Trusts may be ubiquitous in the Australian business landscape, but they are not simple structures to administer. If you have a trust, or are establishing a trust, one aspect you need to consider is the ‘governing law’ or the jurisdiction of the trust. Let us tell you why…
One of the hardest aspects of any relationship breakdown is deciding how you will care and provide for your children. There are lots of factors to consider, but the overriding concern for any parent is making sure your children are happy and well looked after.
Unfortunately, when a relationship breaks down it’s often difficult to communicate with your ex-partner or make good decisions together. Emotions can get in the way of what is really important. When this happens, it can become necessary to legally document your parenting arrangements to make sure that both parents stick to what has been agreed.
From a legal perspective, there are some key aspects to consider when agreeing a parenting arrangement. We discuss each of those briefly below, to give you a starting point for your negotiations.
Parental responsibility is all of the powers, duties and rights associated with making decisions on behalf of your child. This is not in relation to the everyday decisions, but rather the major decisions for the child, such as healthcare, education, religious upbringing, changing a child’s name and the issuing of passports.
It is usually presumed that parental responsibility will be equally shared between the parents. This means that all major decisions should be made in consultation with each other.
However, if it is established that one of the parents has engaged in abusive conduct or family violence, sole parental responsibility may be awarded to the other parent. This means that the other parent does not need to consult with the abusive/violent parent in order to make decisions, which is safer and less stressful for both the parent and the child.
If you think sole parental responsibility would be appropriate in your circumstances, but the child’s other parent will not agree, you will need to apply to Court. The Court will want to know full details of the reasons why you think sole parental responsibility is necessary, which may include sensitive or difficult topics. You should carefully document the instances of abuse or violence so you are able to demonstrate why sole responsibility is necessary.
Time spent with each parent
Where parents have shared parental responsibility, equal time or ‘substantial and significant time’ with each parent should be considered. The age and needs of the child are also factors relevant to the time your child should be spending with their respective parents.
When children spend equal time with each parent this is known as a “shared care” arrangement. This can be on a week-about basis (where on an alternate basis the child will spend one week with one parent, and the following with the other), or may be broken up into smaller blocks. In other cases, the children may ‘live with’ one parent and ‘spend time’ with the other. This arrangement is more common with older children that are able to have proper input into what they prefer. This arrangement may also be more suitable for families where one parent works away from home, or where one parent lives much closer to the children’s school.
Where there is more than one child, parents can enter into different arrangements for each child. Living arrangements can be made to be flexible to accommodate for the changing needs and wants of each child. It is also important to consider arrangements for school holidays and special occasions, such as Christmas, Easter, Mother’s/Father’s Day and birthdays.
Parenting arrangements should be documented to avoid confusion and protect both parents. If you are able to agree the parenting arrangements, your agreement can be recorded in a Parenting Plan or via Consent Orders lodged with the Court.
A parenting plan is a non-binding written agreement between separated parents which outlines the agreed arrangement with respect to their children. Although it is an informal document, it can be considered by a Court if a parent feels the need to apply for Court intervention in the future.
On the other hand, Consent Orders in relation to parental arrangements have the same legal effect as an order of the Court. To apply for Consent Orders, both parents must agree the terms of the orders and file an application in the Family Court for the orders to be made. The Court will consider the proposed arrangement and, if it considers the arrangement appropriate, will make the Consent Orders. The Consent Orders are then binding on the parents.
Parents have the flexibility of reaching agreement with respect to the financial support for children (up until they reach 18 or complete schooling) without relying on the Child Support Agency.
The terms of the agreement do not need to be confined to cash payments, but can include arrangements about who will meet education expenses, health fund payments and other major living costs.
What is appropriate for you will depend on a combination of factors such as earnings, the ability to work, other financial commitments, and the particular living costs of your children. It is also common during a separation for parents to take steps to reduce the ‘optional’ living costs of their children if those costs are no longer sustainable. However, it is important that both parents agree on any significant decisions, such as changing a child’s school (except when sole parental responsibility has been awarded to one parent).
An agreement regarding financial matters should be recorded to avoid future arguments. The main ways to record a financial agreement about children are via a Limited Child Support Agreement or a Binding Child Support Agreement. We can provide you with guidance and advice regarding which option is the best fit for you.
Post-separation parenting can be complicated. We will work with you to reach an agreement that is in-keeping with your children’s best interests. We will then make sure the agreement is documented to give you certainty and reduce the potential for future arguments.
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If we sound like people you can work with, call us now on 1300 654 590 and speak directly with a great lawyer.
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