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Binding Child Support Agreements

A Binding Child Support Agreement takes the form of a Binding Financial Agreement, but it relates to child support. Binding Child Support Agreements can only be entered into after both parties have received legal advice from separate lawyers. Such advice is also required before terminating an agreement.

The amount payable under a Binding Child Support Agreements can be for any amount, including amounts that are less than the amount payable under the Child Support Agency formula. A Binding Child Support Agreement differs from a Limited Child Support Agreement in this respect, a Limited Child Support Agreement must include an amount at least equal to, or more than the amount calculated by the Child Support Agency formula.

Any changes to Consent Orders must be in the best interests of the child, considerations for how the changes affect the parents are secondary.

Binding Child Support Agreements can be changed by agreement (when both parents agree to change) or by Court Orders (when only one parent requires change).

Who has a duty to support children?

Each parent has a duty to financially support their child. This duty exists, regardless of whether the parents were in a relationship and it is not relevant whether a parent spends time with their child or not.

The duty of a parent to support a child takes priority over other commitments held by parents to maintain themselves or any other person they have a duty to maintain. Upon finalisation of any Court Orders, the person applying for them must inform the Child Support Agency of any Orders made or agreements reached. A copy of the Orders or agreements must also be provided to the Child Support Agency.

The term ‘parent’ includes biological parents, adoptive parents and people who have become parents as a result of an artificial conception procedure.

Whether a parent is liable to pay child support will depend on their circumstances. A parent who has the care of a child for at least part of the time and who is not living with the other parent can apply for child support. The amount of time a parent spends with their child, can affect the amounts paid. Parents can apply for Court Orders to spend time with their child. In some circumstances another eligible person who has care of a child can apply for Child Support.

In order to receive Child Support, a parent or eligible carer needs to show they have at least shared care of the child and the other person is the natural or adoptive parent.

Where parents can agree, the Child Support Agency does not have to be involved. Agreements should be signed and in writing and can be registered with the Child Support Agency.

Some parents may prefer for the Child Support Agency to work out the amount to be paid, but the amounts can be transferred privately. Receipts for private payments made or received and should be retained.

Why are the best interests of the child important?

When making any Court Orders or varying a Child Support Agreement, the court must always consider the best interests of the child.

Factors which determine whether or not arrangements are in the best interests of the child include:

• the benefit of the child in having a relationship with both parents,
• the need to protect the child from harm,
• ensuring children receive adequate and proper parenting to reach their full potential and
• ensuring that parents fulfill their duties and perform their responsibilities towards their children.

The principles underlying these objectives are that:

• children have the right to know and be cared for by both parents,
• children have a right to spend time on a regular basis with both parents,
• parents jointly share duties and responsibilities for their children and
• parents should agree about the future parenting of their children and
• children have a right to enjoy their culture.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. Our primary goal is to minimise risk to children and ensure proper arrangements are made for their ongoing financial, physical and emotional support. Care and compassion combined with determination and expertise are required to obtain the best results.

Mathews Family Law is an Australian law firm. Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

I want to end my relationship but my ex-partner won’t move out of the house that we own. What can I do?

Both you and your ex-partner are entitled to live in your home after separation regardless of whose name is on the title. You cannot be forced to leave just because the property is not in your name. The only way you can be forced to leave is if the Court orders it.

If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave. If you fear violence, you should seek advice immediately.

Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.

What sort of agreements can we make about arrangements for the children?

Many separated parents have informal agreements in place about the parenting of their children. The parents reach agreement with or without the help of mediation or counselling services. Neither parent can enforce an informal agreement against the other.

Parents can also apply for court orders by consent. Agreement is usually reached through negotiation between the parents with the assistance of dispute resolution practitioners or lawyers.

Seek legal advice before reaching any agreement about where the children live and where they spend their time, these arrangements can influence property settlement matters and child support.

The other parent has taken the children and is refusing to return them. What should I do?

If you have an order that the children live with you or spend time with you and the children have been taken or not returned, you need to apply to the Court for a recovery order. This order allows the police (both state and federal) to find and return your children to you.

If you do not have an order that the children live with or spend time with you, you need to apply to the Court for such an order, as well as a recovery order. This can be done simultaneously.

Sometimes, in an emergency, the Court may give these orders ex parte, that is, without the other parent being at court. If you are worried that the children might be taken out of Australia you should put the children’s names on the Airport Watch List. You will need to apply to the Court to place the children on the Watch List and send a copy of the application and any court orders made to the Federal Police.

Can I relocate overseas with my children?

If a parent moves away that move may affect the children’s ability to spend time with the other parent.

If there are court orders you need to check whether the move will breach the order. If it is likely you will be in breach if you move then you need to have the orders varied either by consent or by the Court. You must do this before you move.

Where there is a parenting plan or informal agreement for your children to spend time with the other parent, the Court could be asked by the other parent to issue an order which stops you from leaving.

If there are no existing Court Orders in place, you can move overseas if the other parent consents to you relocating.

If the other parent does not consent to the move you will need to obtain a Court Order.

I want to move out of the area – can I just take the children or do I need the other parent’s permission?

If a parent moves away that move may affect the children’s ability to spend time with the other parent.

If there are Court Orders you need to check whether the move will breach the order. If it is likely you will be in breach if you move then you need to have the orders varied either by consent or by the Court. You must do this before you move.

If there are no Court Orders you will not be breaching any orders by moving. Where there is a parenting plan or informal agreement for your children to spend time with the other parent, the Court could be asked by the other parent to issue an order which stopping you from leaving.

You can move away if the other parent consents to you relocating. If the other parent does not consent to the move you will need to obtain a Court Order.

Our Services

Mathews Family Law & Mediation Specialists practices exclusively in family law and mediation, offering full and ‘unbundled’ family law and mediation services.

Our accredited family law specialists and mediators are leading experts with the skill, experience and commitment to guide and support you through to the resolution of your dispute.

Separation

• We’ll provide you with the information you need to make an informed decision about separating
• Use our online fixed fee divorce service to obtain a divorce quickly, cheaply and with minimal fuss, no matter your location in Australia or overseas

Children and Parenting

• Parental responsibility
• Living arrangements (custody and access)
• Relocation
• Rights of grandparents and others

Child Support, Child Maintenance and Adult Child Maintenance

• Child Support Agency change of assessment process
• Payments for children and adult children
• Binding Child Support Agreements

Property and Financial Settlements

• Division of assets
• Complex property settlements
• Business, company and trust structures

Superannuation

• Superannuation flagging and splitting orders
• Superannuation Agreements

Maintenance

Payments made to a former partner following separation

Financial Agreements

• To determine how your assets will be divided in the event of relationship breakdown
• May be used to terminate maintenance rights
• ‘Pre-nuptial agreements’, during relationship and following separation agreements
• De facto (including same sex) and marriage relationships

Asset Protection including injunctions and restraining orders

• For personal protection
• To prevent a person from entering or remaining in the home or other areas
• To preserve assets including sale proceeds and business operations
• To preserve superannuation

International Family Law Disputes

• International relocation
• International child abduction
• Hague Convention
• Registration of overseas parenting orders 
• International child support
• Registration and enforcement of overseas child and spousal maintenance orders
• International service of legal documents

Intervention Orders

• Legal strategies to protect against family violence

De Facto and Same Sex Relationships

Our ‘Unbundled’ Family Law Services

• Unbundling breaks up the family lawyer’s role into a number of agreed limited legal services
• Unbundling empowers the client to select only those legal services that they require
• Unbundling can limit the lawyer’s involvement to a single issue, court or mediation process including:
  • Advice only
  • Research only
  • Drafting letters or court documents
  • Reviewing client prepared letters and court documents
  • Negotiation coaching in preparation for mediation or settlement meeting
  • Negotiating on behalf of the client
  • Attendance at mediation or court appearance on behalf of the client
  • Drafting settlement agreements
  • Providing independent legal advice for financial agreements
• Supported by a written ‘unbundled limited scope engagement agreement’ (costs agreement)
• Fixed fees by agreement

The Importance of Finalising Your Property Settlement & the Dangers of Delay

Oftentimes, particularly in circumstances where parties to separation are amicable and consider that they “get along well”, spouses divide their assets according to a personal agreement – that is, an agreement negotiated personally between the parties without the use of lawyers or the Australian courts.

Such an arrangement is not legally binding, and until an agreement is documented in one of the approved manners, the agreement is considered to be an informal agreement.

One of the most significant consequences of not formalizing your family law property settlement is the possibility that your former spouse is able to make an application for a property settlement in the future – one, two, or even several years later. Being required to undertake a settlement years after your separation can have detrimental impacts on your financial and mental wellbeing and makes it difficult to plan your personal affairs. This is particularly so when as far as you knew, the matter was dealt with and is in the past.

It is important, and a principal consideration of the Australian courts, that parties finalize the financial aspects of their relationship so that they can get on with their lives.

How Do I Formalise A Property Settlement?

Australian family law affords former spouses (or parties to a de facto relationship) two ways in which they can formally finalize a property settlement lawyers. These are:

• 1. Making an application to the court for consent orders; or
• 2. Entering into a binding financial agreement (‘BFA’) (also colloquially known as a ‘pre-nap’).

To reiterate, an agreement is not legally binding unless and until it is documented in one of these manners.

1. Consent Orders

Parties to a separation that have reached an agreement about their property settlement are able to apply to the Family Court of Australia for orders to formalize the agreement so that it is legally binding. This application documents and details:

• The agreement reached by the parties; and
• Its practical application.

When considering an application for consent orders in respect of a family law property settlement, the Family Court must be satisfied that the orders proposed are just and equitable.

Although the parties are not required to obtain specialist legal advice in relation to an application for orders, it is highly advisable that you do so, as the documents required are technical in nature, and the consequences of an agreement not being documented correctly can be costly and time-consuming.

2. Binding Financial Agreements

Parties to a marriage or de facto relationship can enter into a binding legal agreement (essentially a contract) that details the financial arrangements should their marriage or de facto relationship break down.

A binding financial agreement can be entered into:

• Before marriage
• During marriage
• After divorce

A binding financial agreement is capable of covering:

• Property matters
• Financial support of a spouse (i.e. spousal maintenance), or the termination thereof that is, to prevent a former spouse from making an application for maintenance in the future should their circumstance change. This protection is not afforded solely by consent orders.

Unlike an application for consent orders, in order for a financial agreement to be binding, both parties must seek independent legal advice as to the effect of the agreement on the rights of either party and the advantages and disadvantages thereof. Additionally, and as distinct from an application for consent orders, a binding financial agreement is not required to be deemed as just and equitable by the Australian courts.

Other Important Considerations

You are not required to be divorced to formalize your property arrangements – in Australia, divorce is a largely administrative process and is distinct from property settlement matters.

You should also consider that when you are divorced, you have twelve months from the date that the divorce is granted to bring an application for a property settlement to the court. After this time, ‘leave’ (i.e. permission) from the courts to apply for property orders may not be granted, or may nevertheless be costly and time-consuming to pursue. De facto couples have two years from the date of separation in which to apply to the court for property orders.

Where To From Here?

Our accredited family law specialist solicitors are available to assist in all matters pertaining to your property settlement and can advise as to the method that is most suited to your particular circumstances. If you would like to speak to one of our family law specialists and property settlement lawyers about any of your family law property matters, please contact us on 1300 635 529 or email [email protected] to arrange a free telephone consultation.

Parenting Arrangements after Divorce

Divorce is painful for everyone concerned, especially children. During this challenging period, children need love, support and contact with both parents.

Creating certainty about the future is crucial for children when their parents separate. Parents coming to a mutual agreement about parenting arrangements can help to provide clarity and certainty.

When parents agree

Following separation, parents may agree on a parenting arrangement that works for them and the children. The agreement should focus on providing for the needs of the children and may include financial arrangements.

A parenting arrangement can be agreed orally, in writing or put into a formal court order known as ‘consent orders’ (which requires an application to the court but does not require a court appearance).

When parents don’t agree

If parents can’t agree on parenting arrangements, they can apply to the court for a parenting order. Usually (except in the case of family violence and other specific circumstances), parents are not permitted to apply for a parenting court order until they have first attempted family dispute resolution (mediation).

The court’s primary concern will be to protect the children from psychological or physical harm. The court will address this before deciding about parenting arrangements.

The Australian Government has published a book to help develop parenting plans. This resource can help prepare clear, practical parenting arrangements that are focused on what’s best for the children.

What to consider when creating a parenting agreement?

When making parenting arrangements, parents may consider a range of issues including:

• The capacity of each parent to provide day-to-day care?
• The age of the children?
• The arrangements for the children before and after school and during  school holidays?
• Will the children spend their time with other significant people in their lives, like grandparents or other relatives?
• The children’s educational needs?
• Any cultural considerations?
• The special needs of the children, including educational and medical?
• The children’s wishes, having regard to their age and stage of development?
• Other practical considerations such as transport and accommodation expenses?

While a routine may be best for your children overall, flexibility is likely to be an essential ingredient of a parenting agreement.

Relocating with children

If you are thinking of relocating with your children at a distance that would dramatically affect the time they spend with the other parent, you will need to come to an agreement with the other parent. If agreement is not reached, an application to the family law courts seeking permission to relocate the children will be required.

The proposed relocation destination may involve moving intrastate, interstate or overseas. Consider how the relocation will affect the children’s relationship with the other parent and ask yourself the question ‘Would the move be in the children’s best interests?’ – the court will ask the same question.

What’s next?

Consider what is best for your children’s short-term and long-term wellbeing.

Work out what concerns need to be addressed in your parenting arrangement.

Decide whether you want the parenting agreement to be an informal oral or written agreement, a parenting plan signed and dated by both parents or a court order obtained by consent or by order of the court (judge made order).

Contact an accredited family law specialist or family dispute resolution practitioner to obtain the advice that you need to resolve your post-separation parenting issues. Our specialist solicitors and family dispute attorneys are able to help you with your parental rights.