Does what the kids feel actually matter?
Our Family Law Act in Australia makes it pretty clear that  the ‘best interests of the children’ is the main consideration for the court when making decisions about parenting. But what indeed happens when Mum and Dad separate and the kids don’t want to spend time with the parent who isn’t the primary carer?
A recent decision in the Federal Circuit Court (Weller & Weller [2017]), makes a decision that leaves little doubt that the opinion of the children isn’t an overriding reason to stop dad (or mum) from having visiting rights.

This case involved two children, aged 11 and 14. They had told both the mother, and the court appointed Family Consultant, that they were very unhappy and resistant to spending time with their father. One of the children, during a ‘Child Conference’, said to the Family Consultant that their father, on a visit to his home at Christmas, had made them stand out in the rain with all the Christmas presents he had given them because he said they had been ‘ungrateful’.
The court in its judgement noted that it is not for children to decide where they live, and if they spend time with the parent with whom they do not live. This is a matter for the parents, and if the parents cannot decide or agree, and if there is an appropriate application before the Court, then it is a matter for the Court.

The Court of course is bound to follow both the Family Law Act, and previous decisions in the court, in determining primary considerations like this. 
And in doing this, the Court must give greater weight to the need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents. It must ensure that any order it makes does not expose a child to an unacceptable risk of family violence.

But if the issue of violence is not in the mix, as was the case here, the Court must apply the provisions of section 65DAA of the Family Law Act which looks at children spending EQUAL time with their parents.
However, where Court finds that it is not in the children’s best interests or practicable (think here where a parent lives a considerable distance away from the children), then the Court must consider the children spending substantial and significant time with the parents. Of course these words ‘substantial’ and significant’, don’t have any fixed meaning.

The two children in this matter attended ‘reunification therapy’ and in one of the sessions, when their mother was also present, they all brainstormed in how they could repair their relationship with the father, including:
More compromise and discussion relating to activities they would do together; a rule regarding not swearing; that Dad would attempt to ‘not to get so angry’ and that both parents would agree not to say negative things about the other parent in the presence of the children or on social media.
[The Legal Eagle covered “the destructive powers of parents dissing each other on Facebook” HERE.]
Later at a different session, where the father attended with the children, this feedback from the children regarding their  feelings as well as their concerns regarding contact with the father was passed on to him.
The children and the father agreed on a range of things that they would each try and work on to improve their relationship. A “Contract” was drawn up which listed, among other things, the following matters:
1. No swearing
2. No unkind comparisons 
3. No bum touching
4. No calling one child fat
5. Replying to msgs and calling Dad
6. No rushing by Dad

Even though the kids were unhappy with spending time with Dad because of his off putting and at times insensitive behaviour, the court felt that the issues raised by the children were not enough to allow them to stop seeing him. While the Court appreciated that children see things differently to adults, and that in children’s eyes some things may appear more important than they would in an adult’s eyes, but it’s role is to consider ALL of the available evidence and make an assessment based on the evidence. The court did allow for a final Family Report to be done to assess whether the future visits were working well for all concerned before final orders relating to parenting were put in place.

In these sort of matters the court does have wide discretion to the weight it gives to certain factors. As children move closer to an adult age, their opinions are often given much more weight. The strength of their views, and the length of time they have held them is also important. Additionally, if the child’s views are well thought through, or are as a result of pressure on the child, will also have weight in the court making parenting decisions.

As the court noted in this matter, “The Court is charged with the task of assessing what is in these children’s best interests, and it does this by, in part, turning its mind to weighing the probabilities of competing claims and the likely impact on children in the event that controversial assertions are acted upon or rejected. This includes the possibility of these children continuing along a trajectory of a fractured relationship with their father which may well be on its way to being beyond repair, if it is not already.”

And indeed what is the greatest risk in the long term?
Is the risk of losing a child’s relationship with one parent the greater risk?
It is here that the long term affect, throughout a person’s life, of having no contact with one parent can have devastating and psychological consequences.

Find out about more about what happens to the kids when you separate HERE.

What does the law say about child support?

The Child Support Scheme (CSS) began in 1988 and it’s job is to enforce the right of children to be supported by both their parents. The CSS is based upon the Child Support Act which requires 2 important things:

♦ That children receive the proper financial support from their parents (that they are liable to provide). So what that means is if one parent isn’t earning much while the other is doing much better, there will be a greater liability for the bigger earning parent.

♦ That periodic amounts of child support payable by any parent towards the upkeep of the children are paid on a regular and timely basis.

(The WA Parliament, because WA likes to have its own family law regime, has also created laws that adopt what the Commonwealth child support laws say.)

What if my ex doesn’t want to pay child support?

As mentioned, the law states that parents have a duty to financially support their kids (both birth and adopted). Even if one partner believes the child was an “accident” and doesn’t want to be involved, they are still required by law to financially support that child.

A parent is liable to pay child support if they are a legal parent of the child AND either a Resident of Australia, or a resident in another country that cooperates with our child support rules.

So who runs child support?

The Child Support Agency (CSA), and they are part of the Department of Human Services.

Their role includes assessing amounts of child support payable, with a slightly complicated formula but don’t worry because the  assessment in essence takes into account the income of both parents; the care arrangements that you both have in place; and the number of dependent children you have (including any dependent kids from other relationships).

The CSA can also collect and transfer child support payments, when it’s requested by parents (or carers). Some parents don’t do this because they prefer a more direct and private way of paying child support that doesn’t involve the CSA having to handle the payments.

Making an Application – Parents

A parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis. Parents can apply for an administrative assessment of child support for a child regardless of the amount of care they provide for their child.

When a parent makes an application for child support to CSA, it means that both they and the other parent will be assessed in respect of the costs of the children and the amount of child support payable will depend on the incomes of both parents and the percentage care you each provide for your children.

The percentage of care you undertake is important in the assessing child support and is usually determined according to the actual care that each of you have of the child. It also pays a big part in the formula used to decide how much child care you may be entitled to.

This actual care can be reflected in a care arrangement between the two of you or with non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child’s care.

Parents are required to notify CSA about the care arrangements and agreements for the children.

Your income is another important consideration in working out the amount of child care to be paid to the primary carer. If either of your incomes and/or care percentage changes, it’s important to let CSA know. It may mean a new application for child support is needed.

If either parent is not a resident of Australia on the day of the application then there are additional considerations. And it’s comforting to know that Australia has reciprocal arrangements with many countries around the world that will enforce your rights to child support.

So how do we make an agreement about child support?

Parents may make a child support agreement and can choose to organise collection themselves or collection by CSA. Parents can make agreements regarding the way in which child support is paid, for example through periodic cash payments, non-cash payments or a lump sum payment (including by way of property settlement).

Here’s some information on making a child support agreement

There are two types of agreements: binding child support agreements and limited child support agreements.

The main difference between them is that parents are not required to obtain legal advice before entering into a limited child support agreement. These limited agreements can also be terminated if you both agree, and if not, by a court order. Also, the amount of child support payable in a limited child support agreement can’t be less than the amount calculated in your child support assessment.

Find out more about limited child support agreements HERE

Find out more about binding child support agreements HERE

Both these agreements must be in writing and signed by both of you and any other person taking a major role in the child support who is part of the agreement.

Applications from non-parent carers

A non-parent carer can apply for an administrative assessment of child support for a child but they must be an eligible carer of the child and are not living with either parent as a partner  on a genuine domestic basis and don’t have care jointly with a parent of the child. If this situation applies to you, talk to the staff at the CSA.

Estimate what your child support may be with this CALCULATOR

(You should not rely on an estimate as a guarantee for future income or payment.)

When does child support end?

There are a few scenarios when child support ends:

♦ Normally child support will end after your child has turned 18. It is possible for child support to be extended after 18 years of age if you apply for child support to continue until the end of the school year during which your child turns 18. Additionally, if your child has a physical or intellectual disability, extensions may also be possible.

♦ if your child is adopted by someone else.

♦ If your child marries or starts a de facto relationship.

♦ If neither of you is caring for the Child

♦ If you both restart your relationship.
It’s also important to note that just because a child starts working before 18 that doesn’t mean you automatically stop paying child support. However, if you are in a situation where your child is over 18 and still requires support, you definitely have grounds to appeal any assessed amount if that child is earning money.

What if my child needs help but is over 18?

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. However, where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child.

Other resources

The Department of Human Services (Child Support) also provides some handy information for all parents (whether married, de facto or same sex) on how the child support assessment works.

Don’t forget to check out all the great family law solutions we have for you > HERE

If you have a financial agreement

If you both have a financial arrangement in place when your relationship ends, you must stick with what you have agreed to with regards to how your property and financial resources are to be distributed.

As these types of agreements are binding, it is difficult, although not impossible, to change or overturn them. There are some exceptions to this which include where the financial agreement wasn’t made with your full cooperation or where the court finds (after you have made an application to it) that the financial agreement isn’t fair and equitable.

The full list of exceptions are mentioned HERE.

Check out HERE what else Aussie law says about these agreements

You can make a financial agreement at any time during your relationship, even when it is coming to an end.
Having a financial agreement that you both agree on is helpful as it can speed up the finalising of your property and financial settlement, and also keep the matter from going to court.

Here’s a great video from our friends at Legal Aid:

When you don’t have a financial agreement

If you haven’t made a financial agreement or you don’t think you’ll be able to work out one, you can make an application to the court for a property settlement. (You would both normally do this with the help of your lawyers.)

When seeking a decision from the court, the date of your separation is important. You must lodge your application for a property settlement with the court no more than two years from the date of your separation. After this time you need the court’s permission to apply.

It is also an important date because the court can assess the assets, liabilities and financial resources as at that date.

On this point about the end date…

♦ If you have a registered relationship and you have made application to end it, once the 90 day cooling off period is over, the Registrar will officially revoke your relationship.

♦ If you haven’t got a registered relationship don’t worry, but it is advisable that you keep a clear record of the date of separation even if it is by way of email, SMS or even a social media post. And when you make a statement this way keep it very matter of fact as nasty comments can later be submitted to a court particularly when parenting issues are being worked out. Alternately, you could simply advise a lawyer.

What happens if we go to court?

You can generally make a claim for the court to divide property within two years of the relationship breaking down, and sometimes you can even bring a claim if more than two years have passed.

Before the court can determine your financial dispute, you must satisfy the court of all of the following:

◊ You were in a genuine de facto relationship (either registered or not) with your former partner, which has broken down

AND…

◊ You meet ONE of the following four criteria:

• That the period for the de facto relationship is at least 2 years

• That there is a child in the de facto relationship

• That the relationship is or was registered under a prescribed law of a State or Territory

• You’ve made substantial financial or personal contributions which you won’t be adequately compensated for unless the court makes an order.

AND…

◊ You have a geographical connection to the court handling the matter. This means that it’s important (but not essential) that the court be in the State you currently live in, or where your relationship was based.

AND FINALLY…

◊ Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although in some cases you might be able to apply to the courts if your relationship broke down prior to these dates.

Double check with a lawyer as to whether you fit these criteria before applying to the court.

When a court divides property it takes into account both people’s financial and non-financial contributions to the relationship.

And by non-financial I mean it will look at how you divided up household chores, property maintenance and even the contributions you’ve made as parents.

For de facto couples in particular, it will also take into account the amount of money both you and your former partner earned and will consider any differences in your future earning capacity AND your obligations to care for the children.

Take a look at the fact sheet from Relationships Australia, When De facto Relationships Breakdown, which provides more information about whether you are eligible to make an application for financial matters in the Family Court or Federal Circuit Court.

And what can the court do?

The Family Law Court or Federal Circuit Court can order a division of any property that you both own, either separately or together with each other. This includes superannuation (see the section underneath about super splitting) and spouse maintenance.

………

What about my superannuation?

It never fails to surprise me how many people believe that their super is theirs alone and can never be touched even when divorce or the end of a relationship is near. However, when it comes to property settlements, it’s about getting an equitable division of ALL the assets. In a nutshell, everything is on the table.

When it comes to super you do have the option of sorting out how the division or ‘split’ of your super should occur. Couples who have separated are able to make an agreement – known as a superannuation agreement – about how any superannuation that either party will receive is to be split.

(WA is exception here, with de facto couples in Western Australia  not being subject to the superannuation splitting laws.)

By the way, if you don’t get legal advice the super agreement won’t be binding on the trustee of the superannuation fund.

You can both make a superannuation agreement either before or during your de facto relationship, which states how any superannuation will be split on the relationship breakdown. Because superannuation is different to other property, there are special rules about what a superannuation agreement must say. Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding.

And when it is binding, the trustee of a superannuation fund must by law implement your agreement. And binding also means the court is not able to make any orders about superannuation.

Here’s a helpful superannuation info kit provided by the Family Court.

What does my payment splitting agreement have to say?

The payment splitting agreement has to say how the superannuation interest is to be split in order for it to operate effectively. Generally, a payment splitting agreement must specify:

• An amount- known as the ‘base amount’.

• A method for calculating the base amount, or a percentage that is to apply to all splittable payments made in respect of the superannuation interest.

(And your entitlement under any payment splitting agreement depends on what the agreement says.)

What if we can’t agree on super splitting?

If despite all opportunities to negotiate both between yourselves and your lawyers you are both unable to agree, then the court is able to make an order about super as part of any property settlement order. This will state how any superannuation is to be split and that order is binding on the trustee of a superannuation fund who must comply with it.

Take a look at what the court considers when it has to make an order because you can’t agree on super (and other property matters).

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