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How Do I Ensure My Children's Quality of Life Post-Separation?

What legal steps can you take to ensure the financial and psychological well-being of your children post-divorce or post-separation? It is natural to worry about the well-being of your children when a relationship ends in divorce or separation. Your children’s living arrangements will most likely change, and they will most likely no longer be living with both parents. You may be concerned about the short-term and long-term psychological effects of this adjustment and whether they will be adequately cared for by the other parent. You may also be worried about how decisions will be made about matters involving your children’s quality of life post-separation if the relationship between you and your former partner is not amicable. So what you can do from a legal point of view about these concerns?

Ensuring children’s quality of life post-separation – financial matters

Firstly, it should be noted that children’s financial welfare should be taken into account when a property settlement is reached at the end of a relationship. The circumstances and considerations that are to be taken into account are set out in sections 75(2) and 90SF(3) of the Family Law Act 1975) and include the care arrangements for the children between the couple.

Ensuring the financial welfare of your child – child maintenance and child support

The Family Law Act details how maintenance and support can be provided to your child. Parents are encouraged to come to an agreement between themselves about how these payments should be made. Parents can privately arrange to create a Binding Child Support Agreement or a Limited Child Support Agreement for the payment of child support or maintenance. These agreements each require certain conditions to be met.

For a Binding Child Support Agreement to be enforceable, all parties to the agreement are required to obtain independent legal advice before entering the agreement. These agreements cannot be amended once they are made, but they can be ceased and replaced with new Binding Child Support Agreements.

Before a Limited Child Support Agreement is made, an assessment of what support should be provided to the child needs to be obtained from Services Australia. The amount that will be paid in child support under these agreements needs to be more than what is payable according to the assessment. Independent legal advice is not needed for parties to enter into these agreements. However, these Limited Child Support Agreements can be ended by either party in certain circumstances.

If a private agreement is not reached, Services Australia will decide about what child maintenance or child support should be paid to the child. Services Australia has various powers available to ensure child maintenance or child support is paid. Legal consequences may ensue if the parent that is required to pay this fails to do so.

Ensuring children’s quality of life post-separation – psychological welfare, parenting agreements, parenting plans and parenting orders

Property settlements and child support or child maintenance may ensure the financial well-being of your child. However, you may wonder about what can be done for the psychological welfare and wellness of your child from a legal point of view. It is often a good idea for parents who are separated or divorced to agree in writing to how their children will be cared for by both of them. You and the other parent may want to make this agreement an official court document by obtaining a consent order to the parenting plan or parenting agreement from the Family Court.

These agreements can include details about many things that are relevant to the care of your child and can include details about:

  • Living arrangements for the child;
  • What decisions will be made jointly between parents and how decisions about these issues will be made;
  • What schools a child is to attend;
  • What type of health care the child is to receive, e.g. which fund of private health care are they to be covered under or if they are to receive public health care;
  • What extracurricular activities the child will participate in, e.g. which sports or cultural activities;
  • What relatives, such as grandparents or aunts and uncles, the child is to spend time with and how much time they are to spend with them;
  • How and with whom the child is to spend holidays and special occasions such as Christmas, Mothers’ Day, Fathers’ Day and their birthday;
  • Details about how far away you and your ex-partner are to live away from one another. The distance may be specified to ensure the parenting plan or parenting agreement can be followed;
  • Whether or not the child is able to go on international holidays with one parent and if so any requirements for such holidays;
  • Details of who will hold the child’s passport;
  • Details about how expenses for the child will be shared, e.g. for school excursions or extracurricular activities;
  • Details about how drop-offs and pick-ups will take place;
  • Details about how communication will take place with the parent that the child is absent from when with the other parent;
  • Details about how often the parenting plan or parenting agreement will be reviewed and updated.

Suppose you and your former partner cannot agree to make a parenting agreement or parenting plan. In that case, you can engage the services of a trained professional, such as a mediator, who can assist you in formulating the parenting agreement or parenting plan. If this fails, you may need to have the Family Court make a parenting order for you. The Family Court will always make its decision based upon what it sees as being in the best interests of the child.

Ensuring children’s quality of life post-separation if the other parent does not follow the parenting plan

Your parenting agreement or parenting plan may detail the way that substantial decisions are made that relate to your child. Or it may detail decisions that you have made with your ex-partner about your child. For example, the parenting plan or parenting agreement may detail what school it is that your child is to attend. So, what can you do if you were not consulted in the proper way or your ex-partner has sent your child to a different school to the one that was agreed upon?

The first step to resolving this issue may be to discuss it with the other parent directly. They may have good reasons for why they did not follow the plan or why they have sent your child to a school that is different from the one that was agreed upon. If this fails, it is advisable to get an expert in dispute resolution to help you discuss your dispute with the other parent. If this also fails, you may need to apply to the Family Court to intervene. All decisions that the Family Court makes will consider what is in the best interests of the child. If the dispute is over what school the children should attend, the Family Court may come to the conclusion that the school the other parent has sent them to, instead of the one that was agreed upon, is, in fact, a better school for your children.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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