Separation or divorce can have devastating effects on children.
Given this, the thrust of family law in Australia is principally about the care, welfare and development of children under 18 years of age. Under the Family Law Act of Australia, the basic premise is, that the parents exercise “equal shared parental responsibility,” taking care of the best interests of the child.
Obviously, following separation or divorce, issues relating to the care and support of children are paramount. This includes with whom the children would live (residence), the frequency and manner of contact with the non-resident parent (contact) and provisions on support (maintenance and support).
If the parents cannot agree on the terms, one party may file his/her Application for Orders in the Family Court for the determination of the issues involving the child’s residence, contact, care, education and the provision of support. These orders are commonly referred to as parenting orders.
The Family Court or the Federal Magistrates Court has the jurisdiction to make parenting orders of children born out from marriage and even children born out of a de facto relationship. At all times, the Court considers the best interests of the child in granting parenting orders. Such orders may include:
(a) Residence Order
(b) Contact Order
(c) Child Maintenance Order
This is the Court Order granting the right to person or persons with whom the child has to live with. However, prior to the order, either party may apply to court for interim residence (formerly referred to as custody) which is binding until the Court makes the final order. Under the Family Law, physical custody of children can only be awarded to the parent who can show that he or she is in the best position to provide financial security and possess adequate parenting skills to care for the child.
In granting a Residence Order, the court will take into account the full circumstances of each parent. This can be a quite a complex and onerous process
In Australia, the Family Law Act provides the right of children to have contact with their parents. Usually, the Courts prefer that parents make the arrangement for the contact, residence and support of children. It is only when the parties cannot agree on the terms that the Court steps in. A Contact Order outlines the parties rights including where and how often should there be contact with the other parent including friends and relatives.
If both parents have come into an agreement regarding residence and contact, they can use the following means to formalise their agreement:
1. Have a solicitor draft the agreement and apply to the Courts for consent orders; or
2. Make an online application for the consent order using a kit that can be downloaded from the Family Court website.
Child Maintenance Support
Child maintenance and child support is the amount provided by one parent to the other parent to help with the costs of bringing up minor children. The Court considers the following factors in determining the amount of support:
the financial circumstances of each parent;
the age of the children and in case of an adult child, who may be unable to care for themselves due to disabilities;
the level of care provided by each parent;
the amount of support received from either parent; and
other special needs of the children including support for education.
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