RepartneringTABLE OF CONTENTS | MAP | CSA HOME Legal mattersKey issues
Myths
Background notes Issues about which parent the children will live with are likely to resurface at this time. It is not uncommon for children to make residency shifts at this stage if they feel uncomfortable or threatened by their parent's new relationship. Children may express a wish to spend more contact time with their other parent, or even to change residence. Parenting agreements may need to be renegotiated and Centrelink entitlements reassessed. Child support responsibilities for children of a prior relationship are not affected by repartnering. However, spousal maintenance may be affected by repartnering. Sometimes one or both of the adults in the new relationship may want the children and the new partner to take the same family name. This is often part of an attempt to give an instant sense of family identity, but it can cause distress for children and the other parent if they are not consulted and feelings and preferences are not taken into account. Unresolved relationship tensions with an ex-partner may flare up again at the time of repartnering. Where a parent has experienced family violence or had concerns for the safety of the children with the other parent, the impact of these tensions may need to be addressed. Some interesting facts:
A marriage relationship ends legally with divorce. This allows the ex-partners to remarry, but it does not end their responsibilities as parents. If repartnering occurs soon after separation, before property settlement and divorce have been finalised, the beginning of the new relationship may be complicated. 'When a parent forms a new relationship it may change parenting arrangements but it doesn't change parental responsibilities.' If children change residence at this time, or if the couple have a child together this will generally have some impact on child support. Many couples live together before remarriage without necessarily considering the legal impact of this. The Family Court can only deal with disputes about the property of married partners. State and territory laws apply to property disputes if a couple is not married and these vary in each jurisdiction. (The Family Court website at www.familycourt.gov.au is a useful reference on this issue.) When repartnering occurs it is likely that wills may require revision by all adults in the immediate and extended family. Family consultations about parental intentions may be useful at this time to prevent future disputes. Wills are governed by state and territory laws, and legal advice is essential regarding the effect of:
Legal advice is also essential regarding updating beneficiaries of superannuation and insurance policies. Adults The Family Law Act emphasises that although couples may choose to separate, all parents are 'parents for life', and parents must share full responsibility for each of their children. CSA acknowledges that the emotional, financial and legal circumstances of many parents who repartner may create difficulties (for example, in managing the competing needs of first and second families). CSA can assist parents with identifying what child support options are available. Parents can choose to make private child support arrangements. CSA can advise on how to organise these private arrangements or provide a number of options that best suit individual circumstances. Parents' right to agree on amounts of child support is limited if the carer parent is getting Centrelink benefits. If private payments are not a suitable choice then appropriate collection by CSA can be arranged. Even if the amount of child support is set by CSA or by the courts, parents are encouraged to arrange payments that suit them both. Fact Sheets are available from CSA to provide information on options available to parents.
Joe, aged 42, has been separated for two and a half years, and has been living with Anna (age 40) and her three young children for one year in their small rented home. Joe has been slowly developing relationships with them. Anna works part-time during preschool. Her children rarely see their father and are looking to Joe for 'fathering'. Their father is in and out of work and his child support payments are infrequent. Joe pays child support to his ex-wife for their two teenage children who live in the formerly-owned joint home, in a different part of the city. Joe sees his children as often as he can. Overnight visits are crowded and sometimes tense and his children are coming less often. Joe and Anna are both finding their new family tough-going. They would like to have a child and buy a home together, but are struggling to make ends meet already. Some parents with whom the children live may link prompt payment of child support with the other parent's 'right' to contact visits.While this is an understandable reaction, parental responsibilities are not conditional on money. There are other actions open to a carer parent such as to renegotiate contact arrangements or apply for CSA to collect the payment. 'A parent is not legally entitled to refuse or frustrate a child's contact with the other parent when child support payments are late.' For some people, the new partner's legal relationship with their partner's children is unclear. The facts are that:
Parents should discuss whether to authorise step-parents to assume certain aspects of caring for stepchildren. For example, taking children to the doctor, collecting children from school. One day my stepson's school rang me at work. They had been unable to contact his mother and he needed medical attention for a badly injured thumb. I had to take him to hospital where I signed the medical form for his treatment. I guess this was not questioned because he had the same family name as mine. I realised later that I had no authority to do this. State and territory laws apply to many issues relating to families, including wills, changing names, medical powers of attorney and family violence. State and territory laws rather than the Family Law Act apply to property disputes between unmarried couples, including those with children. State and territory laws also apply to couples in same-sex relationships. These laws can differ in each jurisdiction and legal advice is essential. Children Children can easily feel caught in the middle of disputes about residency and contact, which could lead to feelings of distress and powerlessness. Any decisions must have the best interests of the children in mind. This includes discussing with the children any arrangements made, taking into account their age, feelings and the circumstances of each child. Adoption has been used as a means of changing a child's name. Following adoption, the child and the adoptive parent have the same legal relationship that a parent has with a biological child. Particular care should be taken to ensure this is in the child's interests. Adoption changes a child's legal identity permanently, which affects other things, such as inheritance. Adult children may be apprehensive when a parent repartners, as they see that their potential inheritance may be changed by their parent's new commitment. Again, it is important to urge people to seek legal advice. Extended family A step-parent, grandparent or anyone concerned with the care, welfare and development of a child may apply to the Family Court for a parenting order for contact with the child. This situation may arise after separation, divorce or the death of the child's biological parent, or after any subsequent separation and divorce. The significance of the 'social parent' role is growing as the number of repartnered families increase. The role refers to situations where an adult who is not biologically related to a child, assumes some of the responsibilities of a biological parent. It is a complex area of the law and these arrangements are often informal. In many cases the child's parents have not discussed and agreed upon the extent to which the new 'parent' may assume responsibility for the child, or make decisions about the child's welfare. Adults in the new family may want to change the children's names in an attempt to fast-track family consolidation.This may be counterproductive if it ignores children's wishes. It is not a decision to be made lightly on a child's behalf; children often do not understand the significance of the decision to relinquish their family name until they are adults. It should be recognised that for some children, one of the few tangible links they have with an absent father is the shared surname. It may also harm the relationship between the child's contact parent the residing parent, the new partner and extended families.The Family Law Act makes it clear that the main consideration must be the best interests of the child. 'About a year after I had met my stepson William, he asked if he could call me dad. His own father had gone to live overseas after he left William and his mother three years before. A few months later when his mother and I planned to marry (she was pregnant with our first child) she decided to take my family name. William then asked if he could change his name to be the same as the rest of the family. We thought this was a great idea. Not only would William be part of the family but it would also give us a real sense of unity. I didn't anticipate the reaction we got from his paternal grandparents. They were devastated. Ever since that time they have continued to write to William using his biological father's name.' |