In relation to any Orders dealing with children, the Court's concern is to ensure that the welfare of the children is the paramount consideration. Accordingly, there is no preference for mothers (or fathers, for that matter) and the children have a right to an appropriate relationship with both of their parents (as well as extended family members)
Under amendments to the Family Law Act which came into effect as from 1 July 2006 references to “residence” and “contact” have been replaced with references to “living with”, “spending time with” and “communicating with”. The whole purpose of this is to try and emphasise the fact the relationship between a parent and child is perceived to be the right of the child rather than the right of the parent. It is also intended to emphasise there is a presumption of “equal shared parental responsibility” in all matters and that such presumption is, in fact, in the best interests of the children.
Whilst equal “shared parental responsibility” imposes an obligation on the parents and the Court to consider an Order that the children spend “equal time” or “substantial and significant time” with each parent the presumption is rebuttable and is certainly not an absolute requirement.
Whilst there is no legal obligation to have Orders in place dealing with matters relevant to the care, welfare and development of your children, the absence of any Orders can sometimes lead to confusion, misunderstanding and the children being inappropriately involved in parental disputes. The greater level of animosity between you and your former spouse the greater the likelihood is that you would need very needed detailed specific Orders regulating the time the children will spend with each of you. The better the relationship, the less specific those Orders may need to be.
There are a range of parental issues that need to be considered as your children grow and develop. These can include serious health issues, educational choices, religious instruction and engagement in extra-curricular activities. Whilst the Court ultimately retains jurisdiction to make Orders in relation to those matters, its primary emphasis is co-operative parenting where ever possible. To that end, there are a number of parenting courses which can be undertaken, both for parents and, in some cases, children. Links to some of those on offer are set out below.
The Child Support Scheme was introduced in 1989 specifically to ensure that the level of financial support provided to children by non-residence parents was commensurate with the needs of the children and the capacity of the parents to pay. In the absence of any agreement to the contrary between parents, there is an obligation on each of them to support the children financially to the extent that they are able to do so.
The Child Support Assessment Scheme involves a calculation of child support by reference to the taxable income of the respective parents. This is an administrative process and either parent can apply for an assessment.
Once an assessment is issued, either parent can object to it through an internal review process seeking a change of the assessment. If either parent is dissatisfied with the outcome of that internal review then appeal may be made to the Social Security Appeals Tribunal or, ultimately, the Family Court or the Federal Magistrates Court.
Even if a child support assessment is obtained or an agreement reached, the method of collection can be by direct payment from one parent to the other or by the nonresidence parent to the Child Support Agency who will then on-forward the moneys to the parent with whom the children reside.
Parties can, of course, agree to a regime of financial support for their children outside the scope of the Child Support Assessment Scheme (and without any reference to the formula used by that scheme). This must be by consent and any such agreement can be a "handshake" agreement or it could be documented by way of a Child Support Agreement. In the case of a "handshake" agreement this cannot be directly enforced. In the case of a Child Support Agreement, however, enforcement is possible. The use of a Child Support Agreement can also avoid dispute as to the exact terms of the arrangements.
It should also be borne in mind that there is no legal obligation upon parents to formulate the agreement whether in documentary form or otherwise. It may be, for instance, that you and your former spouse are happy to make arrangements for the children's financial support on an "as and when needed" basis.