SEPARATION: CUSTODY AND OTHER CHILD-RELATED MATTERS

Form 11 Consent Orders

Whether it is financial matters or child-related matters, the best outcome often means an out-of-court settlement is reached without the need to commence legal actions.

Similar to financial matters , once an agreement about what parenting arrangement is reached the parties should record the agreement by way of a Form 11 application for consent orders.

Often, the key to avoid expensive and lengthy legal proceedings is to attend to the disputes and obtain sound legal advice at the earliest possible opportunity. Having a good understanding of your rights and responsibilities as a parent under the Family Law Act will go a long way in your negotiations with your ex-partner.

You do not have to wait until you are formally divorced before you can make a Form 11 Consent Orders Application for parenting orders. In fact, you can (and probably should) start negotiation with your ex-partner immediately after separation.

In your negotiation with your ex-partner, the interest of the child should be the sole emphasis.

Disputes on child related matters

It is far too common that parties to a marriage or de facto relationship breakdown neglected to have significant regards to the welfare of their children and subconsciously focused too narrowly on property division. In fact, the welfare and interest of the children should always be the primary concern in any relationship breakdown.  If you and your ex-partner find the breakdown to be very stressful, it is not hard to imagine the children will find it extremely difficult to cope with.

In a case involving children or parenting issues, it is a requirement that the separating family must undergo a Compulsory Family Dispute Resolution before court proceedings can be commenced. For more information about Family Dispute Resolution, please see Family dispute resolution.

Under the Family Law Act, the term “child custody” is not used. Instead, it is referred to as “parental responsibility”.  In deciding whether to make a particular parenting order in relation to a child, the Court must regard the “best interests” of the child as the paramount consideration. In deciding what is in the best interests of the child, the primary considerations are:

  • the benefit to the child of having a meaningful relationship with both parents; and
  • the need to protect the child from physical or psychological harm.

In addition, the Court will also consider things such as views expressed by the child, the child’s relationship with other persons (e.g. grandparents and siblings), likely effect of any changes in the child’s circumstances, the child’s background, the child’s attitude, any family violence etc.

The types of parenting orders you may seek from the Court include:

  • who a child live with;
  • who a child will spend time with;
  • who a child will communicate with; or
  • who has responsibility for major decision about the child.

A grandparent may also apply to the Court for parenting orders in relation to the grandchildren. The orders a grandparent may seek include orders for the grandparent to spend time and communicate with the grandchildren and in some cases (for example, when both parents are unwilling or unable to care for the child) orders that the grandparent has sole parental responsibility for the child.

In child related proceedings, it is common that a family consultant is involved. The aim of the family consultant is to reduce the adversarial aspect of the litigation.  The family consultant can also provide evidence directly to the court. Also, the family consultant may work with the parties outside of the courtroom in trying to resolve the dispute.

(Compulsory) Family dispute resolution

In child related proceedings, the Court will not accept an application unless the parties had first attended family dispute resolution. Family dispute resolution comes in many forms, including services like:

  • family counseling; or
  • negotiation

There are exceptions to the requirement for Family Dispute Resolution, for example, if your matter is urgent or family violence has occurred.  In such cases, you may commence proceedings without first attending Family Dispute Resolution but you will need to file an exemption form with your application.

It is important to ensure that the dispute resolution provider is a registered Family Dispute Resolution Practitioner because you will need to obtain a certificate from the practitioner if the resolution is not successful. For more information about commencing child related proceedings, see Disputes on child related matter.

If an agreement is reached after the family dispute resolution, you and the other party may enter into a Parenting Plan or apply to the Court for a consent order.

Child support arrangements

If you are the primary carer of a child, you may entitle to receive child support from the other parent pursuant to the Child Support (Assessment) Act.  The Child Support Agency is responsible for administering child support arrangements including calculating the amount of child support a parent should be receiving. Applying for child support assessment does not require court proceedings and the process is relatively simple, assuming you have the other parent’s co-operation.

The amount of child is calculated by the Child Support Agency using an administrative formula which takes into account the parents respective income, number of children, age of the children and their living arrangements. In some complex cases, the special circumstances of the children or the parents can be taken into account.

Alternatively, the parents may reach an agreement on the amount of child support to be paid. This agreement is call a child support agreement and must meet the requirements of the legislation in order to be binding.

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