Future Directions
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Legal matters
Key issues
- Understanding the legal implications of divorce.
- Learning to negotiate the territory of parenting orders and child support.
- Recognising which aspects of personal and family life are influenced by state/territory laws, rather than the Family Law Act.
Myths
- I don't have a new partner so the will we had before will be okay.
- I didn't have a will before, so why do I need one now?
Background notes
It is important for people to be aware of, but not preoccupied by, legal issues at this stage of the separation journey.
Divorce legally ends a marriage relationship, allowing the ex-partners to remarry, but it does not end their responsibilities as parents.
Divorce is possible where a couple's relationship has 'irretrievably broken down', and they have been separated for 12 months and one day. Detailed information is available from:
- Family Court registries
- The Family Court website at www.familycourt.gov.au
- Community legal centres
- Lawyers in private practice
- The Family Court Book, readily available from newsagents.
A decision not to divorce may be made:
- On religious grounds
- To save money - note that participants can apply for 'non-payment' of divorce application fees if you cannot afford them, and that counselling and mediation services are available to assist the couple to reach agreement on children's issues and property, thus avoiding the need for a court case
- For emotional reasons - this may indicate some unresolved attachment.
CSA has a range of services and information products available to help separated parents manage their child support responsibilities. CSA can assist parents to work out the amount of child support to be paid by using a standard formula. A calculator is available on the CSA website www.csa.gov.au.
If parents separated before 1 October 1989 and all their children were born before that date, they may be able to reach agreement on the amount of child support to be paid. If an agreement cannot be reached either parent can apply to a court exercising Family Law jurisdiction for a child maintenance order.
Children who were born after 1 October 1989, or have a sibling born after that date, or whose parents separated on or after that date are covered by the Child Support (Assessment) Act. Under that Act, child maintenance (called child support) is assessed according to an administrative formula by CSA, not a court.
There is a variety of flexible choices available to parents in the ways they pay and receive child support. Parents may be able to make private arrangements. CSA can advise on how to organise these private arrangements or provide a number of options that best suit individual circumstances.
There are fact sheets available from CSA to assist parents with identifying what child support options are available. Parents can be provided with fact sheets called 'Information for separated parents' and 'Changes you need to tell the Child Support Agency about'.
Adults
As they adjust to separation, adults will be balancing their parenting responsibilities with developing their own lives. Clear parenting arrangements with their former partner will alleviate stress.These can be:
- Negotiated informally by the parents
- Negotiated with the assistance of counsellors or mediators
- Formally decided by the family court as a parenting order.
If people are not married, property disputes are subject to state and territory laws and therefore it is essential to seek legal advice about the relevant law.
Children
It is important to remember that continued conflict, and attempts to involve children in this, can hinder children's development and manifest later in behavioural difficulties.
Arrangements need to be tailored to their needs and take into account their age, feelings and family circumstances.
As children grow and their needs change, arrangements need to be adjusted.
Parenting plans may need modification to ensure they continue to be in the child's best interests. This is because:
- Children grow and their needs change.
- The availability of a parent changes.
- Where the child will go to school
- Issues relating to religion or sport
- Issues relating to a child's welfare and development (such as discipline)
- A child's medical treatment.
A child can travel overseas as long as they have a passport. Australian passports will only be issued for a child with the consent of both parents. If one parent does not consent, the other may apply to the Family Court for an order that the passport be issued. Once the child has a passport, a parent would have to seek an order preventing the other parent from taking the child outside Australia.
There is no law saying that parents must call their children by the name that is shown on their birth certificate. However, it is unlawful to use a different name for criminal purposes. If a parent changes a child's name by custom, the other parent can seek an order that they revert to the old name. The Registrar of Births, Deaths and Marriages (or equivalent authority) will not change the Register details without consent from both parents, or a court order.
Extended family
Grandparents or anyone involved with the care, welfare and development of a child can apply for a parenting order covering issues such as residence and contact arrangements after the parents have separated.