When a marriage or a de facto relationship breaks down, it is common for too much emphasis to be placed on dividing up the assets. But it is the welfare of the children that should be the first and most important concern.
The Family Law Act 1975 (Commonwealth) covers issues relating to children. They are dealt with through the Family Court, the Federal Magistrates Court or the Local Court. These three courts cover issues relating to child custody laws, residence of children and the financial support of children. The courts don’t distinguish between the marital status of the parents, whether they are married, de facto, same sex couples or adoptive.
Which laws apply?
In disputes concerning child custody and where children will live, the starting point is Section 65E of the Family Law Act 1975. There are normally two separate hearings, an interim hearing and a final hearing.
The first child custody hearing – the interim hearing
The first (or interim) hearing is designed to put an arrangement in place that will protect the children from harm and maintain the current status of their relationships with the parents until the final hearing. An interim hearing usually takes place one to two months after the filing of an application with the court. The judicial officer reads any sworn statements (affidavits) from the parties, then hears submissions from each party. At this point, a decision is made about the arrangements for the child until the final hearing. The proceedings at this hearing are not designed to get to the bottom of any issues or allegations. There is generally no cross examination to test who is telling the truth. That is the role of the final hearing.
The final child custody hearing
It may be up to a year before the final child custody hearing takes place. How long it takes depends on which court the application will be heard in. In some cases the delay may be longer than a year.
At a final hearing, all the evidence is presented to the judge, including any relevant documents. The witnesses who have given sworn statements (affidavits) will usually be required to attend court to be cross examined. In some cases, a report from a court-appointed counsellor, psychologist or psychiatrist who has interviewed the parties and observed the children, is presented to the court. In those cases, the counsellor may also be cross examined.
The parties then make submissions to the judge. After considering and weighing all of the evidence, the judge then gives a decision and makes orders for the arrangements for the children. These orders stand until each child's eighteenth birthday or until further orders are made by the court.
Pre-action procedures
When applications for parenting orders are filed with either the Family Court or the Federal Magistrates Court, both parties are ordered to undergo pre-action procedures. Pre-action procedures include taking part in dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.
Pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.
Reaching a settlement out of court saves you and your family considerable time, stress and money.
Applying for parenting orders
Parenting orders are legally binding arrangements which cover:
- Parental responsibility and decision-making
- Who the child will live with
- The amount of time a child will be allowed to spend or communicate with the other parent
- Child maintenance orders (although these are less frequent because most children are now covered under the Child Support Scheme).
If an out-of-court agreement cannot be reached, then an application for parenting orders must be submitted to either the Family Court of the Federal Magistrates Court.
A parenting order may also be applied for by:
- A grandparent
- The child
- Any other person concerned with the care and welfare of the child
The decision is then made through a court hearing. The court’s decision will be based on what is in the best interest of the child. More information about how the court makes its decision can be found Section 60CA, Section 60CC and Section 64B of the Family Law Act 1975.
Child support
Under the Family Law Act, both parents are responsible for the care of their children, regardless of whether they separate or enter new relationships. According to sections 61B to 61DB of the Family Law Act, parental responsibility refers to the duties, powers, responsibilities and authority which parents have in relation to their children.
The Act says: "In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
What the Child Support Agency does
Under the Child Support (Assessment) Act, the child’s primary carer can claim child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements, and assessing the amount of support to be provided. The decision is based on each parent's income, the number of children and their living arrangements.
If you are not happy with the Child Support Agency’s assessment, you may be able to apply for an independent review of the assessment by a Senior Case Officer (SCO). The review is determined through a hearing. If you believe that your assessment needs reviewing, Armstrong Legal can help you prepare your submission in order to achieve the best outcome for you and your children.
It is also possible to enter into a private agreement with your former partner, without going through the Child Support Agency. We are experienced in drawing up private child support agreements and can help you negotiate and formalise an agreement with your former spouse.
Contact Armstrong Legal:
Sydney: 02 9261 4555
Canberra: 02 6288 1100
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