Have you recently separated from a de facto partner and are unsure about your rights and responsibilities regarding your child? De facto separation, especially when children are involved, can be complicated and emotionally challenging.
Many parents are left wondering about custody, child support, and whether they need to take legal action.
In Australia, when parents separate, whether in a marriage or a de facto relationship, the primary focus of the law is always the best interests of the child. This is the case under the Family Law Act 1975, which governs parenting arrangements for separated families, including those in de facto relationships.
What Are My Legal Rights Regarding Custody and Parenting Arrangements After a De Facto Separation?
After a de facto separation, both parents have equal parental responsibility for their child unless the court orders otherwise. This means both parents have the right to be involved in making long-term decisions about the child’s education, health, religion, and other important aspects of their life.
However, equal parental responsibility doesn’t always mean equal time spent with the child. The time a child spends with each parent is determined by what is in the child’s best interests.
In many cases, parents can reach an agreement on their own about how to share time with their child. This is often referred to as a “parenting plan.” If both parents agree, they can make this plan legally binding by turning it into “consent orders,” which can be approved by the court.
If parents can’t agree, they may need to go through family dispute resolution (mediation) before taking the matter to court. The court will then decide on a parenting order, considering factors like the child’s relationship with each parent, the ability of each parent to meet the child’s needs, and the child’s safety.
Also Read: How to Cancel a De Facto Relationship QLD
How Is Child Support Determined in a De Facto Separation?
In a de facto separation with a child, both parents are financially responsible for supporting the child, regardless of whether they were married or just in a de facto relationship. Child support payments are calculated through the Department of Human Services (DHS) using a formula based on a few key factors:
- Both Parents’ Incomes: The child support formula takes into account both parents’ incomes, ensuring that each parent contributes fairly based on their ability to pay.
- The Number of Children: The number of children the separated couple has will affect the amount of child support required.
- Care Arrangements: How much time each parent spends caring for the child is a significant factor. If one parent has the child more often, the other parent will likely need to pay more in child support.
- Living Costs: The cost of raising children, including expenses for their education, healthcare, and daily needs, is also considered.
The DHS can make an assessment for child support, or parents can come to a private agreement. However, if one parent does not pay the agreed child support, the DHS can enforce payments.
Do I Need to Go to Court to Formalise Parenting Arrangements After Separating from a De Facto Partner?
No, you don’t have to go to court to formalise parenting arrangements if both parents can agree on how to care for the child. Many families prefer to settle their differences outside of the court system, as it can save time, stress, and legal costs.
If parents can reach an agreement, they can either create a parenting plan or seek consent orders through the Family Court. A parenting plan is a written agreement between both parents about their child’s care. It is not legally binding but can show the court the intentions of both parents if issues arise later.
Alternatively, consent orders are legally binding and enforceable by the court. To obtain consent orders, parents must submit their agreed parenting arrangements to the Family Court for approval. This gives both parents the confidence that the agreement will be upheld by law.
If you can’t reach an agreement through discussion or mediation, you may need to apply for parenting orders from the Family Court. The court will then decide based on what’s best for the child, considering factors like the child’s relationship with each parent, their safety, and the parents’ ability to provide for them.
How Can We Resolve Disputes About Parenting and Child Custody Without Going to Court?
The Australian family law system encourages parents to resolve disputes without going to court, as this often leads to better outcomes for children. One of the most common ways to resolve disputes is through family dispute resolution (FDR), which is a form of mediation.
In FDR, a neutral third party (the mediator) helps parents communicate and reach an agreement on parenting arrangements. This process focuses on the needs of the child and encourages parents to put their child’s best interests first. FDR is usually quicker and less expensive than going to court.
If FDR is successful, parents can then create a parenting plan or apply for consent orders to formalise their agreement. If mediation fails and no agreement is reached, the mediator will issue a certificate stating that FDR was attempted. This certificate is required if a parent wants to apply for parenting orders in court.
Also Read: Family Dispute Resolution QLD: Questions Answered
What Happens If My Ex-Partner Refuses to Comply with Agreed Parenting Arrangements?
Unfortunately, there are cases where one parent may refuse to follow agreed or court-ordered parenting arrangements. When this happens, the other parent has options to ensure the agreement is followed.
If you have a parenting plan, which is not legally enforceable, you may need to seek consent orders or apply for parenting orders from the court to ensure the agreement is followed.
If you already have consent orders or a parenting order in place, the court can step in. The court may take enforcement action, which can include:
- Changing the current orders to make them clearer or more practical.
- Ordering makeup time with the child if time was missed.
- Imposing penalties, including fines or even jail time, in extreme cases of non-compliance.
If you believe your ex-partner is not following the orders due to genuine concerns for the child’s safety or well-being, you can also apply to the court to change the parenting orders.
Also Read: A Guide to Parenting Orders in QLD
Your Child’s Well-Being Comes First
De facto separation with a child can feel overwhelming, but the law aims to ensure that children continue to have meaningful relationships with both parents, wherever possible. While it’s natural to feel unsure about your rights and responsibilities, understanding the legal process can help you make the best decisions for your family.
Need Legal Support? Contact Walker Pender Today
If you’re dealing with a de facto separation and need help understanding your rights or resolving a dispute, the team at Walker Pender is here to help. With decades of experience in Australian family law, we provide expert advice to protect your child’s best interests and guide you through every step of the process.
Contact us today for a consultation, and let us support you during this challenging time.
