Obtaining the best outcomes for you and your children through our experience and skill. James Noble Law Brisbane employs Accredited Specialist Family Lawyer; James Noble. The best Family lawyers Brisbane has to offer to help you with your child custody problems.
Separation and divorce can often be the most traumatic and difficult times for any adult. There is particular hardship with those couples with children. In these circumstances, the Family Law Court considers the best interests of the child the most important issues. Importantly, your children have the right to spend time with both parents, no matter what your former spouse or partner has to say.It must be considered what the law says about parenting arrangements and how the separation will affect future contact with the children. At all times, you should be fully informed about your legal rights and position as well as those of the children involved. We can provide accurate advice regarding your child’s entitlement to spending time with you and help you get what you want in that regard. Being child-focused is one of our highest tenets. James Noble Law can support you through the toughest time of yours and your children’s lives at a very stressful, emotional, and trying time. We can help with counselling and psychological help if necessary, with our network of highly regarded professionals in these fields. If you are separating obtain full details about the parenting of your children, your rights, and obligations. To explain some of the key areas surrounding child custody, let’s unpack some of the commonly used phrases and meanings such as ‘equal shared parental responsibility, ‘significant and substantial time’, and ‘major long-term decisions’. You need to understand these concepts to avoid compromising your legal rights. When necessary, we’ll take steps to obtain you legal protection in situations involving family violence. A typical parenting order made by the Family Law Court will involve equal shared parental responsibility. This essentially means that parental responsibility is shared between both parents, and, one parent is unable to make decisions without communicating with the other. If a parenting order is made by the Family Law Court for a party to have sole parental responsibility, that party does not need to consult the other parent in the decision-making process. In situation where the parties have equal shared responsibility, there are several “core” areas which the parents must communicate and ultimately agree on which affects the child or children. These core areas are known as the “major long-term issues”. Whilst the definition of “major issues” is not meant to be exhaustive, the five most common areas relate to the child’s:
Whilst it is common for the Court to order major long-term issues require consultation between both parents before a decision is made, this does not typically extend to govern the day-to-day needs and issues relating to the children. For instance, one parent is not required to consult the other regarding the best route to drop the child of at school, what the child eats or what the child’s routine will be, as these are not considered major long-term issues. Not only does this allow parents to have small freedoms in relation to the raising of their child, but also prevent the parents from “over-communicating”, especially where the parties recently had drawn out Court proceedings. Usually the parent who has the primary care of the child/ren on that day will be responsible for decisions that relate the day-to-day welfare of the child. If the Court does order the parties have equal shared responsibility and a parent relating to that order fails to make a genuine effort to involve the other with the major long term issues of the children, that parent may be in breach (contravention) of the Parenting Order. Despite one parent’s feeling towards the other, if Court Orders are in place and provide for equal shared parenting responsibilities, one parent is unable to ignore these orders. The law regarding arrangements for children is complex. Even if relations with your former partner are amicable, it is advisable to obtain legal advice, so each party fully understand their rights, obligations and liabilities regarding legal considerations which apply to children’s arrangements. We can assist you across the range of parenting matters, including: Relocation and removal of children from care;
Our priority is to facilitate an agreement between the parties through negotiation or mediation which we will guide and support you through. If an agreement is unable to be reached, we will recommend and pursue litigation and arbitration options pursuant to your instructions. Despite initiating court proceedings on your behalf, we will endeavour to settle your matter amicably opposed to bringing a court action to its finality. Importantly, if an agreement can be negotiated between the parties without the involvement of litigation or court proceedings, that agreement should be contained in a legally binding document such as Consent Orders. For more information on this area, click here. Alternatively, you may seek to have the agreement provided for under a Parenting Plan, however, this agreement is not registered with the Court and is therefore unenforceable at law. A Parenting Plan approach would likely be appropriate in circumstances where the relationship with your former partner is amicable, or, you and your former partner wish to maintain flexible arrangements for the children in the future. We can assist you during this process by:
Since each family is unique, and the best interests of the child often differ from case to case, there is no one set of uniform arrangements provided for under the Family Law Act 1975 (Cth). Instead, the Family Law Court actively encourages parents to reach agreements regarding parenting arrangements for their children outside of court, provided the outcome represents the best interests of the children. If it becomes necessary to go to Court, the Court must have that same regard when determining what Orders,it will make for children. When determining child custody arrangements, the Court will account for the primary consideration of the child’s best interests which include:
In addition to the primary considerations listed above, the Court will also examine secondary considerations pursuant to legislation, which include:
Before imposing an order, the Court will always consider what parenting arrangements are in the best interests of the child. In determining the best interests of the child, any views expressed by the child will be taken into consideration. During this process, the Court will place appropriate weight to these views depending upon various factors such as the child’s maturity and understanding of the situation. As children of a mature age are more likely to grasp the concepts of separation, split child custody, and parenting arrangements, the Court is likely to place far more weight to the views of children between the age bracket of 14 – 18 years. Studies indicate children within this age bracket are more likely to comprehend complex situations such as parenting arrangements as opposed to children less than 10 years. Although the current law encompasses the views of all children under the age of 18 years, the Queensland Family and Child Commission has recently proposed recommendations to the Australian Law Reform Commission that the views of younger children should be considered with more weight. The recent submission made to the ALRC consider child’s views are significant, regardless of age or maturity. The submissions seek to further promote the meaningful engagement younger children have with the parenting arrangement process. These notions have been publicly backed by child protection organisations such as Bravehearts and UnitingCare who believe the voice of the child need to be heard in all situations. Despite having practical applications, these submissions may be premature in placing significant weight to infantile children’s views. Family Law Experts have indicated reform of this area may lead to parenting arrangements which may seem in the child’s best interests, but ultimately fail to address underlying concerns such as manipulation and bribery. Social studies indicate many children between the ages of 8 – 12 show preference towards the “fun” parent, whilst the parent who enforces disciplinary is viewed negatively. In cases involving a 50/50 custody dispute, if the views of the child are given more weight, this could be unfairly detrimental to one parent in the proceedings. Therefore, despite the child having a negative view of the disciplinary parent, enforcement of punishment is likely to be in the child’s best interests. This is supported by studies indicating young children are often unconsciously influenced, or in some cases manipulated, by one parent proving excitement and gifts. If a child in this situation was asked which parent they would prefer (without the necessary maturity and understanding) the answer may indicate a decision they do not fully comprehend, and, one which is not within the child’s ultimate long-term interests. To avoid unnecessary manipulation and bribing of children by parents, emphasis may be placed on expert third parties which could assist the Court in determining the underlying views of the child. Persons such as Family Report Writers, Independent Children’s Lawyers, Psychologists or Counsellors can be integrated into this process to ensure the child’s views are understood. This integration would also act as a safeguard to prevent parenting orders from being influenced by wrongly founded child views resulting from bribes or manipulation. One of the biggest issues facing Multi-national Australian families is parenting arrangements and child custody. The 2011 Census suggests nearly half of the Australian population has one parent who was born in another country. As Australia has one of the highest intermarriage rates and divorces in the world, this often leads to international child custody disputes. In circumstances where parents are multi-national and have sufficient connections or family members in another country, the first and foremost consideration should be the child remaining in the Australian Commonwealth jurisdiction until such time Parenting Plans, Consent Orders or Parenting Orders are finalised. Under Australian law, the Family Court will not allow one parent to move their children interstate or overseas against the other parents’ wishes. If one parent attempts to do so, there are numerous methods of preventing this from happening. Some of the most common methods include restraining passports to be in the possession of the parent through surrendering them to the Court, or,seeking orders which restrain the removal of children from Australia by requesting the AFP to assist Airport Watch. However, if children are born overseas to a couple, there are no steadfast rules determining where the children should live in the event of a partnership separation. The recent story of Melissa George is an example of how international relationships can go southward quickly. In the case of George, the children were born in France to a French father and therefore have citizenship in the country. Therefore, unfortunately for Melissa, the court is unlikely to impose an order allowing for them to be removed. Another famous example is the situation involving Sally Faulkner and the Channel 9 TV Crew in 2016. Following a televised and filmed kidnapping attempt by Faulkner the husband moved both children to Lebanon, where the Lebanese Judge gave the husband full custody of the children. This acts as an important reminded to avoid taking circumstances into your own hands, regardless of the seriousness of the situation. The Family Law Court will look gravely upon a parent who attempts to purposively removes, abducts or kidnaps a child from the other parent. This may result in a serious fine being imposed or adverse orders for that parent to not have further contact with the child. If your child or children have been taken outside Australia without your consent or have not been returned to Australia, you should immediately contact the Commonwealth Attorney-General’s Department for assistance. Although Australia has an agreement with some countries to return abducted children to their country of usual residence under the Convention on the Civil Aspects of International Child Abduction, if the child is not within a party to this convention, the Court is unable to enforce the children’s return. If you are having an out-of-hours emergency regarding child abduction, you should contact the Court on 1300 352 000 to make an application. If the children have not been abducted but you have a reasonable suspicion an attempt may occur in the near future, you should contact legal support to clarify your position or contact the Australian Passport Information Service on 13 12 32 to find out more information regarding child alerts. Article Source: Child Custody
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TAKING IT TO COURT? CONGRATULATIONS! YOU AUTOMATICALLY QUALIFY FOR A FAMILY REPORT.
It is inevitable that parents who institute proceedings in the family court involving their children, will if the parenting issues relating to the children are not resolved, be required to attend a conference and consult with initially a family consultant attached to the court, and if the matter proceeds further in the court process with a family report writer. Family reports by a family consultant and a family report writer, after the required consultation, will be provided to the Judge hearing the matter. Recommendations will be made in the reports on the future parenting of the children. Accepting Family Report Recommendations The Judge is not required to accept such recommendations in their entirety. However, great weight will be placed on the recommendation by the Judge. Such Family report recommendations could deal with:
The report writers can, if the children are age-appropriate and in most cases do, interview each child in the presence of each parent or both parents. The interviewing writer will be observing the interaction between the parents and the children. It will be of assistance to the report writers if the parents and children are properly informed of the process and how best to present themselves in the interviews with the report writer. Tips for helping kids through it Some tips on preparation of the children for the purpose of the interviews:
The report writer has the ability to seek the information necessary in the most appropriate manner. On the day of the interview The report writers are skilled in dealing with the children, the parents in relation to their family issues. They will in most cases explain:
For more detailed information or help with the process of separation, please contact Brisbane family lawyers. Article Source: Family Report Did you ever think about your Child Views on Parenting Arrangements for the 0-4 year age group?3/31/2021 How the Child’s View Affects Custody Disputes?
Before imposing an order, the Court will always consider what Parenting Arrangements are in the best interests of the child. In determining the best interests of the child, any views expressed by the child will be taken into consideration. During this process, the Court will place appropriate weight on these views depending upon various factors such as the child’s maturity and understanding of the situation. As children of mature age are more likely to grasp the concepts of separation, split custody, and parenting arrangements, the Court is likely to place far more weight on the views of children between the age bracket of 14 – 18 years. Studies indicate children within this age bracket are more likely to comprehend complex situations such as parenting arrangements as opposed to children less than 10 years. Child support becomes a serious issue when families separate and follow the parenting agreement. Areas of Proposed Reform Parenting Arrangements for the 0-4 year age group Although the current law encompasses the views of all children under the age of 18 years, the Queensland Family and Child Commission has recently proposed recommendations to the Australian Law Reform Commission that the views of younger children should be considered with more weight. The recent submission made to the ALRC considers a child’s views are significant, regardless of age or maturity. The submissions seek to further promote the meaningful engagement younger children have with the parenting arrangements process. These notions have been publicly backed by child protection organizations such as Bravehearts and UnitingCare who believe the voice of the child needs to be heard in all situations. Do These Changes Have a Downside? Despite having practical applications, these submissions may be premature in placing significant weight on infantile children’s views. Family Law Experts have indicated reform of this area may lead to parenting arrangements that may seem in the child’s best interests, but ultimately fail to address underlying concerns such as manipulation and bribery. Social studies indicate many children between the ages of 8 – 12 show preference towards the “fun” parent, whilst the parent who enforces discipline is viewed negatively. In cases involving a 50/50 custody dispute, if the views of the child are given more weight, this could be unfairly detrimental to one parent in the proceedings. Therefore, despite the child having a negative view of the disciplinary parent, enforcement of punishment is likely to be in the child’s best interests. This is supported by studies indicating young children are often unconsciously influenced, or in some cases manipulated, by one parent proving excitement and gifts. If a child in this situation was asked which parent they would prefer (without the necessary maturity and understanding) the answer may indicate a decision they do not fully comprehend, and, one which is not within the child’s ultimate long-term interests. How Can These Pitfalls be Avoided? To avoid unnecessary manipulation and bribing of children by parents, emphasis may be placed on expert third-parties which could assist the Court in determining the underlying views of the child. Persons such as Family Report Writers, Independent Children’s Lawyers, Psychologists, or Counsellors can be integrated into this process to ensure the child’s views are understood. This integration would also act as a safeguard to prevent parenting orders from being influenced by wrongly founded child views resulting from bribes or manipulation. Article Source: Parenting Arrangements What Happens if a Party breaks Parenting plan or arrangement and Does Not Return the Child?
If you are concerned that your child may not be returned to your care after spending time with the other parent, there are some simple things you can do to try and avoid this situation, or, make it easier for yourself to recover the child in the event this does occur. Make Parenting Arrangements in Writing If you have not yet agreed to a parenting plan with the other parent, or are awaiting mediation, you should try and make arrangements in writing which specify the date, time, and where changeovers will occur. When putting this information in writing, not only does it become easier for the parties to follow, but it also provides concrete evidence in the event the other party does not comply with the original agreement. This also has an added bonus of demonstrating to the Court that you have intentions of co-operating with the other party in the parenting plan of the child. What Happens if the Child Is Withheld? If there is an agreed parenting arrangement, or if the other party simply withholds the child from your care, you can then proceed with a Recovery Order. The Court does not look favorably on parties who unilaterally change the child’s living arrangements without the prior consent of the other party. This is where written agreements and evidence can make this process easier. Depending on whether the recovery is urgent, the process of returning the child to your care can take between one or two weeks. Often times the mere filing of a Recovery Order is enough to make the other parent realize they are unnecessarily withholding the child and return them to your care. However, if the child continues to be withheld from you, the Court has the power to make an Order which provides authority to the police to recover your child from the other party. Importantly, cases that require police involvement are extremely rare and usually, the situation is defused before this occurs. If you require any advice regarding the above information or seeking to apply or defend a Recovery Order, call us today to speak with one of our accredited family law specialist or email your query to [email protected] Visit Main Article source - Bring Back Your Kids by Parenting plan or Agreement Biggest Issue on Child Custody Australia
Child Custody Australia has One of the biggest issues facing Multi-national Australian families is parenting arrangements and custody of children. The 2011 Census suggests nearly half of the Australian population has one parent who was born in another country. As Australia has one of the highest intermarriage rates and divorces in the world, this often leads to international child custody disputes. Under Australian law, the Family Court will not allow one parent to move their children interstate or overseas against the other parent’s wishes. If one parent attempts to do so, there are numerous methods of preventing this from happening including passports to be surrender to the Court, or orders restraining the removal of children from Australia by requesting the AFP to assist Airport Watch regarding the matter. Child Custody Australia for Children Born Overseas However, if children are born overseas to a couple, there are no steadfast rules determining where the children should live in the event of a partnership separation. The recent story of Melissa George is an example of how international relationships can go southward quickly. In the case of George, the children were born in France to a French father and therefore have citizenship in the country. Therefore, unfortunately for Melissa, the court is unlikely to impose an order allowing for them to be removed. Another famous example is the situation involving Sally Faulkner and the Channel 9 TV Crew in 2016. Following a televised and filmed kidnapping attempt by Faulkner, the husband moved both children to Lebanon, where the Lebanese Judge gave the husband full custody of the children. What Can You Do if The Child is Overseas? If your child or children have been taken outside Australia without your consent or have not been returned to Australia, you should immediately contact the Commonwealth Attorney-General’s Department for assistance. Although Australia has an agreement with some countries to return abducted children to their country of usual residence under the Convention on the Civil Aspects of International Child Abduction, if the child is not within a party to this convention, the Court is unable to enforce the children’s return. If you are having an out-of-hours emergency regarding child abduction, you should contact the Court on 1300 352 000 to make an application. If the children have no been abducted but you have a reasonable suspicion an attempt may occur in the near future, you should contact legal support to clarify your position or contact the Australian Passport Information Service on 13 12 32 to find out more information regarding child alerts. Article Source: Child Custody Australia Do Grandparents Have Legal Rights in Australia?
Grandparents rights qld in Australia: The Family Law Act states the importance of children having a relationship with grandparents and other significant family members. Although The Family Law Act ( GRANDPARENTS EXTENDED FAMILY ) does not give Grandparents rights to see their grandchildren, it does provide the right to seek Court Orders which would allow them to spend time with the children. In some situations, the orders sought from the Court may include an aspect of the children living on a permanent basis with the Grandparents. What is the Position under the Family Law Act? The Family Law Act provides the protection of the children is paramount. This principle applies Australia-wide and primarily focuses on the rights of children to be cared for by parents, their welfare, and other such development. This also includes the children’s relationship with their grandparents. The factors used by the Court in determining the best interests of the children are set out in section 60CC of the Family Law Act. This is also commonly referred to as ‘Additional Considerations’. The reference to Grandparents rights is mentioned multiple times throughout this section, with the Court placing significant consideration on the following factors:
Whilst there are other factors that the Court may consider relevant, the final decisions will ultimately be factors that directly relate to determining the best interests of the children. A common situation where the Court is likely to grant the Grandparent of a child with parental responsibility is where the child has been subject to harm/abuse or has a significant risk of further harm/abuse, or where a parent of the child has a serious addiction to alcohol/drugs and no longer has the capacity to care for the child. Court Applications on Grandparents Rights In these situations, the Court may hear an application made by a Grandparents to have the child enter their care either temporarily or permanently. However, a court application would be the last resort, with mediation being a suggested entry point in regard to proceedings. Before you begin seeking time or arrangement for a grandchild, you should seek legal advice based on your position. Or if you face any kind of other issues like Parents rights against grandparents, visitation rights for grandparents, grandparents rights to access grandchildren, fighting against grandparents rights, etc just contact us. If you require advice on any of the information outlined above, please contact us on 1800 662 535 or email us at [email protected] to discuss your options. Our team of family law experts can help you find a solution. Article Source: Grandparents rights No! The Family Court is powerless to make orders prior to the birth of the child. As a family lawyer, I often receive inquiries from soon-to-be fathers wanting to know their rights in relation to their unborn child.
In a recent matter, the father gave instructions in relation to his partner’s pregnancy. The expected date of birth of the child was three weeks from the date I received instructions. The father had concerns about the mental state of the mother. She was abusive in his relationship with her. She also made threats of killing the child once the child was born. He had real concerns for the safety of the child and wanted orders taken out to protect his child. He wanted to know his rights in regard to his unborn child. The Family Law in relation to an unborn child is fairly limited. There have only been a few cases dealing with unborn children. In a 1988 family law case, Maree F (in utero) the Judge expressed grave concerns about the mother’s mental health and her ability to properly care for her child and to care for the fetus while she was pregnant. Even though the Court had grave concerns for the welfare and protection of the child, the Court had no power or jurisdiction to make orders in regard to the wellbeing of the unborn child. The definition of “child” in the Family Law Act does not make reference to an unborn child. The Family Court only has jurisdiction in relation to a child after the birth of the child. Judge Linden Meyer in the 1989 case of In the marriage of F. F held that the unborn child has no legal right to be born which the family court could protect. What is Section 60CC? Section 60CC of the Family Law Act places the welfare of the child as the paramount consideration. The protection of the child from harm is a paramount consideration. However, this relates to a child after birth. Can the Court make orders to protect the child upon the birth of the child? In regard to the cases referred to the Court had no power to order injunctions restraining the mother of the unborn child from causing harm or risk to the fetus. The Court is powerless to make orders prior to the birth of the child. Psychology Reports There are a number of steps our client can take to protect his unborn child. If possible, he could obtain a report from a psychiatrist or psychologist who has been treating the mother for her mental illness which would hopefully indicate the concerns that our client has for his unborn child. He could then provide this report and other evidence of the mother’s health issues to the Department of Children’s Services and request that they intervene immediately upon the birth of the child and have the child placed in foster care. Application To Family Court Secondly, our client could prepare his application to the court seeking urgent orders being made in relation to the child upon the child’s birth. Evidence in support of the application should include all relevant evidence showing the mental state of the mother. If possible, such evidence should include reports from psychologists or psychiatrists in support of the application. If the child is taken into foster care by the Department then our client can go through the process of applying for the child to be then placed into his care. The application and supporting material would need to be prepared and filed immediately upon the birth of the child. An urgent request should be made to the Family Court to give an urgent hearing to the application. These matters can complicate the path forward. Always choose an experienced family lawyer to ensure you have all the support you need. James Noble Law is not a common practice. We’re a family-run, locally spirited, and globally-minded family law firm capable of handling any case in family law. James Noble Law is Brisbane Family Lawyers. Just Different. Article Source: Unborn Child That is (sometimes) the million-dollar question. In determining what a client is worth in a property settlement, we (and the Court) utilise a 4 step process.
The 1st step is to determine the value of the net asset pool that is available for division between the parties. This includes adding up the value of all the assets (whether in one party’s name or joint names), taking away all the liabilities, and then working out the net equity. Remember, both parties’ superannuation forms part of the net asset pool also. The 2nd step is to assess each party’s respective contributions to the net asset pool. This includes financial and non-financial contributions. Financial contributions include inheritances, windfalls, and the like. Non-financial contributions include homemakers and parenting the children. The 3rd step involves considering the parties’ future needs and adjustments are made accordingly. This includes considering the party's ages, states of health, whether there is an income disparity, and who is going to be the primary caregiver to the children moving forward. The 4th and final step requires an assessment of what is a just and equitable property settlement agreement. Meaning, what would be a fair settlement outcome to the parties. To receive advice on your personal situation and circumstances, contact the team at James Noble Law today and make an appointment. Also, learn 4 Key Points To Note About Property Settlement Article Source: Property Settlement Can children decide which parents to live with?
When determining the living arrangement for children post-separation, parents often wonder at what age can children decide who to live with themselves. It is important to understand there is no one standard age that must be met. The reality of this question is that each case is different. No specific age requirement exists under the current family law regime. Although many people believe a child who is 12 years old can choose which parent they wish to live with, this may not always be the case. How does the Court View the Child’s Wishes? Under section 60CC of the Family Law Act, the children’s best interest will always be paramount in parenting arrangements. In determining what order would be in the children’s interests, the court will consider any views expressed by the child and any factors (such as maturity and understanding) that the court thinks are relevant. Weight Given to a Child’s Views
Important Take-Away Points It is important to understand that when children decide to mature in age, they will usually be able to make their own decisions about where they live, regardless of any court-ordered parenting arrangements. Therefore, if a child is 16 years of age or older, the court is unlikely to impose an order which forces that child to live with a parent they do not wish to. Counselling or psychologist appointments can often help during this period to assist with family dynamics and to uncover the feelings of the child/ren Article Source: Children Decide Child Support Agreement: Child support is governed by the legislative instruments of the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989. Separating from a partner or spouse either through a divorce or the end of a de facto relationship is often the most difficult and emotional process a person can go through. This is especially true when young children are involved. The Commonwealth Child Support Laws are designed to ensure the interests and wellbeing of children are satisfied, by balancing the parenting arrangements of the parties and the capacity of each party to support the child. As many situations are unique, determining the appropriate option for your situation often requires legal expertise and advice. How child support is paid? There are different forms of child support arrangements which the parties may enter into, each depending on your current financial position. It is also possible for the parties to willingly negotiate the terms of how child support is paid. However, generally, there are three main child support options to consider:
1. Child Support Agreement Child support agreement occurs when both parties can reach an agreement on how much child support is to be paid. This agreement often takes the form of a written agreement that outlines the terms and conditions of how and when this payment will occur. The agreement can then be registered with the Department of Human Services (Child Support), otherwise known as the Child Support Agency, which can then collect and distribute the payment pursuant to the agreement. If one party receives Centrelink or government benefits, then any child support set out in an agreement must be in excess of what the parties would pay by way of child support if the matter had been assessed by the Registrar of the Child Support Agency. If the parties are both in employment and receiving an income, and apart from the care benefits of Centrelink for children, the parties can make their own arrangements in regard to the financial support of the children, and this can be set out in a child support agreement. There are typically two forms of child support agreement:
2. Child Support Assessment Child Support Assessment, being the second child support option, is the most common arrangement between two parties. Child support is governed by the Child Support Agency, a federal statutory body that is independent of the judicial system. The Family Court does not generally have the power to deal with an application for the maintenance of a child nor order a party to pay child support. All applications for child support are directed to the Child Support Agency. The Registrar issues an assessment based on the income tax return of the parties which are disclosed through family law proceedings and based on the care arrangement of the child or children. This option involves an assessment undertaken by the Child Support Agency according to one set formula provided for under the legislation. This formula takes into consideration both parties’ respective incomes, the parenting arrangement for the child or children, the amount each party owes to the other, and how much time the parties spend with the children. The Child Support Agency after making an assessment will collect money from one party and distribute it to the other. Assessments are automatically reviewed and re-assessed by the Agency after approximately 15 months. Each party has the right to appeal any decision made by the Registrar in respect to referral to the Child Support Agency. However, if a party appeals the decision, and this appeal is dismissed or struck out, pursuant to the legislation, the party must apply to the Family Law Court to hear an application to vary or dismiss a child support arrangement which has been decided by the Child Support Agency. Once the Child Support Agency has made a decision regarding a child support assessment, each party has the right to object to the decision pursuant to section 80 of the Child Support Assessment Act. This objection must be lodged with the Agency within 28 days of the original decision being lodged and outline the grounds on which the objection is based. If an objection is lodged, the other party will be provided the opportunity to respond. Once the Registrar has made a decision regarding the objection, this must be provided to both parties in writing pursuant to section 87 of the Child Support (Assessment) Act. According to the child support formula, there are eight steps to calculating the basis of one parties’ payment:
3. Court Ordered Child Support The third and final option involves obtaining Court Ordered Child Support. An application is able to be brought by a party before the Family Law Court seeking a child support payment, provided the child in question is over the age of 18. This application is known as “child maintenance” and often arises where one party has the responsibility of a child with a disability or similar circumstance. Both biological and adoptive parents of a child may be liable to pay child support to another parent or person. If a party is seeking child support through the Child Support Agency, the evidence must be provided that the other party is the parent of the child. If you are unable to obtain this proof, or if there is some other dispute regarding the child’s paternity, DNA testing will be required. Any parent who cares for their child for at least 35% of the allocated time (being within 12 months from the date the assessment commences) may apply for a child support assessment. The amount a party may receive under this assessment is dependant upon the set formula. Importantly, a party is unable to claim child support in circumstances where the other parents continue to live that person on a genuine domestic basis. However, this is not limited to biological parents alone. Any person who is a non-parent carer (such a grandparent or family members) who has the care of the child, is able to claim payment from one or both parents of the child, provided the case for the child 35% of the allocated time, and, are the legal guardian of the child. Child support fails If the party who is obligated to pay child support fails to do so as per the registered agreement or by the child support assessment, the Registrar has wide powers to obtain payments by other administrative methods such as: 1. Compelling the person’s employer to make payment directly to the Agency; 2. Recovering payments from social security benefits and Family Tax Benefits; 3. Intercepting the person’s tax refund.If the Registrar is unable to secure payment through the abovementioned administrative means, then the Registrar may apply for Court Orders to enforce the debt. Child Support, What Is It Really Used For? This financial assistance is often in the form of a monetary payment on a systematic basis, such as weekly, fortnightly, or monthly installments. The amount of child support paid by a party is relevant only to the costs incurred by the primary caregiver to provide an adequate standard of living for the child or children residing in their care. This includes money for food, clothing, schooling, and general care. This amount does not include any excess which would be used by the other party for their own personal care. Money that is paid towards the other party’s care is known as “Spousal Maintenance”, and, remains distinct from child support. What child support agreement includes? Although there is no “setlist” of what a child support agreement includes, the biggest disagreement between the parties commonly arises over whether this financial support should include mobile phones, other inessential technology, costs of transportation, and extra-curricular activities. A major concern amongst parents who have children under their care is the payment and costs associated with extra-curricular activities. As sport, music, dance, and other similar activities are popular with children of all ages, the costs associated with these can be quite significant over a long period of time. Unlike child support payments which are determined upon set criteria and formula, non-periodic payments associated with extra-curricular activities do not have a ‘one size fits all’ answer for which party pays and in what proportions. As is the case with many families, the child’s involvement in extra-curricular activities often brings great joy, accomplishment, and pride to both the parents and children. Therefore, when determining how these activities are to be paid for between the parties, it is essential to keep the best interests of the child in mind, and whether an equitable solution can be reached. This approach often priorities the children’s continued emotional wellbeing and development rather than something the parents can hold over each other and fight about. Payment of school fees and extra-curricular activities of the children post-separation can often feel burdensome on one party, especially in situations where the other party is refusing to contribute. If you remain at an impasse with the other party about financial arrangements for these categories, mediation is the best course of action. This process often results in the parties reaching a compromise on issues such as extra-curricular activities, payment of insurance and medical bills, cost of school items (uniforms, books, equipment, etc.), and school fees. If a parent does not agree with the amount of child support being paid either by them or to them, mediation and negotiation is the first point of order between the parties. If an agreement is unable to be reached, the Child Support Agency has a review/amendment process which can be sought to determine whether the amount paid is appropriate. If the mediation process fails, a party may apply to the Child Support Agency who has the authority to determine which party is responsible for the payment of private school fees and how this payment is to be shared. If a party disagrees with the ruling made by this Agency, a review process is available. There has generally been a disposition in society’s understanding of child support that the Court will always award the mother with primary custody which entitles her to receive financial support from the father. This is simply incorrect. Each case is unique, and, requires careful consideration of the facts to determine the arrangement which is in the best interests of the child. Australia has numerous existing child support arrangements within the international community. This is referred to as a reciprocating jurisdiction under section 29B of the Child Support (Assessment) Act. Under this legislation, the Agency is able to make and continue a child support assessment where the party resides overseas in a reciprocating jurisdiction, provided the other parent is resident in Australia. The Agency has further powers in relation to: 1. Registering and enforcing an overseas maintenance assessment; 2. Registering and enforcing an overseas maintenance order; 3. Registering and enforcing an overseas ‘agency reimbursement liability’; 4. Registering and enforcing arrears that have accumulated under any of the above; 5. Transmit an application for review/variation of liability made; and 6. Assist overseas authorities with location and service requests for Australian parties. Recent amendments to the Child Support (Assessment) Act may have a significant impact on current and future binding child support agreement made between parties. The recent changes through the implementation of the Family Assistance and Child Support Legislation Amendment (Protecting Children) Bill 2018 will directly affect parties who enter into a binding child support agreement that finalizes child support without the adoption of the formula provided for by the Child Support Agency assessment. These changes are retrospective, which means agreements entered into prior to this amendment will still be affected. Essentially, these changes may result in the binding child support agreement to be suspended or even terminated in circumstances where:
Importantly, if the care arrangements only change for one child to which the binding child support agreement relates, but not other children, the binding child support agreement will be suspended or terminated in the context which relates to that child. It will continue to operate as intended in relation to other children, provided the parent continues to be an eligible carer of that child/ren. If you have a binding child support agreement that was signed before 01 July 2018, we strongly advise that you contact our office to review this agreement and ensure it remains binding in the future. This is essential to avoid the agreement being suspended or terminated as a result of the new legislative changes to the Child Support (Assessment) Act. Alternatively, if you find that an agreement cannot be reached and you need legal advice regarding your options, please do not hesitate to speak with one of our accredited family law specialists today. At James Noble Law, our first and foremost position is to promote mediation between the parties, to allow for future negotiations and parenting arrangements to be similarly resolved. Visit Article Source for more info - Child Support Agreement Or NEED HELP? TALK TO A NOBLE FAMILY LAWYER 1800 662 535 |
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