I’m separating with children.
So, you and your partner have decided to separate – what happens to your children? Moving on with confidence starts by understanding where you’re at.
We’ve answered 7 of the most commonly asked child support questions.
If you and your partner are able to negotiate and agree on a plan, you have three options:
- Parenting Plan
This is a written (but not legally enforceable) agreement as to who the children live and spend time with, made free from any threat, duress or coercion. As a parenting plan is agreed upon between both parties, there is no need to attend Court. Note: Parenting plans are different from Parenting Orders (see below).
- Consent Orders
This is a written agreement that is approved by the Family Court. A Consent Order can cover parenting arrangements for children, as well as financial arrangements such as property and spouse or de facto maintenance. Consent Orders have the same legal force as if they had been made by a judicial officer after a Court hearing. You and your partner can apply for Consent Orders to be made without going to Court, but they must be filed with the Family Court. To ensure that they are accepted, the Application for Consent Orders and Minutes of Consent Orders must be signed by both parties.
- Court Orders
If you and your partner cannot agree on a plan, you must attend some form of mediation/dispute resolution in a final attempt to reach an agreement. If that fails, proceedings may be commenced in the Family Court for orders to be made about who the children live with and how they spend time with the non-resident parent. Even when a Court application is filed, it is possible to reach an agreement at any stage without the need for a Court hearing.
Medical emergency notification details will usually be outlined in the parenting plans or Consent Orders.
This depends on whether you and your partner have agreed to “spend time with arrangements” or whether there is a Court Order in place until something more final is decided. Remember – the Family Court is primarily concerned with what is in the best interests of the child.
The Family Court may allow a step-parent to have custody of the child or some form of visitation rights. In making this decision, the Court is primarily concerned with what is in the best interests of the child.
Child support can be arranged privately between you and your partner by consent by way of a child support agreement. Under the Child Support Assessment Act 1989 (WA) a child support agreement can take the form of either:
- Limited Child Support Agreement
This is an agreement between parents about child support payments and how they are to be paid for a specified period of time. The agreement can include payment of cash or cover things such as school fees and health insurance. There must be a child support assessment in place before the Department of Human Services can accept a child support agreement.
- Binding Child Support Agreement
A Binding Child Support Agreement is a private agreement between the parties which fixes the amount of child support that the payer is to pay to the payee. These non-periodic payments usually relate to payment of, or contribution towards, medical expenses, school fees and other school expenses like uniforms. Under a Binding Child Support Agreement, the payer has a fixed obligation to provide support to the children, whereas without an agreement, the payer’s obligation is determined by the Child Support Agency.
Once signed, a Binding Child Support Agreement is considered to be final and can only be varied or terminated under limited circumstances. A Binding Child Support Agreement is only valid where a certificate of independent legal advice has been provided for each party.
If no agreement is reached, child support matters are dealt with through the Department of Human Services. The first step is to make an application to the Child Support Agency for an administrative assessment.
See above regarding parenting plans/Consent Orders.
Either or both of the child’s parents, a child, a grandparent or any other person concerned with the care, welfare or development of the child may apply for parenting orders.
Matters covered in parenting orders include:
- Living arrangements for a child
- Time spent and communication with the child
- The allocation of parental responsibility
- (Where parental responsibility is shared) The form of consultation those persons are to have with one another about exercise of the responsibility
- Maintenance (only if child support legislation does not apply)
- Welfare or development such as religion, education, medical, travel and other issues
- Responsibility for making decisions about major long-term issues in relation to the child
- Any other aspect of the case.
Except when filing Consent Orders, and before filing any other application for parenting orders, you and your partner must file a Section 60I Family Dispute Resolution Certificate with your application.
A Family Dispute Resolution Certificate is not required when you can establish at least one of the following:
- There has been abuse of the child by one of the parties (or risk of abuse)
- There has been family violence by one of the parties (or risk of family violence)
- It is an urgent application
- One of the parties cannot effectively participate in family dispute resolution.