Children

Separation can also be a difficult time for children especially when they are in their young age. They may experience all sorts of emotions that may be challenging for a child to deal with and this may lead to them behaving in abnormal ways. Despite a divorce or breakdown of a relationship, both parent’s responsibilities towards their children remain unchanged. When dealing with a Child’s Custody, you are required to make a realistic and practical plan for your future arrangements with your children. We understand that dealing with a separation can be emotionally stressful and difficult, if you are currently facing issues with your ex-partner about your Child’s Custody, please contact our experienced Family Lawyers to assist you with this matter.

1. Child Custody

Do we need to go to the Court for a child custody issue?

Going to Court is the last resort.

We encourage you and your ex-partner to try to resolve things without going to Court. This process is called “family dispute resolution” and is compulsory in all family law matters involving children. This process is used to minimise legal costs and to help parents to reach agreements.

A matter can only be brought to the Court if the parties have exhausted all services available to resolve their matter.

What factors does the Court consider when deciding child custody?

When making arrangements for children, the Court will consider what are the best interests of the children.

The primary considerations include:

  • The child’s personal view
  • Whether the child will have a meaningful relationship with both parents
  • Whether the child will be protected from physically or psychologically harm
  • History of violence by either parent
  • Home environment each parent can provide to the child
  • Each parent’s attitude towards their responsibilities in taking care of their child
  • Whether both parents should be granted an equal shared parental responsibility about the short and long term decisions of their child
  • Recommendation by expert social workers and psychologists

Would family violence affect child custody arrangements?

The need to protect a child from physical and psychological harm, including family violence and abuse, is a paramount duty that comes ahead of all other considerations.

What is the parental responsibility for each parent?

According to the Family Law Act 1975, both parents have equal parental responsibility when it comes to making long term or short-term decisions for their children. In other words, both parents have a shared responsibility in deciding which school their children will attend in the future or major health issues.

This presumption will vary if it is not in the child’s best interest (eg. if one of the parents engaged in family violence or abuse). If such circumstance arises, the court may order sole parental responsibility to one parent.

Will a child's preference be taken into consideration?

In Queensland, a child has the right to express their wishes about where they prefer to live or who they wish to spend time or communicate with. Generally, children do not need to meet a specific age before their wishes can influence child custody.

However, if a child prefers to live only with one parent, the court will assess the child’s emotional maturity. A child’s wishes may change as they grow older, a custody agreement can be changed to suit their needs.

2. Child Support

What is child support?

Child support is a financial support provided by the ‘payer parent’ to the ‘payee parent’. The cost covers the day-to-day expenses of a child and it may vary depending on the income of the payer parent and the child’s living needs. The Department of Human Services is now the responsible agent in managing child support payments.

How is child support calculated?

If you are unable to reach an agreement about a child support payment with your former partner, the Department of Human Services can calculate the amount using the following 8-step formula:

  1. Work out each parent’s taxable income
  2. Combine both parents’ incomes to determine an overall child support income
  3. Divide each parent’s income by their combined income to obtain each parent’s income percentage
  4. Calculate each parent’s cost percentage using the care and cost table
  5. Work out each parent’s percentage of care
  6. Calculate the difference between each parent’s cost percentage and income percentage. The parent with a positive percentage is required to pay the child support, whereas the parent with a negative percentage is the payee of the child support
  7. Use costs of children to work out the costs of the child
  8. Multiply the positive child support percentage by the costs of the child to obtain the total amount of child support

If you are arranging a child support payment for one child, the above formula may be suitable for you. However, this may be complicated for parents with several children. Please do not hesitate to contact our experienced family lawyers to assist you in this matter.

Can I object to a child support assessment?

You may object to the amount calculated by the Department of Human Services and request a review. However, you must submit an “Objecting to a Child Support Decision form” within 28 days from the day you receive the department’s decision letter. You may apply for an extension up to 90 days if you live outside of Australia.

What if my former partner refused to make child support payment?

If the payer parent failed to comply with their financial obligations, you may enforce any outstanding debt personally or inform the Department of Human Services about the outstanding debt. The Department of Human Services can enforce the child support payment by deducting the amount from the payer parent’s salary or tax return. If the payer parent owed a significant amount of child support payment, he/she may also be prevented from leaving Australia.

When will child support cease?

Child support does not apply to children over 18 years old. When a child reaches 18 years of age, the Family Law Court (or Federal Circuit Court) may determine adult child maintenance. This type of maintenance is normally only required if the child has an ongoing maintenance need, such as full-time tertiary study.

Can I change the child support amount?

Yes, this usually applies to situation where the payer parent is financially insufficient to continue to pay for the child support. In this circumstance, either parent has the right to apply for a “Change of Assessment”.

Do I need to continue to pay for child support if I live overseas?

You may be required to continue to pay for the child support even if you live overseas. This can be a difficult process if the payer parent is not an Australian resident. The Department of Human Services can forward the child support assessment to the payer parent’s country of residence. However, a different jurisdiction may or may not recognise or enforce it.

3. Adult Child Maintenance

What is adult child maintenance?

Child support usually ends after a child is turned 18. However, parents can sometimes be required by Court order to pay maintenance of a child above 18 years old.

When would a Court order a parent to pay adult child maintenance?

The Court may make an adult child maintenance order in the following circumstances:

  • The child has mental or physical disability
  • The child is having tertiary education

There are a few practical considerations the court will consider before granting a court order:

  • The child’s necessary expenses
  • Each parent’s capacity to provide financial support
  • The child’s contribution to make up their own upkeep

When does adult child maintenance end?

The Court may cease the Court order if:

  • The child has completed their education
  • A particular period has ended, for example 4 years to allow the adult child to finish their education
  • The child is no longer suffering from illness or disabilities

How is adult child maintenance calculated?

There are no standard formula for calculating an adult child maintenance as the figures can vary and the Court has discretion.

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