Kids and de facto endings

kids and toy carsThe arrangements worked out for your children are similar to separating married couples.

Working out what is in the best interests of the kids

Much of family law in Australia is based on doing what is in the best interests of the children.

So what exactly does the best interests of a child mean? You might think it means one thing while your former spouse might think it means something entirely different.

To set your minds at ease and to guide you, the Family Law Act tells you exactly what this vague expression means.

Best interests of the child are primarily:

• The benefit to a child of having a meaningful relationship with both parents

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

But additionally they are also:

• Any views expressed by the child

• The nature of the child’s relationship with parents and others, including grandparents

• The extent to which each parent has taken, or failed to take, the opportunity: – to participate in making decisions about major long-term issues in relation to the child; and – to spend time with the child; and – to communicate with the child;

• The extent to which each parent has fulfilled his or her obligations to maintain the child

• The effect on the child of any changes in their circumstances

• The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on a child of maintaining personal relationships and direct contact regularly with both parents

• The capacity of each parent and others to provide for the child’s needs

• The maturity, sex, lifestyle and background of the child and parents

• The child’s right to enjoy Aboriginal or Torres Strait Islander culture, where relevant

• Each parent’s attitude to the child and to parenting

• Any family violence involving the child or a member of the child’s family

• Any family violence order

• The desirability of making the order that is least likely to lead to further proceedings

• Any other fact or circumstance the court thinks is relevant

It’s a lot to take into consideration but the most important or primary things to consider are ensuring your child has a meaningful relationship with both of you and is protected from any violent or potentially violent and/or abusive situation. You can probably guess that the law considers preventing violence and abuse as the most important thing to get right when it comes to your kids.

Separating parents usually understand most of these considerations and work out between themselves how their children will be looked after and where they will live without getting the courts becoming involved and having them impose conditions. I can assure you if you can do this by putting aside your feelings about each and not treating the kids as pawns, you will be well on your way to a hassle free divorce.

Coming to an agreement

Now there are 3 different ways both of you can come to an agreement:

1 Having a simple informal agreement

♦ Keep the agreement informal by simply coming to an understanding between the two of you as to what will work best for the kids. If you can do this, there’s no need to put things in writing.

2 Making a parenting plan

♦ Make a formal parenting plan. This is an agreement in writing made, signed and dated by both parents. The plan deals with parental responsibility; who the child lives with; who they spend time and communicate with; what child support might be involved and other issues. Take a look at the parenting plan brochure to find out more.

The great thing about a parenting plan is that you don’t need to go to court to get this organised. But it’s important to remember that a parenting plan is not valid unless it was made voluntarily, without any threats, duress or coercion.

As parents you should only sign a parenting plan after seeking advice from a lawyer. I say this because your lawyer has probably done a parenting plan many times prior to seeing you and they can often pinpoint things that may not occur to you to include in the plan. For example, you may want special days like your birthday to be a day when you can see your kids. This must be included in a parenting plan.

And always keep in mind those “best interests of the child” considerations when developing your plan.

The Family Relationship Advice Line is also a great way to get free information and help when making your parenting plan.

You can call them on 1800 050 321 (8 am-8 pm, Mon-Fri or 10 am-4 pm on Sat)

3 Obtain consent orders from the court

♦ A more official way to sort out your parenting plans if you are both in agreement is to obtain consent orders approved by the court. A consent order is a written agreement that you both agree to covering the parenting arrangements for your kids. It can include financial agreements such as property division and any maintenance requirements that might be needed.

Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. It is a document you would both prepare in consultation with your lawyers who will then come up with a single agreement you are both in favour of and send it to the court for approval. Normally you shouldn’t need to appear in court for these orders. Please remember that the court takes these orders very seriously and if you breach them you may have to explain why directly to the court.

And once again, the Court must be satisfied that the orders you ask for are in the best interest of the child.

Here’s a fact sheet on applying for consent (and other) orders from the court.

When you can’t seem to work things out

Sometimes despite giving it your best shot, it may be difficult to reach an agreement (or a fair one) about what will happen with the kids. You might also not want to negotiate with your ex if there could be the possibility of endless arguments or even worse, violence.

If you’re in this predicament you can apply for a parenting order.

But not so fast because the law has a process you must go through before the court considers issuing orders about how the kids are to be looked after.

The Family Law Act (the law) requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for a parenting order. Family dispute resolution can be done through any accredited family dispute resolution practitioner or Family Relationship Centre.

How family dispute resolution works

Firstly, before any family dispute resolution (FDR) takes place, you are assessed to see if the service is right for your case. Usually, the two of you are interviewed separately to see if FDR is going to work.

The process is conducted by an accredited family dispute resolution practitioner who can help you both discuss any issues you have and how from that you might be able to work out an agreement with a parenting plan.

Finally it is comforting to know that any FDR discussions you have are confidential and can’t be used in court against you.

So in summary:

♦ If you try FDR and it doesn’t work out, OR

♦ If your ex did not attend FDR due to the refusal or failure, OR

♦ If one of you doesn’t attend FDR because the practitioner did not consider it would be appropriate to conduct FDR

You still get what’s called a 60 I certificate, which must accompany your application for a parenting order.

There are several important exceptions where you won’t need a 60I certificate including:

♦If the matter is urgent

♦If the Court is satisfied that there are reasonable grounds to believe that there has been child abuse and/or family violence by a party.

♦There is a risk of family violence by one of you, and/or there is a risk of child abuse if there was a delay in applying to the Court.

♦Where one of you can’t participate effectively in family dispute resolution for reasons of incapacity, illness or simply living too far away from a dispute resolution practitioner.

♦If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

What does the court consider when issuing parental orders?

Let’s start by looking at some big misconceptions about how the court makes decisions.

Firstly, women don’t always get the kids. In fact the latest court statistics show that judges made orders for children to spend a majority of their time with their mother in only 62% of cases.

Secondly, the person who initially leaves the relationship and the children may still be able to care for the children in the future. There are all sorts of reasons why people might have to leave initially, and the court will assess the circumstances behind anyone leaving and not just make simple and biased decisions.

Thirdly, blaming the relationship breakdown on one parties and then saying that they shouldn’t get the kids means very little to the court. The court doesn’t want to know about the ‘ins and outs’ of your personal relationship. Whether a parent’s behaviour affects the children is much more relevant.

Finally, neither of you are necessarily entitled to 50:50 equal time. The court will look at what is in the child’s best interests, and issues of practicality.

In essence, a parenting order is a court order that states who has what responsibilities for the children. These orders cover areas like who the kids live with and who (and when) they spend time with. In the parenting orders there may be reference to where and how the kids are schooled and other things of relevance to their care, like their special needs or medical treatment.

For more detailed information on parenting orders take a look at this great brochure from the Victorian Legal Aid HERE.

Are you entitled to child support?

It doesn’t matter if you’re not married, you’re still entitled to support from your former partner if you care for a joint child. If there is a dispute about who the child’s parents are a court may order a DNA test.

You may also be able to claim child support from your former partner if you were in a same sex relationship. The Department of Human Services has all the information you need about child support HERE.

What social security rights do de facto couples have?

De facto couples have the same social security rights as married couples. That means if you separate from your de facto partner and you have a dependent child, you could qualify for assistance. 

If you are a parent, or non-parent carer, and have children from a previous same-sex relationship you may be eligible for child support.

If you have a child from a previous same-sex relationship you must take reasonable action to obtain child support to get more than the base rate of Family Tax Benefit Part A for that child. If you do not take reasonable action, you may have to repay some of your Family Tax Benefit Part A.

For more information go to the Child Support Agency website

You should also advise all relevant government agencies of any separation as this could be relevant to social security and child support purposes.