FAM T1A1 Advising on child support and parenting matters notes
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University of New England *
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Feb 20, 2024
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FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 1 of 8 © The College of Law Limited Advising on child support and parenting matters Child support A client often asks a lawyer how they can obtain financial support for their children from the other parent. The first step is usually for the lawyer to refer the client to Services Australia (Child Support). However, a lawyer needs to know how the child support legislation formula works so they can properly advise their client. The client has a number of options. In summary, the client or the other parent can apply for an administrative assessment or they can enter into one of two types of child support agreement. If the client wishes to make an application for child support, they do so to Services Australia (Child Support). Services Australia (Child Support) determines the amount of the payment according to a formula contained in the Child Support (Assessment) Act 1989 (Cth) (CSAA). Services Australia (Child Support) collects and pays out money received from the payer of child support. A review of an assessment for child support can be made first within Services Australia and then to the Social Security Appeals Division of the Administrative Appeals Tribunal (AAT first review). A review of the AAT first review can be sought in the AAT and is known as the “
AAT second review
”
. Applications for child support cannot be brought in the Federal Circuit and Family Court of Australia (FCFCA) or other court exercising jurisdiction in this respect under the Family Law Act 1975 (Cth) (FLA).
The parties may agree to vary the amount of child support assessed. Also, Services Australia (Child Support) or the parties by agreement may arrange for the child support to be paid directly to the carer parent. Child support is payable for children born to parties to a marriage, de facto relationship, same-
sex relationship or where there was no relationship. A carer can apply to Services Australia (Child Support) for administrative assessment regardless of when they separated. The current formula for administrative assessment of child support has these features: •
child support payments are calculated based on Australian research into the actual costs of children •
the combined income of both parents is used to calculate child support payments, treating the income of both parents in the same way •
both parents’ contributions to the cost of their children through care and contact is recognised, and •
children of first and second families are treated equally. The formula and an estimator to work out child support payments under the current system are available on the Services Australia (Child Support) website. Instead of seeking an administrative assessment of child support, the parents can make a child support agreement. A range of agreements can be made, either setting out the amount of child support that must be paid or changing the elements of an administrative assessment made by
FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 2 of 8 © The College of Law Limited Services Australia (Child Support). Agreements can also be made about methods of paying child support such as non-periodic and lump-sum payments. The two types of agreements that set or alter the amount of child support to be paid are: •
binding child support agreements:
each party to the agreement must receive independent legal advice before entering the agreement and must also receive legal advice before terminating the agreement: CSAA s 80C. An administrative assessment does not need to be in place before the agreement is accepted, except where the binding agreement provides for the crediting of a lump sum. This type of agreement can be set aside by the court in limited circumstances, and •
limited child support agreements:
each party to the agreement does not need to receive legal advice before entering into a limited agreement. An administrative assessment must be in place before Services Australia (Child Support) can accept a limited child support agreement. The annual rate of child support payable under the agreement must be at least the assessed annual rate of child support: CSAA s 80E. Limited agreements are easier to end than binding agreements. In practice, lawyers often recommend that a client access the Services Australia (Child Support) website and apply online for administrative assessment of child support. If the client is unhappy with the administrative assessment, they can seek a review of the assessment. Alternatively, particularly for those clients on middle or higher incomes, practitioners may advise and seek instructions to prepare or negotiate the terms of a child support agreement as part of the negotiations between the parties regarding family law issues. The family law courts do not have jurisdiction to make orders for assessment of child support. Child support is dealt with in detail in Practice Paper F103 Maintenance and Child Support
. Advising on parenting matters To properly advise a client in a case involving parenting issues, a lawyer must be familiar with the following: •
relevant sections of the FLA and CSAA •
the power of the court, and •
the issues the court takes into account when making orders. You must guide a client on the dispute resolution processes and how to make an application to a court. The procedures are set out in the court rules, practice directions and notices to legal practitioners and litigants. These rules, practice directions, notices and other useful information can be found on the court websites.
FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 3 of 8 © The College of Law Limited Applications for parenting orders What the court considers A
n application for parenting orders can be made to the relevant court
.
Parenting orders can include orders about who the child will live, what periods of time the child will spend with each parent, parental responsibility and specific issues, such as naming and schooling. In applications for parenting orders, the paramount consideration is the best interests of the child. The interests of the child are defined as “
matters related to the care, welfare or development of the child
”
: FLA s 60CA. A lawyer must advise a client about this provision and encourage the parties to act so as to best meet the interests of the child: FLA s 60D. This standard is objective but is subject to the discretion of the judicial officer having regard to the facts of each case. The FLA sets out the objects and underlying principles that guide the court in parenting cases. These objects and principles must be interpreted and applied in a manner that is consistent with the paramount consideration of determining the best interests of the child. Section 60CC of the FLA sets out the primary and additional considerations the court must consider when determining what is in the best interests of the child. In Western Australia, see s 66C of the Family Court Act 1997
(WA) (FCAWA). The legislation provides two primary considerations: •
the benefit of the child having a meaningful relationship with both of their parents, and •
the need to protect the child from the physical or psychological harm of being subjected to or exposed to abuse, neglect or family violence. See FLA s 60CC and FCAWA s 66C. Under FLA s 60CC(2A), the court must give greater weight to the second consideration. The FLA includes a definition of “
abuse
”
to cover assault, sexual abuse and exploitation, causing a child to suffer serious psychological harm, including where the child is exposed to family violence and serious neglect. In regard to assault, the action that constitutes assault is no longer required to be an offence under a state or territory law: FLA s 4(1). The FLA also includes a definition of “
family violence
”
as “
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful
”
. The definition also includes a non-exhaustive list of examples of behaviour that could constitute family violence: FLA s 4AB(2). When you act for and advise a parent who seeks a parenting order about the care of and living arrangements for a child, or opposes a parenting order sought by the other parent, you need to ask practical questions, including but not limited to: •
What is the age and sex of the child? •
What is the relationship of the child with each parent and other people, such as grandparents? •
How will the client look after the child before and after school and at weekends? •
What accommodation will be provided for the child at the client’s
home and the other parent’s home
?
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FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 4 of 8 © The College of Law Limited •
What are the child’s health needs? •
Who has been the primary carer of the child in the past? Should this change in the future and why? •
Are there any factors that could be detrimental to the child, such as an alcohol or drug problem of the client or the other parent or partner of either parent? •
Are there (or have there been) any family violence orders in place concerning the client or the other parent or partner of either parent? •
Has the child been subjected or exposed to abuse or neglect by a member of the family? •
Is the child at risk of being exposed to abuse or neglect by a member of the family? •
What future proposals are there for the child’s care and relationship with both parents?
•
Is there a need to protect the child from abuse or family violence or the risk of abuse or family violence? How to seek parenting orders in the Federal Circuit and Family Court The Federal Circuit Court of Australia and Family Court of Australia merged to become the FCFCA on 1 September 2021. The FCFCA has two divisions and all Initiating Applications filed in that court will be allocated to a division. A client who cannot resolve their dispute using dispute resolution processes must make an application to the FCFCA following the procedures set out in the court rules, practice directions and court notices to legal practitioners and litigants. Those court rules require the applicant to file and serve an Initiating Application setting out final orders and interim orders they seek. If an Initiating Application is already filed, the applicant may file an Application in a Proceeding for interim or procedural orders. Where final and interim orders are sought at the same time, the applicant need only file the Initiating Application, setting out any interim orders sought. An Application in a Proceeding is only filed when the Initiating Application previously filed did not set out the interim orders. If the applicant seeks any interim orders, an affidavit must be filed with the Initiating Application or with the Application in a Proceeding. If a respondent seeks final and interim orders, they must file a Response to an Initiating Application. Where an Application in a Proceeding was filed, the respondent files a Response to an Application in a Proceeding. The respondent must file an affidavit with the Response to an Initiating Application seeking interim orders and with the Response to an Application in a Proceeding. Alternatively, a party may file a Submitting Notice if they are served with an Initiating Application seeking final orders
and do not want to contest the relief sought. The party filing the notice must state that they submit to any order the court may make, include an address for service and state whether the party wants to be heard on the question of costs. This process enables a party to avoid undue expense of filing documents and to remain informed about the proceedings. A short affidavit (up to 10 pages) must be filed with the Initiating Application, whether it contains final orders, interim orders or both.
FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 5 of 8 © The College of Law Limited Family dispute resolution All parties who apply to the FCFCA for parenting order(s) or seek changes to any existing parenting order(s) must obtain a certificate from a registered family dispute resolution practitioner (FDRP) that confirms that the parties have attempted family dispute resolution (FDR). A party is not required to attend FDR in some circumstance. Details of FDR are set out in Task 1 notes “
Taking instructions and advising in family law matters
”
. Mandatory pre-action procedures Parties intending to commence proceedings in the FCFCA for orders about parenting must follow certain pre-action procedures before they can file an application to start a court case in the FCFCA. These pre-action procedures apply to cases that will be filed in the FCFCA. Case management and practice directions in the courts The court’s case management system
, as well as the practice directions issued by the court, set out the timing and preparation requirements for each step, from an application to final hearing and each court event. In the FCFCA, FLA Div 12A of Pt VII sets out the principles for conducting child-related proceedings. The FCFCA Central Practice Direction, Family Law Case Management (FAM-
CPD)
, along with the applicable FCFCA family law practice direction(s), set out the case management and case listing pathway of matters heard in the court. Further, Central Practice Direction, Family Law Case Management (FAM-CPD)
applies to all family law applications and sets out the 10 core principles that underpin the exercise of the family law jurisdiction of the courts. The core principles are designed to facilitate the safe, just and timely resolution of family matters. Practitioners should familiarise themselves with the core principles. All steps taken in proceedings before the court, including commencement of proceedings, should follow these principles. The ten core principles include (see para 3 of Central Practice Direction, Family Law Case Management (FAM-CPD)
): 1. Risk 2. Parties’, lawyers’
and the Court’s obligations an overarching purpose
3. Efficient and effective use of resources 4. Approach to case management 5. Importance of dispute resolution 6. Non-compliance 7. Lawyers obligations about costs 8. Identifying and narrowing issues in dispute 9. Preparation for hearings, and 10. Efficient and timely disposition of cases.
FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 6 of 8 © The College of Law Limited Federal Circuit and Family Court of Australia
The structure of the FCFCA is designed to be innovative, fair and efficient and focuses on risk, responsiveness and resolution, by: •
improving early risk identification and safety of children and vulnerable parties •
encouraging smarter ways to separate with less acrimony, less cost and more dispute resolution, where it is safe to do so •
expecting compliance with court orders •
enhancing national access to justice for vulnerable parties and regional communities through the use of technology, and •
aiming to resolve up to 90% of cases within 12 months. The legislative changes have resulted in major changes, which include: •
a single point of entry for all family law matters •
a new case management pathway, which includes specialist list •
harmonised family law rules •
significant emphasis on dispute resolution •
child expert reporting process, and •
appellate jurisdiction. At the first court event in the FCFCA, lawyers must be prepared and have a good knowledge of the case. At the first court event, the FCFCA may: •
give directions •
make an order that the parties attend FDR •
fix a date for the hearing •
conduct an interim hearing, or •
finally determine the application. The parties to an application about children’s matters may be ordered to attend FDR at either the court or a community-based organisation before the date fixed for the hearing of the application in the FCFCA. Child-related proceedings in the Federal Circuit and Family Court of Australia Disputes in the family courts, particularly those involving children, are dealt with quite differently to commercial disputes in other courts where the parties to the litigation are truly adversarial. Increasingly, the family courts have moved to a less adversarial model to allow a less formal and more collaborative approach to dispute resolution. The FCFCA operates a system under Div 12A of the FLA whereby child-related proceedings are: •
focused on children’s future needs •
flexible and meet the needs of litigants •
expected to be less expensive and time-consuming than traditional trials, and •
less adversarial and formal than usual court cases.
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FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 7 of 8 © The College of Law Limited Continued focus on dispute resolution after filing an application You must advise your client that, although they cannot resolve their dispute and have to make an application to a court, the court will still focus on dispute resolution so the best interests of the child/ren can be met. Procedures for dispute resolution are set out in the court rules and practice directions. Chapter 4 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021
(Cth) requires the parties to use their best endeavours to reach an agreement. To effectively represent a client at each court event, a lawyer must be aware of the nature of the court event and the different powers of the judicial officer under the FLA to make the order sought by the parties. Many judges in the FCFCA ask lawyers to use a problem-solving approach to disputed matters, to try to reach agreement. Further, the court has access to a family consultant. Family consultants are an important part of child-related proceedings. The family consultant may also be involved in the conduct of child dispute conferences with a registrar. Family consultants assist parties to identify a
nd resolve issues in children’s matters before the courts, but any disclosures the parties make to family consultants are not privileged and may be adduced in court. Applications to the court in family matters The common types of application that are made to the FCFCA include: •
an application for divorce or validity of marriage proceedings. All divorce applications are currently heard by the FCFCA (except in Western Australia, where they are heard by the Family Court of Western Australia). The FCFCA hears applications for nullity or validity of marriage, and •
an application for other relief or orders, including parenting orders or financial orders in relation to property or spouse maintenance. The competency standards for an entry level lawyer do not cover divorce and so divorce is not dealt with in detail in this course. For more information on divorce, see Practice Paper F101 Divorce
. Advising on parenting orders is dealt with in Practice Paper F102 Parenting Applications
. Advising on financial orders (property or spouse maintenance) is dealt with in Practice Paper F105 Property Applications
and Practice Paper F103 Maintenance and Child Support
. Obligations of lawyers Lawyers doing family law work should be familiar with: •
the provisions they must comply with pursuant to FLA ss 60D and 63DA (FCAWA s 78A) •
the need to provide the information set out in FLA s 12E (FCAWA s 65F), which refers to court brochures, and •
the pre-action procedures set out at Federal Circuit and Family Court of Australia (Family Law) Rules 2021
(Cth) Sch 1 Pt 2 cl 6(1)
–
(5) (in relation to parenting proceedings) and Sch 1 Pt 1 cl 6(1)
–
(5) (in relation to financial proceedings).
FAM T1 A1 Advising on child support and parenting matters notes ALL STATES 2023_08_23.docx Page 8 of 8 © The College of Law Limited Lawyers should review and apply the Best Practice Guidelines for Lawyers Doing Family Law Work
, issued by the Family Law Council and the Family Law Section of the Law Council of Australia. Pursuant to paragraph 1.1 of the Guidelines, best practice in family law is characterised by: •
a constructive and conciliatory approach to the resolution of family disputes •
the minimisation of any risks to separating couples and/or children by: o
alerting separating couples to treat safety as a primary concern o
avoiding arguments in front of children, and o
keeping children out of conflicts arising between separating couples •
having regard to the interests and protection of children and encouraging long-term family relationships •
narrowing the issues in dispute and the effective and timely resolution of disputes, and •
ensuring that costs are not unreasonably incurred.