Often in family law cases confusion exists by payers of child support that their time with the children is somehow linked to the fact that they pay child support. This is not the case and the two issues are completely separate. Child support is a moral obligation and not to be confused with time with the children.
These days child support issues are not often dealt with by family lawyers and or the family court except in cases whereby a variation in child support may be sought and a review by the Family Court is necessary.
Generally child support is handled by the administrative scheme set up under legislation with the primary statutes being the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).
Under the legislative scheme the primary concern is that children receive a proper level of financial support from their parents. From the perspective of the non paying parent the scheme has very strong powers to assess and collect from payers their share of child support. We know that in many cases the Child support Act allows for the automatic deduction of child support from the wages of the payer where they are not willing to make voluntary payments. However another interesting and much unknown fact is that the Child Support Registrar even has the power to prevent a payer from leaving the country by applying a departure prohibition order if the payer has an outstanding child support payment.
As stated above the involvement of lawyers and the courts are limited in child support issues, however should you require any assistance with understanding the regime or wish to have a private agreement drafted please contact us at Save U Legal.
Parental Responsibility and Decisions
Where there are no parenting orders in place the legislature presumes that parents have equal shared parental responsibility. What does this mean? Well it means that you and your ex partner are jointly responsible for the long term and day to day decisions for your children.
In making parenting orders a court must firstly determine whether the presumption applies and if so from there what the children’s time with the parents should be. For parents with shared parental responsibility the starting point is equal time if it is the best interest of the child and reasonably practicable.
By virtue of s 61 B Family Law Act 1975 ( Cth) , Parental responsibility in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. The types of responsibilities included would be the long term and day to day decision involving the child. The Act defines major long term issues in s 4(1) as;
“major long-term issues” , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Section 65 DAC(2) provides that where a court makes an order for shared parental responsibilities the parents must confer and come to a decision jointly on major long term issues. There is no responsibility to confer on day to day decisions.
Quite often one of the parents who has obtained court orders feels they have more say in the children’s upbringing then the other and decides to makes long term decision on their own. This can be a real point of dispute going forward. Should this happen to you and you need advice or assistance do not hesitate to contact us at Save U Legal.
Time with Children
Or should we say children’s time with the parents. Many people believe it is their right to spend time with their children and often approach a parenting matter with this attitude. WRONG.
The parliament of Australia does not recognise any parent’s right to spend time with their children. In fact it is the complete reverse with the emphasis focused on the children’s time with their parents. In relation to making any parenting order in relation to children the court must consider what is in the best interest of the child/children as a paramount consideration.
Section 60CC provides for the courts consideration when deciding what is in the best interest of the child and include;
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Obviously the safety (b) of the child must take priority over (a) and does so in all cases.
Other factors include ( this is not exhaustive);
(a) Views expressed by the child ( if they are mature enough)
(b) The existing nature of the relationships between the child/ parents and other members of the family
(c) How much involvement the parents have had with the child ie time spent / communicate etc
(d) The parent’s fulfilment or failure of parenting obligations.
(e) Practical difficulty of children spending time with and communicating the other parent.
As explained earlier the starting point for time where it is found that the presumption of shared parental responsibility exists is equal time. However this can only be ordered where it is in the best interest of the child and reasonably practicable. Where equal time cannot be ordered the court must then consider the child spending significant and substantial time with the parents. This time includes time such as on weekends, holidays and special occasions such as birthdays and weekends.
If you are experiencing difficulty with your child being able to spend time with you or communicate with you please feel free to make contact with our office at Save U Legal. Our experienced solicitors can help you work out the best course of action to take to ensure that your child receives the time with you that they deserve.
Call us today on (07) 5599 1705.