Child Custody, Parenting Plans and Orders, Contact with Children Family Law Australia

Existing and Proposed Decision Making in Children’s Matters

Figure 1: Current decision-making pathway.

 

Figure 2: Recommended decision-making framework

Source: Family Law for the Future — An Inquiry into the Family Law System - The Australian Law Reform Commission (ALRC) Final Report 5 March 2019.

Attachments

Information sheets and brochures

• • Before you file pre-action procedure for parenting cases
  • Duty of disclosure
  • Genuine steps certificate
  • Marriage, families and separation
  • Family violence information sheet
  • Compulsory Family Dispute Resolution – Court Procedures and Requirements
  • The impact of family violence on children
  • ‘Parental conflict and its effect on children’
  • Enclosure - Parts 6.1 and 6.2 of the Family Law Rules 2021
  • Enclosure Enclosure - Schedule 1 - Pre-action procedures - Parenting proceedings

Your duty of disclosure

Parties involved in family law matters must disclose to the other party and the court, if required, all information and documents relevant to their case in their possession or that have been in their possession and that they have the authority or ability to obtain.

The duty of disclosure starts from the time of first commencing negotiations. It continues until the matter is finalised, regardless of whether there are court proceedings or not.

We are required to provide you with the following documents:

1. Before You File – Pre-Action Procedure for Parenting Cases;
2. Enclosure – Schedule 1 – Pre-Action Procedures – Parenting Proceedings;
3. Duty of Disclosure; and
4. Enclosure – Parts 6.1 and 6.2 of the Family Law Rules 2021.

Please refer to the links above for more information.

Each party must file an undertaking as to disclosure before the first court date, confirming that they have complied with and will continue to comply with the duty of disclosure and have read the enclosed Parts 6.1 and 6.2 of the Family Law Rules 2021

The Duty of Disclosure brochure gives information about what documents are relevant. Please ask us for advice if you are unsure if something is relevant.

If a party fails to comply with their disclosure obligation, consequences include:

1. Any final court order, or agreement, can later be set aside.
2. The court may exclude evidence, dismiss the party’s case, make a costs order against them, or find them guilty of contempt and impose penalties such as a fine or imprisonment.

 Settlement options in Children's matters

You can agree without any court action. You do this through either:

01. Consent orders

Consent orders turn your parenting agreement into official, court-approved rules. Both parents agree on living arrangements, visits, holidays, and more. It's faster, cheaper, and keeps things peaceful – all for your child's best interests.

02. Binding Child Support Agreement

A Binding Child Support Agreement allows parents to document their agreement concerning child support.

We are required to provide you with advice about the effect of this document on your rights and the advantages and disadvantages of the agreement before you sign it.

Without a child support agreement - Child support assessments

Without a child support agreement, the Child Support (Assessment) Act 1989 (the Act) governs the obligations to pay or receive child support. The Department of Human Services (the department) assesses the amount of child support payable based on a formula in the Act, considering both parents’ taxable incomes, the age of the children, and the level of care each parent has for the children.

Once assessed, the payer must pay child support until the child is 18. The payer or the payee may seek a review of the assessment and, in some circumstances, may apply to the court for an amendment if either party’s income, the cost of living, or the children’s living arrangements, change.

Child support agreements

A Binding Child Support Agreement is a private agreement that fixes the amount of child support to be paid.

In summary, the effect of a child support agreement is that it puts an end to:

1. the parties’ rights to seek a child support assessment as detailed above and any obligations on the other party arising from same; and
2. the flexibility of the child support system to vary child support entitlements and obligations to account for any changes in either party’s income, the cost of living, and the children’s living arrangements.

If you enter into this child support agreement, it will fix your entitlement to receive child support payments on the terms set out above. Unlike the system under the Act, there can be no variation of your entitlements under the agreement to account for any changes in incomes, cost of living, and the children’s living arrangements. Your entitlements and the other party’s responsibilities will not vary until the child turns 18 or finishes secondary school.

Even if the other parent’s income increases or your income decreases, you cannot change the amounts payable under the agreement.

If you enter into the agreement, then under the present draft terms, the obligation to provide support will only come to an end if and when:

1. you or the other party dies;
2. you become totally and permanently disabled;
3. the child dies;
4. the child turns 18 years of age;
5. the child is adopted;
6. the child marries or becomes a member of a de facto couple;
7. the child is no longer an Australian citizen, present in Australia or ordinarily resident in Australia;
8. you cease to be a resident of Australia;
9. you and the other party become a couple for 6 months or more; and
10. the child receives an income sufficient for their self-support.

Once signed, this agreement is final and binding and cannot be varied. It can only be terminated in limited circumstances, if:

1. After receiving independent legal advice, both parties agree to enter a formal agreement terminating the existing Binding Child Support Agreement. Legal costs would be incurred in drafting and being advised about such a document.
2. After receiving independent legal advice, both parties agree to enter a new Binding Child Support Agreement, as part of which the existing Binding Child Support Agreement is terminated. Legal costs would be incurred in drafting and being advised about such a document.
3. It is set aside by the court in exceptional circumstances such as:
   1. the agreement of one of the parties was obtained by fraud, undue influence, or unconscionable conduct; or
   2. a change in circumstances since the agreement was signed means that hardship would be caused to the children or a party if the agreement was not set aside.

Suspension of the agreement

Section 86 of the Act suspends child support agreements when a party entitled to be paid under the agreement ceases to be the eligible carer for the children.

If the payee ceases to be the eligible carer, the agreement will be suspended for up to:

1. 28 days; or
2. 26 weeks if the agreement provides for a longer suspension than 28 days;
   1. if the agreement provides for a longer suspension than 28 days; or
   2. if the parties notify the Child Support Registrar before the end of the 26 weeks that they want the agreement suspended for more than 28 days; or
   3. if the Registrar is satisfied there are special circumstances.

If the suspension ends in either of these timeframes and the payee has not regained their status as an eligible carer, the agreement terminates under s 12 of the Act.

Advantages and disadvantages of this agreement

The advantages to you of signing the Binding Child Support Agreement are:

1. You fix the amount of child support you will receive, so it is not necessary to review the payment each year, as is required if assessed under the Act.
2. The agreement is binding until the child turns 18 or finishes school, regardless of any increase in your income.
3. The agreement is binding, regardless of any changes to the living arrangements for the child.

The disadvantages to you of signing the Binding Child Support Agreement are:

1. You cannot change the terms of the agreement in the future if the other party’s income increases or your income reduces.
2. If your income reduces, you cannot increase the child support paid by the other party.
3. Unless there are exceptional circumstances, you can only terminate the agreement with the other party’s consent and with further legal costs.

Registering your Binding Child Support Agreement

The Act provides that the department can enforce payment of periodic payments under an agreement. However, the department cannot compel a liable parent to make non-periodic payments. To force a party to pay non-periodic payments, the agreement must be registered with the Federal Circuit and Family Court of Australia.

Payments under an agreement can be drafted and defined under the Act as non-periodic payments. Lump-sum payments, transfers of property, payments to third parties or payments received by you for expenses such as school fees, private health premiums, and gap payments are defined by the Act as non-periodic payments.

We may recommend that you register your Binding Child Support Agreement with the Federal Circuit and Family Court of Australia. This will ensure that the court can enforce your agreement if future payment issues arise.

To register your agreement with the court, you must obtain an assessment from the department. You can get this assessment by contacting the department, opening a case, and providing them with both parties’ financial particulars.

You should also register your agreement with the department, which can enforce the periodic payments under the agreement.

If, for any reason, the Child Support Registrar refuses to register your agreement, you have 28 days to object.

Please contact our office if you have any concerns or queries regarding the effect of entering into this agreement on your rights and obligations.

 Genuine Steps Certificate

Applicants seeking final and/or interlocutory orders must file this form with an Initiating Application.