is also possible for an Application to be made to the Federal Circuit & Family Court of Australia for an Adult Child Maintenance Order, providing for the care of an adult child who requires financial support through their tertiary education or due to their health or special needs.

Contrary to popular belief, there is no mathematical formula used nor is there a presumption when determining a property settlement that a Court starts at 50/50 to each party. Instead, in determining a person’s entitlement to property settlement, a four-step process applies in almost every case:

1. What are the total assets, liabilities superannuation entitlements and financial resources of the parties are (“the net asset pool”) and the parties’ respective interests in those assets, liabilities superannuation entitlements and financial resources;
2. What contributions were made by each of the parties to the acquisition conservation and improvement of the asset pool, both financially and non- financially, directly by each of the parties or non-directly (on behalf of each of the parties), including as homemaker and parent (“contributions”);
3. What future needs/resources adjustment (“future needs adjustment”) should be made to either party, taking into account any (or all of the following):
   • Any differences in age;
   • Any differences in their health;
   • Any differences in their income and income earning capacity;
   • Whether one of the parties to the marriage or de facto relationship has contributed to the income earning capacity of the other party;
   • What are a party’s overall property and assets;
   • Whether either party has the care or support of any children including arrangements that may be in place for the payment of child support;
   • Whether either party has the duty to care or support any other adult;
   • What are the commitments of each person to care for themselves;
   • Whether either party has a new partner and what are the financial circumstances of that new partner;
   • What is the overall standard of living and is it reasonable in the circumstances
4. Finally, there is a requirement to take a step back and look at the effect of steps 1 to 3, what are the practical implications and effects of the proposed settlement and is the overall settlement “just and equitable.”

It is usually at steps 2 and 3 above that we start considering each parties’ entitlement as a percentage of the net pool of assets available for division between parties, for example if we consider the contributions made at step 2 and they are found to be equal (that is, each party is entitled to 50% of the net assets). Often there are factors that are relevant at step 3 (such as one party having a significantly higher income than the other, or one party having the majority time of caring for children), that result in a party receiving more of the net assets, by way of a further percentage adjustment (for example a 5% adjustment to one party, based on their future needs, resulting in Orders that provide for an overall division of the net asset pool as to 55% to one party and 45% to the other).

If you are unable to reach an agreement with your former partner, you will need to make and application to the Federal Circuit & Family Court of Australia for property settlement. If an application is made, in almost all cases, the four step process outlined above will be applied by the Court to determine your property settlement entitlement, following which the Court will make orders.

If you are able to reach an agreement with your former partner, you and your partner can evidence that agreement in one of two ways:

1. By asking the Court to make orders by consent, in accordance with the terms of the agreement reached; or
2. By entering in a Binding Financial Agreement, setting out the terms of the agreement reached.

A Binding Financial Agreement is simply a form of contract that is available to people who reach agreement and wish to evidence that agreement AND who which to remove a Court’s ability to make orders and/or otherwise deal with the matters that form the content of the Binding Financial Agreement.

Binding Financial Agreements can be made at the following times:

• Before the commencement of a marriage or a de-facto relationship (often these are referred to colloquially as Pre-nuptial Agreements);
• During a marriage or de-facto relationship, without the parties to that relationship having separated (that is, they are still in a relationship); 
• During a marriage or de-facto relationship, after the parties to that relationship have separated (that is, they are no longer in a relationship; and/or
• After married parties have separated and have obtained a Divorce. 

Binding Financial Agreements are technical and can be complicated documents and have special requirements, including the requirement for each of the parties to obtain independent legal advice from a suitably qualified legal practitioners certifying that advice has been given as to the effect of the Agreement and the advantages and disadvantages to the party entering into it. If a Binding Financial Agreement is not drafted correctly and/or the appropriate advice is not given, then the Agreement may be set aside (that is, not binding) and a party to the Agreement may be able to seek an alternative property settlement through the Court. 

If you are unable to reach an agreement with your former partner in relation to spouse maintenance, you will need to make an application to the Federal Circuit & Family Court of Australia for spouse maintenance. Often this application is made at the same time (or shortly after) an application for property settlement is made. If an application is, the Court will consider the three points outlined in the section above to determine whether a claim for spouse maintenance has merit and whether appropriate orders should be made. 

If you are able to reach an agreement with your former partner regarding spouse maintenance, you and your former partner can evidence that agreement in one of two ways:

1. By asking the Court to make orders by consent, in accordance with the terms of the agreement reached; or
2. By entering in a Binding Financial Agreement setting out the terms of the agreement reached.

Often people enter into a Binding Financial Agreement with respect to spouse maintenance providing for neither party to be liable to the other for the payment of spouse maintenance (other than a small once off payment, usually $10.00) as part of an overall property settlement and spouse maintenance negotiated outcome.  

This is not always the case and each matter should be considered on its own merits and circumstances.

Often Court processes can be lengthy and costly. It is becoming more and more common for separating people to attempt to reach agreement through less adversarial (non-court) processes, including collaborative law, mediation, settlement conferences or through arbitration. 

In the collaborative process, each party is represented by their own lawyer through a series of structured meetings throughout the process. The lawyers work with the clients to help them establish effective and constructive communication skills to assist with the negotiation towards reaching a resolution. A separating couple in the collaborative law process assumes responsibility to exhaust all avenues to solve the problems confronting them and also take responsibility for solving those problems. In order for the collaborative law process to work, the following conditions must exist:

• Both parties must be represented by a lawyer or law firm who are accredited, willing and able to participate in the collaborative law process;
• Both lawyers and each client must sign a binding legal contract at the start of the process which provides that all four parties to the contract will not go to Court or use threats of Court to solve the dispute;
• If the collaborative law process fails, both lawyers and their firms must withdraw from acting for their respective clients and the clients must start again with new litigation lawyers.

Mediation is a process that involves both parties and an independent mediator who assists in negotiations. The mediator acts as a go-between so that the parties can arrive at their own solution. The mediator helps with communication and might advise on how to formulate a proposal for settlement but does not suggest outcomes or provide advice. Often parties engage in mediation with their lawyers present also, so advice can be provided during the process and documents evidencing any agreements reached, can be drafted.

Settlement discussions or conferences can be conducted directly by the parties themselves or through (or with the assistance of lawyers). Usually this process involves lawyers negotiating directly with each other on behalf of their client, to reach a mutually agreeable resolution for their clients.

If you are able to reach an agreement with your former partner regarding parenting, property settlement, spouse maintenance and/or child support, you and your partner can evidence that agreement in the following ways:

1. By asking the Court to make orders by consent, in accordance with the terms of the agreement reached;
2. By entering in a Binding Financial Agreement setting out the terms of the agreement reached; or
3. By entering into a Child Support Agreement setting out the terms of the agreement reached.

Arbitration is another type of less adversarial process and involves an independent and neutral arbitrator (usually someone with significant legal experience, such as a retired Judge, Senior Counsel or a senior legal practitioner) hearing evidence from each party and making a decision as if they were a Judge. All parties must agree for the matter to be arbitrated.

Arbitration is a more formal process than collaborative law or mediation as it essentially involves a private Judge being appointed to determine the matter. Presently, only financial matters can be arbitrated (not parenting matters).

One major benefit to arbitration is that if all parties agree to participate, the process is generally much quicker than commencing proceedings in the Family Law Courts and waiting for a dispute to be heard at a final hearing (which currently can take up to 3 years)

Unless otherwise agreed between the parties, the costs for the arbitrator are shared equally between each party. In addition, each party would ordinarily be responsible for the costs of their respective legal practitioners also.

There are very limited grounds on which a party can appeal an arbitrator’s decision. Appealing an arbitrator’s decision can only be made on ‘legal’ grounds and not simply because a party does not like the arbitrator’s decision.

Going to Court (also referred to as commencing litigation or proceedings) is often a ‘last resort’ and occurs because attempts to reach agreement or settle a dispute through less adversarial avenues have not been successful. Other times, commencing litigation may be urgent (for example to stop a parent removing a child or children from Australia or stop a party from depleting an asset, such as a bank account). Regrettably, sometimes going to Court can be unavoidable.

Currently, the Federal Circuit & Family Court of Australia is the main Court that deal with family law related matters. 

Just because a party commences proceedings doesn’t mean that parties to a dispute can’t still engage in less adversarial avenues and/or reach agreement between themselves, in fact often most matters before a Court don’t go all the way to a final hearing and instead, parties reach agreement and evidence that agreement through Consent Orders or a Binding Financial Agreement. 

Where Court proceedings are necessary, broadly speaking there are two major categories that most issues fall into, the first relate to what orders should be put in place on a final basis and the second category relates to what orders should be put in place on an interim (immediately or in the short term up until final orders are made) basis. In both categories, the Court can deal with a wide variety of issues, including property settlement issues, spouse maintenance issues, children and parenting issues, child support issues as well as a number of other issues, such as injunctions (restraints on people doing things or making people do things) and legal costs. Someone commencing proceedings must seek final orders if they also wish to seek interim orders, whereas someone seeking final orders only, does not have to necessarily also seek interim orders. Often when proceedings are commenced, there are a number of interim orders sought along the way to final orders being made. 

Generally speaking, once Court proceedings are commenced, parties to those proceedings are required to physically attend the Court events, with the exception sometimes of procedural hearings (such as directions hearings or mentions) which are often conducted by telephone or video conference. Usually, but not always). Parties to proceedings generally are not cross-examined (questioned) in a witness box or have their evidence tested until a final hearing.

Court proceedings are more often than not costly and take a long time to achieve an outcome. Over the past 10 years or so, the Family Law Courts have seen a significant increase in cases and the delays to get a matter to a final hearing from the date proceedings are commenced to the end of a final hearing can be up to 3 years.

Where possible, it is usually better (and more cost effective) for people to reach agreement through less adversarial avenues than through litigation.