SeparatingTABLE OF CONTENTS | MAP | CSA HOME Legal mattersKey issues
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Background notes The end of a marriage or relationship is a difficult time for all involved. Many people are surprised and overwhelmed by the intensity of their feelings at these times. Those that did not initiate, or want, the separation feel very shocked. This feeling is often followed by intense anger, and while this is a normal reaction, a risk is that it may inappropriately and unhelpfully motivate the use of the legal system for revenge. Counselling services at, or prior to the time of separation can help people to understand and manage these feelings. The Family Court's counselling and mediation service can help people to come to terms with the changes and problems associated with separation. Other counselling organisations (funded under the provision of the Family Law Act) provide services in each state to assist families when dealing with relationship issues and to manage the changes and difficulties of separation. Accessing counselling and/or mediation services prior to and during separation has many advantages and can greatly assist the parties to move forward and make the necessary new arrangements. Counselling prior to and during separation is likely to:
Choosing a solicitor who specialises in Family Law is an important task for people who are separating. Community legal services usually provide family law information and advice and may also recommend local family law practitioners. At the time of separation, the following matters need to be considered and decisions need to be made about:
The Family Court's counselling and mediation services are available to people even if they do not have a case before the Court. They are available whether or not the partners have decided to seek a divorce. The Family Court Book provides details of the services available and how to go about attending information sessions or making counselling or mediation appointments. Adults Each partner needs to acknowledge that they have continuing responsibilities for their children. Parents also need to appreciate that children benefit from having ongoing contact and continuing relationships with both parents. If parents can agree about arrangements for the care of the children and where the children will live, there is no need for Family Court involvement. Child Support Agency (CSA) CSA has a range of services and information products available to help separated parents manage their child support responsibilities. CSA can help parents work out the amount to be paid by using a standard formula. There is a variety of flexible choices available to parents in the way they pay and receive child support. Parents may be able to make private arrangements. CSA can give advice on how to organise these private arrangements or provide a number of options that best suit individual circumstances if private arrangements are not suitable. Even when the amount of child support is set by CSA or by the courts, parents are encouraged to make payment arrangements that suit them both. A parents' right to agree on amounts of child support is limited if the carer parent is getting Centrelink benefits.
The Child Support (Assessment) Act applies to children:
Under that Act, child maintenance is called child support and is assessed using an administrative formula by CSA.
Family Court orders 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. The Child Support (Assessment) Act does not apply to them. If the parents are not able to agree on arrangements for the children, they can seek help from court, counselling agencies or family law solicitors and may need to ask the court to make orders. The Family Law Act 1975 specifies that unless a court orders otherwise, each parent whether they are married, separated or remarried, has full parental responsibilities for each of their children. Parental responsibility means:
When parents are not able to agree on these matters, parents may apply to the Family Court for a court order that stipulates each parent's responsibilities. These are called parenting orders and relate to:
These replace the orders that used to relate to guardianship, custody and access. The Family Court Book provides detailed information about parenting orders, including how to apply for a parenting order. The Family Court website at www.familycourt.gov.au has information about court procedures and processes. It also has a wide range of brochures and publications dealing with issues related to children, separation, divorce, money, maintenance and property, which can be ordered or downloaded from the site. There are also 'do-it-yourself' kits available on the site which contain all relevant application forms and information. The use of parenting plans can help parents to manage their parental responsibilities following separation, especially if parents are able to agree on the arrangements they wish to have in place for the children. Information about parenting plans can be found on the Family Court website: http://www.familycourt.gov.au/presence/connect/www/home. A 'do-it-yourself' parenting plan kit can be downloaded from this address. It includes the form 26A, which is required to officially lodge the parenting plan with the court.
Children It is known that a child's adjustment to their parents' separation is easier if they are not exposed to any ongoing conflict between their parents. While it is likely that there will be some disagreement and conflict during and following separation, continued conflict (and attempts to involve a child in this) can hinder a child's development and manifest later in behavioural difficulties. Contact and living arrangements need to take into account a child's needs and should be tailored to take into account their age, feelings and family circumstances. As a child grows older and their needs change, arrangements should be reviewed and adjusted. The Family Law Act sets out to ensure that children receive adeqate and proper parenting to help them achieve their full potential, and ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.The exception is when it is or would be contrary to a child's best interests. Extended family Any person concerned 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. This would include grandparents and other relatives. |