Compared with many countries, the divorce rate in Australia is higher, and there are many macro-reasons such as different immigration background, multi-cultural integration or preservation of traditional consciousness. In 2015, 40 percent of marriage ended with divorce, and more than 50, 000 children under the age of 18 faced parental divorce, according to the Australian Bureau of data.
For Chinese, "home" is always the most important belonging, "home and everything" is also the expectation of every member of the family. However, if there is a dispute at home, please do not ignore, evade or take an inappropriate way to deal with it. If necessary, seek law assistance to protect yourself, children and families.
Australia's Family Act (Family Law Act) covers most family law matters. The Family Act deals with specific family matters (such as divorce, children, property, etc.). If you have marry or are living with a person, the Family Law provides for any dispute over your children or property. Even if you are not in a marriage or cohabitation relationship, the Family Law provides for any disputes with your children, such as where the child should live.
Therefore, the topic of law's "Overview of Australian Family Law" aims to help Chinese in Australia understand the rights, obligations and responsibilities in dealing with related family relations, marriage property, child rearing, and so on, in order to better face and resolve family disputes. In the hope that the family can enjoy the full moon.
The topic is divided into the following chapters:
The following is an overview of Australian Family Law (4) | Children and Child rearing:
Parents who have separated or are about to be separated can receive assistance related to the change they face, including information, economic assistance and social welfare support.
The following table provides common law questions and explanations for parents or legal guardians on "Child and child custody rights". However, since the situation of each family is not the same, the help information provided below cannot cover all situations, for example, consult the Family Code lawer or the Social Welfare Agency.
We have just separated and disagreed with regard to the upbringing of our children. What should we do?
The first attempt should be made to mediate disputes. Before you bring up a prosecute lawsuit over child-rearing, you should:
- (a) seek to resolve disputes through consultation and mediation; and
- Try to communicate with the other party in a reasonable way.
There are many agencies that help both sides negotiate and mediate family disputes, including state law assistance, family relations hotline (Family Relationship Advice Line), and family relations center (Family Relationship Centres), among others.
Before I bring up the prosecute lawsuit, do I have to settle a family dispute first?
Before you begin court proceedings over your children, you must accept family dispute resolution unless your case is urgent or involves special factors such as family violence.
Court usually requires family dispute mediators to issue a mediation certificate before considering child-rearing cases.
What kind of agreement can we reach on child-rearing arrangements?
You don't have to get a formal court order on maintenance arrangements. You can enter into informal agreements. Many separated parents have reached informal agreements on the upbringing of their children.
An agreement is usually negotiated between the parents with the help of the mediation department (or without the participation of the mediation department). Neither parent can compel the other to be bound by an informal agreement.
Usually, it's important to get some law advice because agreements about who your children will live with can also affect property and alimony issues.
- The (Parenting Plan): parenting program allows both parents to reach an agreement on child-rearing arrangements, known as parenting plans. Lawer, Family Counsellor, Family dispute Mediator, or Family Counsellor can help you and your ex-spouse develop parenting plans. Parenting plans must be written, signed and dated. The content of the parenting plan may be changed by a separate written agreement. Parenting plans do not constitute a law obligation on either side. However, if you later participate in the court lawsuit on child rearing, court will take into account the terms of the agreement reached between the two parties in the parenting plan.
- Agree to order (Consent Orders): this is an agreement reached after consultation with the other parent, usually with the help of the lawer or the dispute settlement department. The consent order is made on the court and approved by the court, which is binding because court can enforce the agreement.
What is a parenting order? What matters does court consider when issuing a parenting order?
Court will be based on the best interests of the child in deciding what kind of parenting order is to be given. According to the law, in determining what is the best interest of the child in question, court should first and foremost consider:
- The benefits that good relationships with parents can bring to their children;
- Protects the child from physical or psychological harm and protects him from abuse, neglect, or family violence. The court must pay more attention to this consideration.
Other considerations include:
- (B) any views expressed by the children of the parties concerned, subject to consideration of the degree of physical and mental maturity of the children of the parties concerned;
- The relationship between the children and their parents, as well as with other important persons such as grandparents, brothers and sisters;
- (B) the impact of changes in living arrangements (including separation from brothers and sisters) on children;
- Take into account, respectively, the ability of the parent and the father to meet the needs of the child; and
- Paternal and maternal attitudes towards children and parenting responsibilities.
Court's parenting order covers the following transactions:
- With whom the child will live;
- The amount of time that the child will spend with one of the parents (or someone who has a more important relationship);
- How to allocate parental responsibilities;
- How parents will communicate on issues related to their children; and
- How the dispute will be resolved against the issues involved in the order.
Parental responsibility refers to the duties of parents to their children, as well as the major decisions made by parents regarding their children. Each parent bears the same parental responsibility to the child unless court orders change.
Court first assumes that both parents will bear the same parental responsibilities unless the child has been abused, the family violence, or it is not in the best interests of the child to do so. This means that parents need to consult with each other on a variety of long-term issues that will have an impact on the growth of their children, such as their education, religious beliefs, health, and children's names. As well as the changes in life arrangements make it difficult for children to live with the other side of their parents and so on.
When court orders parents to assume the same parental responsibilities, court will also consider whether it is in the best interests of the child and whether it is feasible for the child to spend the same time or a lot of time with his or her parents separately. The court will take into account the distance between parents, the impact of the proposed arrangement on the child, and the willingness of both parents to cooperate.
Can children decide who they want to live with?
Court has the right to rule on grievances.
Who will 18-year-old children live with, and how long they will live with one of their parents. In the case of a child of no more than 18
At age 16, court will not just listen to the child himself. Court must take into account the opinions of each child, but the importance of these opinions depends on the child's physical and mental maturity and level of understanding. The opinion of older children is very important to court.
Can I change my child's last name?
To formally change your child's name, you must apply to the state birth, death and marriage Registry (Registry of Births, Deaths and Marriages) for change of name. If the child is 12 years old,
At age, the change of name is subject to the consent of the child himself.
Renaming requires the consent of both parents or, if not feasible, an order from court. Either parent may apply to court for permission from the court to change the child's surname (when the other parent disagrees), or request court to prevent the other parent from changing the child's surname.
Court will make a decision in the best interests of the child. For example, court may consider that a child may be embarrassed by a different surname from a parent who lives with him or that changing the child's name may confuse the child. However, if both parents maintain relationships with their children, court rarely approves changing the child's last name.
Can I take my child out of Australia without permission?
If you take your child out of Australia without permission and the court is in the process of handling the case or has been ordered to do so, your conduct may constitute a crime.
There are agreements between Australia and many countries, whether or not ordered by the court, that require them to send their children back to Australia.
Court ordered me to visit my children, but my ex-spouse wouldn't let me see them. What can I do?
If the other parent violates the court command for your child, you can:
- Seek to resolve disputes through the mediation department (see the back of this manual), o
- You can apply for court to find the other party violating (breaking) the parenting order.
Court will take the violation of the court command seriously. According to the circumstances, one party who disobeys the court order will receive a parenting course, (Parenting Program), will be fined, compensate the other parent for the time spent with the child, and may even go to jail. In the event of a violation of an court order, the party violating the order must have a reasonable reason. For example, a child suffering from a serious illness (with appropriate medical certificates) can be regarded as a legitimate reason for a parent's violation of the court order.
If the breached court order fails to continue, the court may order both parents to attend parenting courses or postpone the trial of the case, considering changes to the order.
The kids have been living with me since we broke up, and I'm going to move to leave now. Can I take the baby and go straight away? Does this require permission from the other parent?
The Family Law clearly stipulates that the child has the right to know and shall be taken care of by both parents. However, there are many factors that need to be taken into account when one of the parents needs to be relocated, and when such a move affects the regular meeting and communication between the child and the other parent, there are a number of factors to be taken into account:
- When there is a court command for a child: you should first determine if your move is in violation of the court command based on the contents of the court command. For example, if the court command requires your child to spend the weekend with the other parent and you plan to move from Sydney to live on the Gold Coast, your relocation is likely to violate the court command. In this case, you should obtain the consent of the other parent before moving, or modify the court command through court.
- When there is no court command for the child: your move will not violate any court commands. However, if an informal agreement or parenting plan between the two parties requires your child to meet regularly with the other parent, the other parent may request the court to issue a court order to prevent you from moving with the child. Court ultimately needs to consider which approach is in the best interest of the child.
What action should I take when the other parent takes the child away and refuses to return it?
If the court order states that the child will live with you or that you can stay with the child on a regular basis while the child is taken away by the other party and never comes back, in this case you may apply for a rescue order from the court. This order allows the police (including state and federal police) to help you find and bring your child back.
If you do not have a court order to let your child live with you or get together regularly, you can apply to court for this order, and you can also apply for a rescue order from court. These two applications can be carried out at the same time.
In some emergencies, court can sign these orders in the absence of the other parent. If you are worried that your child may be taken out of Australia, you should put the child's name on the airport surveillance list. You should apply to court to include the child's name on the monitoring list and submit a copy of the application and related court orders to the federal police.
How to calculate child support?
Child support helps to provide for the cost of raising a child. There are a variety of options for child maintenance arrangements in order to meet the requirements of both parents. Before accepting an application for child support, the Social Welfare Department must be convinced that both parents (and any non-paternal caregivers) are eligible to participate in the child maintenance assessment.
There is information on Humanservices.gov.au/separatedparents to explain what options you have and how child support is made.
The child support formula is used to calculate the amount of child support you need to pay or receive. Each family is unique, so the child support formula takes into account many different family situations. It will take into account the cost of raising the child, the income of both parents, the amount of money needed by both parents to maintain their own livelihood and the percentage of care provided to the child by both parents. You can use the online estimation tool to estimate your child support and the percentage of care provided.
What is the relationship between child support and family assistance provided by the Social Welfare Department?
Child support and family assistance are closely linked. If you receive Family Tax Benefit, and you or your partner receive or pay child support, when calculating the Family Tax available to you
When Benefit, the Social Welfare Department will consider this part of child support.
If the amount of child support received or paid by you or your partner changes, the Family Tax Benefit you can get may also be change. It is important to know that even if you privately arrange your child support or have a child maintenance agreement with another parent.
What are the options for the payment of child support?
Private payment of child support (Private Collect): Private Collect means that when the Social Welfare Department tells you how much you need to pay, you transfer child support on your own. If you are a recipient of child support payments, you can select this option whenever you submit a child support application and child support case is still active. If the Private Collect does not work, the recipient parent may request the Social Welfare Department to receive child support for him / her.
The (Child Support Collect): Child Support Collect arrangement means that when the Social Welfare Department calculates the amount of child support, it receives it from the payer, and then transfers the child maintenance to the recipient.
If you are a payer, you may choose to pay child support weekly, fortnightly or monthly to the Social Welfare Department.
What are the consequences of overdue child support payments?
If you are a payer and you are overdue for child support, you need to contact the Social Welfare Department, which will consider your situation and work with you on a viable payment arrangement. If the Social Welfare Department is unable to agree with you on payment arrangements, the Social Welfare Department will make an active effort to recover overdue child support payments for the benefit of your child.
If child support is not paid in full and on time, you may be fined. In some cases a fine may be waived.
Author's introduction: Lin Huiming
Bachelor of Law in China (National Scholarship), Master of International Business Law, UK (Hon. academic degree), Australia, Dr. law, Australia)
Lawer Australia lawe
Queensland Supreme Court Practitioners lawe
Federal Court of Australia Registration lawe
Law Practitioner, Shanghai Haoxin lawer firm, Shanghai, China
China law Professional qualification Certificate
He has been involved in the fields of property law, immigration law and international commercial law. In the last ten years, China, Britain and Australia have studied law work experience, adhered to the promotion of the Chinese community public welfare legal aid and law column, and focused on cross-border law business and corporate legal consultation in the Asia-Pacific region.
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