Parenting, property and child support
Last updated: January 2020
I have been unable to obey a parenting order or parenting plan arrangement because of a disaster. What should I do?
A parenting plan is a signed written agreement between parents (and others, if involved) that sets out the care arrangements for the children. It may affect the amount of child support you receive.
A parenting plan must be in writing, dated and signed by both parents (and any other people involved). You can change your parenting plan at any time, but it must be signed and dated again.
Parenting plans are not legally enforceable. However, if you have a parenting order a court will say that any later parenting plans change this order. The court would expect you to act in accordance with the latest parenting plan unless you can show that you agreed to the plan because of threats or intimidation.
The court cannot enforce a parenting plan. If you have not followed a parenting plan and you have no reasonable excuse, the other parent may apply to the court for a parenting order to formalise what is in the parenting plan, or come up with an alternative arrangement.
A parenting order is an order made by the court.
The court takes breaches of parenting orders very seriously. If you breach an order, you can be referred to a parenting program, fined, made to provide compensatory (‘make-up’) time with the child and parent or you may even face prison. However, the law says that a parent may have a reasonable excuse for breaking the arrangements in a parenting order.
You may have a reasonable excuse if you believed it was necessary to break the order to protect your health and safety, or the health and safety of your child or if you did not understand your obligations and the court is satisfied you should be excused. For example, breaking a parenting order to protect the health of a very sick child (supported by proper medical evidence) could be considered a reasonable excuse. You will no longer have a reasonable excuse to break an order once the immediate danger to health and safety has passed.
You would need to show the court how and why the disaster stopped you from obeying the parenting order.
Always try to help the children stay in touch with the other parent so their relationship can continue until the children are able to see the other parent in person.
The children seem really affected by their experience of a disaster and do not want to spend as much time with the other parent. This breaks the arrangements set out in a parenting order or parenting plan. What should I do?
When children suffer trauma, they often regress (go backwards in their development). Often the children do not wish to be apart from the parent they spend most of their time with. Try to talk with the other parent about how the children are feeling, perhaps with the help of a child and family counsellor. This will help you both make decisions based on the needs of the children. Contact a Family Relationship Centre on their Family Relationship Advice Line to get the number of a counsellor near you.
If the other parent will not agree, you may need to change your parenting order or attend mediation (also known as family dispute resolution). If you have a parenting plan, you may need to apply for an order or attend mediation. You will need to show the court why the order needs to have the arrangements you would like and that this is in your children's best interests. If you do not obey the arrangements set out in the order in the meantime, you may need to defend your decision to the court. You can get legal information and help to do this.
I want to move my children from the disaster-affected area permanently. Do I need the other parent’s permission?
If you and the other parent share equal parental responsibility for your children, you must talk to each other and try to come to agreement about major long-term decisions. This includes if you plan to move to another area.
You must make a genuine effort to try and get agreement, before you make arrangements. If you cannot agree, a family dispute resolution service may be able to help. If you cannot agree you will need to apply to the court to allow you to move. The court must consider whether it is in the children’s best interests, balanced against your freedom to move.
A court decision may take many months, sometimes years. There is no guarantee that the children will be allowed to move.
If there are court orders or an agreement that says the children are to live with you and spend time with the other parent and moving to another area would make it difficult for the children to see the other parent, you:
- must talk about this with the other parent first
- will need to get the orders changed to show the new arrangements
- can formalise your new agreement either by filing a 'consent' order with the court or by making a parenting plan (if your court orders were made on or after 1 July 2006).
In most cases, you will need to try family dispute resolution before you can apply to the court.
You should think about the children’s best interests at all times. If there is family violence or child abuse, get legal advice and other help. There are support services that may help you with these issues. See Where to get help.
My situation has changed because of a disaster. I want to change my parenting order or parenting plan because of this.
How do I do this?
First, make sure your plans are in the best interests of the children. This is the law’s main consideration. Try to talk about the changes and come to an agreement with the other parent. If you cannot come to an agreement, you need to talk with a mediator . Contact a Family Relationship Centre on the Family Relationship Advice Line or a Family Mediation Centre to find a mediator near you. See Where to get help.
You can change a parenting plan by making a new one which is dated and signed by both parents. If you have a parenting order that was made on or after 1 July 2006, and both parents agree on the changes, you can change the order by making a parenting plan.
If the other parent does not agree to the changes and you want to change or make a parenting order, you must first try family dispute resolution. Sometimes you do not have to do this – for example, if there is family violence or in situations of urgency. Get legal advice if this applies to you.
Child support issues
Because of a disaster I am on a lower income. How does this affect my child support payments?
If you pay child support through the Department of Human Services (Child Support) you should call 131 272 and tell them your new income so that your child-support payments can be recalculated.
If the disaster affects a whole community, the Department of Human Services might suspend or change child-support payments for people living in that area until individual parents can be contacted. Department of Human Services (Centrelink) and Child Support may help families financially support their children. You may be able to get income support or a lump sum payment. You may receive a text message from the Department of Human Services to advise you about this.
If you pay child support, some of the options available may include:
- reducing payments to take into account your lower income and/or financial hardship
- suspending repayment of debt, as long as ongoing child support payments are made
- suspending pay withholdings from third parties
- reducing your child support debt to take into account your lower income and/or financial hardship.
If you receive child-support payments, your options may include:
- increasing child-support payments from the other parent
- applying on hardship grounds for early release of a child-support payment held by Child Support.
- receiving higher payments of family tax benefits or other Centrelink benefits.
If you have a private agreement or court order about your child-support payments, you may need to work out a new arrangement with the other parent. Get legal advice if this applies to you.
Because of a disaster the children are no longer in my care. What happens to my child-support payments?
You should contact either Department of Human Services (Child Support) on 131 272 or (Centrelink) on 13 61 50 to let them know of the change in your care situation. Both Child Support and Centrelink will use the same care percentage to calculate your child support and family tax benefits (if any).
I am separated from my partner. I have paid most or all of the mortgage, but the property is still in both our names. If I get insurance money (or the house is rebuilt) how much is my former partner allowed to get?
If you have not yet done a family law property settlement, the insurance money (or the new house) is still 'marital/relationship property', just as the old house was. This means your former partner may be entitled to part of it. Their entitlement may be limited by a requirement of a third party (such as a bank) that may have a legal interest in rebuilding the property.
The portion your former partner is entitled to depends on many things, including the contributions you both made to the marriage or relationship. This includes financial contributions and non-financial contributions such as child minding, housekeeping or the upkeep of property. Your entitlements also include the needs each of you has for the future. It is very important that you get legal advice about this.
My house is being used as security against my former partner’s property. Do I have to pay the debt on their property if their house was destroyed or my house was destroyed?
The law says the buildings on a property are only part of the property. The land itself has value of its own.
If your former partner still owes money on their property, you will still have to pay the debt subject to any insurance claims, even if your own property (or theirs) is now worth less because of the disaster. Generally, your former partner’s lender (mortgagee) will have a mortgage over your property. You should get legal advice and speak to a financial counsellor about this.
My income has changed due to loss of business or employment because of a disaster. Can I change my property settlement to take this into account?
A property settlement may be changed if it would be impractical for the order or part of the order to be carried out due to changes in your circumstances since the settlement was first made. However, this will depend on many things, including whether you get any compensation or insurance for the loss of your income.
You may also be able to claim spousal maintenance. Get legal advice to find out if this applies to you.