Your role as a parent changes significantly after divorce. You are obligated to ensure your child’s future best interests, regardless of your feelings for each other.
In this article, we will discuss two contentious areas of parenting obligations: organising support payments and negotiating school arrangements.
Key Takeaways
- Child support and maintenance are distinct financial obligations, with support typically for children under 18 and maintenance potentially extending into adulthood under certain conditions.
- Child support can be arranged through private agreements or a Services Australia assessment, offering flexibility in how parents fulfil their financial responsibilities.
- Binding and limited child support agreements allow parents to formalise their support arrangements, with or without a Services Australia assessment.
- Adult child maintenance is applicable for children over 18 who require financial support due to education or disabilities and must be ordered by the court.
- The Family Law Act emphasises the importance of parents having equal shared responsibility for significant decisions, including education and post-separation.
- Effective communication and legal advice are crucial in navigating child support and maintenance arrangements, with mediation recommended before resorting to court orders.
Financial support
Parties may need to make certain payments after divorce, depending on their ex-partner’s financial capacity. Financial assistance may apply to married couples or in a de facto relationship. The assistance associated with childraising comes in the form of child support or maintenance.
Child Support Vs Child Maintenance
People commonly ask, what is the difference between child support and child maintenance? It is a good question because there is a distinct difference between these payments, how they apply and what they achieve.
Child support arrangements are codified in the child support scheme, which governs the registration, payment and enforcement of liabilities. Previously, the system was administered by the Child Support Agency. In 2011, this responsibility was transferred to Services Australia, formerly the Department of Human Services.
Child Support Legislation
Under the Family Law Act, parents must maintain their children according to their financial resources. For dependent children under 18, financial arrangements requiring one parent to provide monetary compensation for their upkeep are called child support.
However, what happens when a child reaches the age of 18? Are parents still required to provide financial support for adult children? In exceptional circumstances, the answer is yes. Under regulations set out in the Family Law Act, there are situations in which financial support from the parents is still required, even though the child has reached adulthood. This arrangement is referred to as child maintenance.
How Is Child Support Arranged?
Child support can be arranged in a private financial agreement or a child support assessment.
Private financial agreement
If parents can agree on how much financial support is paid through child support and in what manner, they can formalise their agreement as a binding child support contract.
Child support agreements can take two different forms: limited support agreements and binding support agreements.
Limited agreements
Financial support through limited agreements allows parents to enter into a contract that details who will pay child support and in what form. Parents must base the amount payable on an administrative assessment from Services Australia. An evaluation can be requested by the parent who has primary care duties. This assessment takes into account the circumstances of the couple and the living arrangements for the children.
If an assessment has been provided, no legal advice is necessary. Regardless, seeking legal advice before entering into any agreement is highly recommended.
Binding agreements
Binding agreements are similar to limited agreements as private parties can enter them without involving the Court. However, they differ because parents don’t require an independent assessment from Services Australia concerning appropriate payments. This means any amount both parents can agree to is valid.
Due to this, unlike limited agreements, parents must seek legal advice independently to understand if the binding contract is in their best interests.
Child support assessment
If parents cannot agree, they can apply to Services Australia for a child support assessment. The assessment will set out how much must be paid and by whom.
How Is Child Maintenance Arranged?
Adult child maintenance is like child support. A parent can seek care for a child over 18 with financial needs due to their ongoing tertiary education or mental or physical disability.
You must apply to the Court to ask for a maintenance order. An application can be made by the parent providing primary care or a child who is 18 or about to turn 18. The Court decides applications for a child maintenance order on a case-by-case basis.
Court-Ordered Maintenance for Child Support
Usually, the Family Law Act doesn’t require a positive relationship between the child and the parent who is ordered to pay child maintenance. In limited circumstances, the Court may consider the nature of the relationship if not doing so would cause undue hardship or injustice.
The Court determines if maintenance should be paid by what is reasonable in the circumstances. The Court balances the parents’ resources against the child’s actual and potential resources.
Other factors that are considered include:
- The age of the child;
- Any special needs of the child, including physical or intellectual disability;
- The financial earning capacity, income and financial resources of the child;
- The financial capacity of the parents;
- How the child is being educated or trained and how the parents expected them to be educated or trained;
- physical or mental disability;
- The likelihood the child will complete their education.
Child maintenance orders for a child over 18 will be in force until a day, or period, specified in the order if the Court is satisfied that the maintenance is necessary. In some circumstances, it can be overturned.
Support payments aren’t a parent’s only concern. Organising their children’s education is also a critical factor.
Do you need legal assistance with your family law matter?
Negotiating Schooling Decisions
The pandemic caused many complications in co-parenting arrangements. Once the restrictions ended, parents settled back into the school year routine.
This raises the question of how best to organise your child’s education after a separation. Handling enrolments, school costs and what school they’ll attend will be difficult and stressful. How do you make decisions if there’s a communication breakdown?
What Does the Law Say?
The Family Law Act 1975 assumes it’s in the child’s bests interests for parents to have equal shared responsibility. Equal responsibility means parents will share decision-making on their child’s major long-term issues.
Equal responsibility applies unless the Court has reason to rule against it. The Court may do this if there’s evidence a parent has harmed the child or is not acting in their best interests.
Education is a significant decision that can cause much conflict between parents. Decisions around your child’s education may include:
- Enrolling your child in school;
- Removing your child from school;
- Addressing behavioural issues;
- Attending to poor academic performance or learning difficulties.
It would be best if you cooperate with your ex-spouse. If you’re making decisions without them, the Judge may hold that against you if the matter goes to Court. The Court may take this as evidence of your unwillingness to encourage your child to have a relationship with both parents.
Stay Updated
Each parent must sign their child’s enrolment form to ensure the school has a contractual relationship with both parents. If only one parent signs, the school will seek payments from that party without regard to any private agreement. The contractually bound parent may also seek to change the child’s school without your agreement.
Ensure the school updates both parents on information such as due fees and enrolment dates. If communication between parents has broken down, seek information directly from the school.
Shanahan Family Law can also assist with parenting plans or consent orders. These options help mitigate communication problems.
Seek cooperation
Applying for a parenting order should be the final option. Before taking court action, seek mediation. Dispute resolution can facilitate constructive dialogue. You can focus on developing strategies to resolve conflict through this dialogue.
If your matter is urgent, Shanahan Family Law can help you apply for interim orders in particular circumstances.
Conclusion
Financial support and children’s education are two vital areas of parental responsibility. However, they can also be highly contentious points. The team at Shanahan Family Law can assist in resolving parenting concerns.
- Do you want to discuss an application for support or maintenance?
- Do you want to ensure you stay in the loop with parenting matters?
- Are you concerned about school-related decision-making?
We recommend seeking legal advice immediately. Approaching Shanahan Family Law as early as possible may allow us to assist in finding a child-focused resolution.
If you need help with family law matters, contact us for a free discovery call.
The above information is intended to be general advice only and is not a substitute for personalised advice. Because it does not consider your individual circumstances, it is not intended to be relied upon, and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.
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