Q& A | Separation, Child Custody and Parenting

Q&A with Lisa Wagner, Principal and Managing Director, Doolan Wagner Family Lawyers.

 

Are you separating and want to know what’s best for your children?

Here are our trusted answers to some of the most commonly asked questions about separation and child custody.

 

Q: What’s the difference between a Parenting Plan and Parenting Orders?

A: A parenting plan is a written agreement that sets out parenting arrangements for your child(ren). These arrangements are usually determined by you and your former partner privately at a mediation or following some negotiation. If you and your former partner want to vary your Parenting Plan, you are able to do so at any time. However, it is important to note that a Parenting Plan is not a legally enforceable agreement and is not binding on parties.

Parenting Orders are arrangements that have been approved by the Court and as such are binding on both parties. Parties are able to vary the arrangements outlined in the Orders, provided both parties consent.   In the event there is disagreement regarding the Orders, you or your former partner can make an application to the Court seeking that the Orders be varied or set aside. There is a high threshold parties need to satisfy the Court in order to vary or set aside Orders.

 

Q: My partner and I have split up and I want to move interstate / overseas with my kids. And what about travel? Do I need my partner’s permission?

A: The short answer is yes.

There are laws in Australia regarding relocating with children. These laws apply even if there are no formal Court Orders that govern any agreement you and your former partner may have reached regarding parenting. Therefore, if you are seeking to move overseas or interstate with your children, this should be discussed and negotiated with your former partner. Moving overseas or interstate falls under the umbrella of “parental responsibility” as it is a major long-term decision that will impact your children. If there is no agreement, then you may be required to file a relocation Application in the Federal Circuit Court or Family Court.

Additionally, if you and your partner have separated it is best to ask for their permission to take your children interstate or overseas, even if it is only for a short holiday. Providing your partner with notice and an itinerary of travel will assist in reducing any fears your partner has that you may not return the children and is also a good co-parenting approach.

If you intend to relocate or travel with your children without the other parent’s permission, you should seek legal advice prior to doing so.

If your children are taken overseas or interstate without your consent, you should seek legal advice immediately.

 

Q: Can parenting orders be varied?

A: The Court is usually reluctant to vary parenting orders. However, in circumstances where both parties consent to the change or the Court determines it is appropriate to change the Orders, your final parenting orders can be varied.

In order for the Court to vary an existing parenting Order it must be satisfied that there has been a significant change in circumstances. Examples of what constitutes a significant change of circumstances may include one of the following:

  1. If either you or your former partner is seeking to relocate with your children;
  2. If the current Orders were made without all the relevant information having been made available to the Court prior to the making of those Orders;
  3. If you and your former partner have since consented to new parenting arrangements, such as entered into a parenting plan and the current Orders are no longer reflective of the actual arrangements for your children;
  4. If a substantial period of time has elapsed between the Orders being made and the Application being brought;
  5. If there has been allegations of abuse;
  6. If you or your former partner, or one of your children are of ill-health.

If one of the above circumstances applies to you, the Court will carefully consider what is in the best interest of your children prior to varying your parenting orders.

 

Q:  Do I still have to pay child support even though the kids are living with the other parent?

A:  Yes, you do. Whether or not the children live with you or the other parent, both of you are responsible for the financial support of your children. The amount that would be payable, however, is largely dependent upon the number of nights that the children spend with each parent, as well as the parents’ respective incomes.

With respect to meeting this obligation, you or the other parent can obtain an Administrative Assessment from Services Australia (formerly, the Child Support Agency) or alternatively, reach a private agreement amongst yourselves. Should you wish to document this agreement, a Child Support Agreement can be prepared which is registered with Services Australia and sometimes with the Court. Such an Agreement can include not only periodic child support, but also outline how you both will meet non-periodic payments (for example, in relation to the children’s extra-curricular activities, private health insurance, school fees and the like).

 

Q: Do I have a right to see my children?

A: In Australia, the short answer is that you do not have any right grounded in law to see your children. Family law in Australia, governed largely by the Family Law Act 1975 (Cth) (“the Act”) adopts a child-centric approach, focussing on the rights of your children and your responsibilities to your children as a parent rather than your rights as a parent. Your children have a right to enjoy a meaningful relationship with both of their parents. This will usually involve your children spending time with each parent, however there is no rule, presumption or “starting point” that your children will spend equal or “50:50” time with each of their parents. Furthermore, the paramount consideration of the Court in determining a parenting arrangement that is in the best interests of your children is to protect your children from harm or being subjected to or exposed to abuse, neglect or family violence. You have responsibilities for your children however you do not have a right to see or spend time with your children. Your children have a right to have a meaningful relationship with both of their parents if it is safe for them to do so and they will not be at risk of harm.

 

 

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing reliable, direct and practical advice. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or email at enquiries@familylawyersdw.com.au  

 

 

About the Author: Lisa Wagner is Principal  and Managing Director of Doolan Wagner Family Lawyers.

Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: linkedin.com/in/lisawagnerdwfl

 

Disclaimer:

This post is only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us on (02) 9437 0010.