Talk to your partner about how you will care for your children before you separate.
It is highly desirable that you and your partner reach and maintain an amicable arrangement in relation to the care of your children. When negotiating the arrangements, both parents should be prepared to compromise what they perceive as the ideal arrangements for the sake of resolving the matter.
In this regard it is imperative that you maintain a line of communication with your partner either directly or through an intermediary such as a relative, friend or counsellor. You can’t telephone a Family Court judge if you’re running late for pick up or drop off!
The advantages of reaching an agreement are:
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the stress and worry caused by separation will be kept to a minimum
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you and your partner are more likely to have a constructive on-going relationship
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the effect of separation on the children, yourself and your partner will be minimised
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you will avoid the significant cost, time and anxiety associated with Family Court proceedings
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you and your partner will retain control over the arrangements for the children.
An agreement as to parenting arrangements can be as simple or as complex as you like. Generally it is best to keep it fairly simple.
For practical reasons and for the sake of stability it is often agreed that children will live mostly with one parent and spend the remaining time with the other parent and other significant family members.
Acknowledge and agree with your partner that it is likely the arrangements will need to change over time as your circumstances and the needs of the children change. For example, you could agree to review the arrangements every 2 or 3 years.
Once you have reached an agreement with your partner you should consider formalising it. The simplest way of doing so is by way of Family Court Consent Orders. The process is generally quick and straightforward. The Court provides a form for this purpose which requires certain background information about the parties and the children. Annexed to the application is a minute setting the terms of the agreement.
The advantages are:
Without court approval either party can renege on the deal.
You don’t have to formalise any agreement regarding parenting matters. Many parents choose to leave their agreed arrangements on an informal basis.
Mediation is a method of dispute resolution which brings the parties together in a neutral environment for the purpose of promoting discussion and settlement of disputes.
Mediation works best if both parties have obtained advice about their legal entitlements – ie where they stand on the issues in dispute.
You may wish to consider the mediation services offered by the following organisations:
The Family Court of Western Australia can assist parents to resolve parenting disputes, whether the parents are married or not. An application can be made by either parent or other interested person – eg a grandparent.
In our respectful opinion, the process offered by the Family Court is not a particularly effective way of resolving disputes over the arrangements for the care of children. The Court process should be used only as a last resort.
The Court has the power to make orders relating to the care and control of children under the age of 18 years. This includes orders relating to the long-term care, welfare and development of a child (often referred to as guardianship), matters relating to the daily care, welfare and development of a child, such as who the child resides with and when and on what basis they have contact with the other parent, and orders in relation to any specific issues associated with the welfare of a child.
The Family Law Act enshrines certain principles to guide the court in making decisions about children, such as:
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the best interests of the child are always the paramount consideration
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children have the right to know and be cared for by both parents
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children have a right of contact on a regular basis with both parents and with other people significant to their care
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the wishes of the child (as best the Court is able to ascertain those wishes) will be taken into consideration; however, these wishes will always be seen by the Court in the context of the age and level of maturity of the child
The Court has discretion in these matters; and this brings to mind one of the risks of going to Court in this context - ie that the Court may impose on you and your partner an arrangement that doesn’t actually suit either of you.
The consistent line taken by the court has been to encourage as far as reasonably possible the development of healthy relationships between children and both parents.
If you are going to use the Court to resolve these matters, look very critically at the benefits versus the costs of engaging a lawyer to represent you. If you are able to take a reasonably objective view of the issues and can express yourself clearly you should consider representing yourself. The Family Court's web site has helpful information.
If you have reached an agreement with your partner and would like to formalise it, we offer a fixed price service for consent orders.
Otherwise, we suggest that you start with a no-obligation initial consultation (from $99) at which we can give you a reasonable idea of the likely future charges.
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Arrange an initial consultation
Find out where you stand at an initial consultation with one of our lawyers.
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Visit initial consultation for more information
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Arrange an appointment now: use our online booking request or telephone 9220 4432 (1800 018 845 freecall from regional Western Australia) during business hours. If you're not booking online, you could save time at the consultation by completing our Initial Consultation Form (PDF document) and bringing it with you to the consultation
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If you are separating you must give consideration to the financial arrangements for your children
The child support scheme in Australia is administered by the Child Support Agency (Agency).
The scheme provides for an administrative assessment of child support which generally creates a liability for the non-custodial parent to pay child support. The assessment is based on a formula which takes into account many factors including the incomes of both parents and the amount of time the children spend with each parent.
The Agency’s web site has a useful child support calculator. The calculator will give you an estimate of the amount of child support you can expect to pay or receive through the Agency.
It is open to you or your partner to ask the Agency to issue a child support assessment; however, if both parents agree, you may have a private child support arrangement either by:
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Child support is often an area where parents fall into conflict. Many parents find the Agency a useful intermediary because it helps parents manage their responsibilities.
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Many parents prefer to have the Agency involved because it’s objective and impartial and, once an assessment has issued, both parties know what their rights and obligations are.
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The administrative assessment of child support creates a fair outcome in the vast majority of cases.
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Some parents who pay child support prefer to direct their payments in a way that has a direct benefit for their children, for example, for school fees, health insurance or other expenses. This is only possible through a private arrangement.
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you and your partner will retain control over the arrangements for the children.
Contact the Agency for more information
Child support agreements may provide for payment of periodic amounts and also payments to third parties which benefit the children – for example school fees or health insurance.
There are two types of agreements that determine or alter the amount of child support to be paid; namely limited child support agreements and binding child support agreements.
Once signed these agreement must be lodged at the Agency for registration.
Limited Child Support Agreements
The key features of a limited child support agreement are as follows:
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Limited agreements are intended to give parents some flexibility to make child support arrangements without committing themselves to a long term arrangement.
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An administrative assessment must be in place before the Agency will accept a limited agreement.
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The annual rate of child support payable under the agreement must be at least the assessed annual rate of child support.
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If both parties wish to end a limited agreement they can do so by making a new agreement or by simply agreeing in writing to end the existing agreement.
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The agreement can also be terminated unilaterally by either party if the notional assessment (which is used to calculate the amount of child support that would be payable if the agreement had not been made) changes by more than 15% in circumstances not contemplated by the agreement, or at any time after 3 years. If both parties are happy with the agreement in these circumstances it may remain in place.
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Given the relative ease of ending limited agreements, they will not generally be an appropriate mechanism for arrangements that are intended to form part of a longer term settlement.
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Legal advice is not required to be obtained by the parties prior to entering into a limited agreement.
Binding Child Support Agreements
The key features of a binding child support agreement are as follows:
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Binding agreements are intended to provide a high level of certainty and finality about child support arrangements for parents.
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An administrative assessment must be in place before the agreement is accepted by the Agency, except where the agreement provides for the crediting of a lump sum payment. The terms of a binding agreement can be for more or less than the relevant formula assessment for child support.
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Binding agreements must contain a statement that each party obtained independent legal advice before the agreement was signed. Each party’s legal practitioner certifies, in an annexure to the agreement, that legal advice was given as to the effect of the agreement on the rights of that party and the advantages and disadvantages of making the agreement.
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If both parents wish to end the agreement, they must again seek independent legal advice and make a formal termination agreement, or a new binding agreement that terminates the previous agreement.
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If only one parent wishes to end the agreement, they may seek a court order to set the agreement aside, but such an order will be available only in the following very limited circumstances:
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the court being satisfied that the agreement of one party was obtained by fraud or failure to disclose material information, or through undue influence, duress or unconscionable conduct such that it would be unjust not to set aside the agreement; or
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the court being satisfied the exceptional circumstances have arisen since the agreement was made, such that a child or applicant will suffer hardship if the agreement remains in place.
Family Tax Benefit Part A
Entitlements to Family Tax Benefit Part A will be assessed on the amount of child support that would have been paid if the agreement had not been made. This applies equally to limited and binding child support agreements, regardless of the value of the agreement.
We can assist you in drawing up a child support agreement.
We suggest that you start with a no-obligation initial consultation (from $99) at which we can give you a reasonable idea of the likely future charges.
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Arrange an initial consultation
Find out where you stand at an initial consultation with one of our lawyers.
-
Visit initial consultation for more information
-
Arrange an appointment now: use our online booking request or telephone 9220 4432 (1800 018 845 freecall from regional Western Australia) during business hours. If you're not booking online, you could save time at the consultation by completing our Initial Consultation Form (PDF document) and bringing it with you to the consultation
-
Tips on how to get the best value out of our services - visit doing business with us
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If you have previously made a Will, chances are you've left everything to your partner. If you don't have a Will the law assumes that he or she is your major beneficiary until you are divorced. We offer a fixed-price service for Wills.