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Child Custody
CHILD CUSTODY AND CHILD SUPPORT LAWS IN AUSTRALIA
Often too much emphasis is placed on the division of assets when a marriage or a de-facto relationship breaks down. It should always be the welfare of the children that is the primary concern for all parties involved.
Issues relating to all children fall under the Family Law Act 1975 (Commonwealth), and thus are dealt with through The Family Court, the Federal Magistrates Court or the Local Court. This includes the child custody laws, residence of children and ongoing financial support of the children. This is the case for children from all types of relationships; whether the parents are married, de facto, same sex couples or adoptive.
CHILD CUSTODY
The starting point in any dispute concerning child custody and where children will live is Section 65E of the Family Law Act 1975 which provides:
In cases involving the residence of children the immediate intervention of the Courts will normally proceed by way of 2 separate hearings, an interim hearing and a final hearing to determine child custody.
Divorce - Child Custody Law - Interim Hearing Process:
An interim child custody hearing will usually be allocated between 1 and 2 months after the filing of an application with the Court seeking interim orders. That hearing will usually proceed by the judicial officer reading any sworn statements (affidavits) relied upon by each of the parties, then hearing submissions from each party (i.e. what should be focussed on and conclude from the statements) and making a decision on what the arrangements for the child should be until the final hearing. There is generally no cross examination to test who is telling the truth and the proceedings at an interim hearing are not designed to get to the bottom of any issues and allegations. That is the role of the final hearing. The interim hearing is designed to put an arrangement in place that will protect children from harm and maintain the current status of their relationships with the parties at the time of the interim hearing until the final hearing.Divorce - Child Custody - Final Hearing Process:
A final child custody hearing may be as late as a year from the date of the child custody application being filed, depending on the Court in which the application is to be heard. In some cases the delay may be longer.At a final hearing all witnesses who have given sworn statements (affidavits) will usually be required to attend Court to be cross examined; all evidence is presented to the Judge, including any relevant documents. In some cases a report from a Court appointed counsellor, psychologist or psychiatrist who has interviewed the parties and observed the children, is presented to the Court. In those cases the counsellor may also be cross examined.
The parties then make submissions to the judge. After considering and weighing all of the evidence the judge then gives a decision on child custody and makes orders for the arrangements for the children until each of them reach 18 years old or until further orders are made by the Court.
CHILD SUPPORT
The Family Law Act places parental responsibility on both parents, regardless of whether they separate or enter new relationships. According to sections 61B to 61DB of the Family Law Act, parental responsibility refers to the duties, powers, responsibilities and authority which parents have in relation to their children."In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
Pre-Action Procedures
Reaching a settlement out of court saves you and your family considerable time, stress and money.When applications for parenting orders are filed with either the Family Court or the Federal Magistrates Court, both parties are ordered to undergo “pre-action procedures” including participation in a dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.
Pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.
Armstrong legal do not only represent you in Court. We are committed to assisting you in the process of dispute resolution outside of court as well as with the formalisation of agreements.
Applying for Parenting Orders
Parenting orders are legally binding arrangements which cover the following:- Parental responsibility and decision-making
- With whom the child will live
- The time with which a child will be allowed to spend or communicate with the other parent
- Child maintenance orders (although these are less frequent because most children are now covered under the Child Support Scheme).
- The child
- A grandparent
- Any other person concerned with the care and welfare of the child
Child Support:
Under the Child Support (Assessment) Act, the primary carer of the child or children can make a claim for child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements, and assessing the amount of support which should be provided. The decision is based on each parent's income, the number of children and their living arrangements.If the Child Support Agency makes an assessment which does not seem just or equitable, it is possible to apply for an independent review of the assessment by a Senior Case Officer (SCO). The review is determined through a hearing. If you believe that your assessment needs reviewing, Armstrong legal can assist with the preparation of material and important submissions in order to achieve the best outcome for you and your children.
It is also possible to enter into a private child support agreement with your former spouse, without having to go through the Child Support Agency. Armstrong Legal is experienced in the drawing of private child support agreements and can assist you in the negotiating and formalising an agreement with your former spouse.
At Armstrong Legal, we have specialist family lawyers who assist people through the difficulties associated with the breakdown of relationships, divorce and issues in relation to child custody and residence of children.
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