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What is It?

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A written agreement between parents or carers about child support payments. Both parents must sign it and it can only be made if you’ve had legal advice. To make a binding child support agreement, both parties need to agree on an amount for your child support payments. The amount can be more or less than the amount that would be payable under a child support assessment. To receive child support under a binding agreement a parent must have at least 35% care of a child.

Limited child Support Agreement

Both parents must seek independent legal advice and each get a legal certificate. If you don’t, your binding agreement will not be valid. However, you can still make a limited child support agreement with the other parent and it may be considered by the agency to be approved.

Changes

Child’s care changes if new circumstances affect your agreement. If the agreement doesn’t support changes, you may be able to end the agreement. .

Lump sum payments

You must have a child support assessment before a binding agreement for a lump sum payment. The amount must be equal to or greater than the annual child support rate payable in your child support assessment.

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Jaswinder (Jas) Sekhon

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Jaswinder has a fresh revitalizing approach to law which has led to outstanding results. Admitted to practice as a solicitor/barrister in four countries, with over 30 years’ experience in wealth, finance, tax, trusts, funds, and structures. Jas equally enjoys strategic work for clients in disputes, emerging, criminal or family law.

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5 Legal Steps

The Process for Contested Orders When Parent cannot Agree

  1. Step one – wrote to the other side We write to the other side to invite them to resolve the dispute and we outline what our arguments are and what we are seeking.
  2. Step two – attend dispute resolution We selected dispute resolution service and we attend that service – this will cost both parties legal fees and the fees for the dispute resolution service.
  3. Step three – written notice of issues and future intentions If we reach agreement then we file for consent orders in the agreement is formalised. If dispute resolution is not attended or fails to reach a solution, and at this stage we write again of the notice of the intention to start a proceeding. We again list issues in dispute and the genuine offer to resolve this issue is and wait at least 14 days from the date of the letter.
  4. Step four – reply to the notice of intention If you receive such a notice of intention then we must reply on your behalf within this time period
  5. Step five – lodge an application in court Finally, after reasonable attempts to resolve the above by correspondence, we may file proceedings via an application in the Court.

The Most Important Factor - What Is In A Child's Best Interests?

The Act sets out the primary, or most important, considerations, for the court when it is deciding what is in a child’s best interests. The Act also sets out some other considerations.
Some of these considerations are:

  • The benefit to the child of having a meaningful relationship with both of the child’s parents;
  • The need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence;
  • The need to protect the child from physical or psychological harm, including abuse, neglect or family violence, will outweigh other considerations;
  • Views expressed by the child, considering the child’s maturity and level of understanding;
  • The kind of relationship the child has with each parent and with other important people, for example grandparents or siblings;
  • How much each parent has participated in the child’s life, including how much they have spent time with and communicated with the child;
  • Whether each parent has met their obligation to maintain the child, for example paying child support;
  • The effect on the child of any change in arrangements, including whether siblings will be separated from one another;
  • The practical difficulty and expense of a child spending time with and communicating with a parent;
  • The maturity, sex, lifestyle and culture and traditions of the child and the child’s parents, including, for Aboriginal or Torres Strait Islander children, the right to enjoy their culture;
  • The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
  • Any family violence involving the child or a member of the child’s family and, if a family violence order has been made, and what that order says; and
    The willingness and ability of each parent to encourage a close and continuing relationship with the other parent.

What Is 'Custody'?

The term ‘custody’ is considered outdated and replaced with the term ‘parental responsibility’, which refers to all powers in relation to making long-term decisions as to a child’s upbringing, religion and education; including making any decisions about major medical procedures and treatments and applying for a passport or visa for the children.

What Is Parental Responsibility?

Parental responsibility means the responsibility parents have for their children, and the important decisions parents make about their children. Each parent shares parental responsibility for a child unless the court makes an order saying otherwise.

When making parenting orders, the court will :

  • Presume that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless a parent or someone who lives with the parent has engaged in child abuse or family violence; and
  • Look at other evidence and decide if equal shared parental responsibility is not in a child’s best interests.

What Is Equal Shared Parental Responsibility?

Equal shared parental responsibility means that both parents share the responsibility to make major decisions about their child. This means parents need to talk to each other about major long-term issues affecting their child, including the child’s education, religion, health, the child’s name and any changes to the child’s living arrangements that would make it much more difficult for the child to spend time with the other parent.

This doesn’t generally include day-to-day decisions about things like what the child wears or eats.

If the court makes an order for both parents to have equal shared parental responsibility, it must also consider whether it is practical and, in the child’s best interests for the child to spend equal time or substantial and significant time with each parent.

What Are 'Live With' And 'Spend Time With' Arrangements?

The parent with whom the child is living has the sole decision-making power for matters that are not about the children’s long-term welfare unless there is an agreement otherwise.

Equal shared parental responsibility does not mean that the child should live with both parents or spend time with both parents equally. The issues of where children live and who they spend time with are usually referred to as ‘live with’ or ‘spend time with’ arrangements.

There is no presumption that parents should have equal time with the children, however a court must consider whether equal time is appropriate if parenting orders are made for equal shared parental responsibility. If equal time is not appropriate, then a court must consider ‘substantial and significant time’ which is legislated to mean weekend time and week time.

A child has the right to have a meaningful relationship with both parents which includes a right to spend time with both parents when this is reasonably practicable in the circumstances.

It must be reasonably practicable and if one parent lives a significant distance away from the child’s school it would not be reasonable for the child to spend overnight time with that parent on school nights.

What Is Substantial And Significant Time?

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent, and each parent having meaningful involvement in the child’s daily routine. It includes children spending significant events and special occasions with each parent.

In deciding whether it is reasonably practicable for a child to spend equal time or substantial and significant time with a parent, the court must consider:

  • How far apart the parents live;
  • Whether the parents can communicate and cooperate with each other and resolve difficulties, now and in the future; and
  • The effect on the child of any proposed arrangements.

Some of the above material above is “© State of New South Wales through Legal Aid NSW”

Applying To The Court - Mediation Certificate

Before applying to a Court for a judicial determination, parties must attend “Family Dispute Resolution” and obtain a certificate to show that they have done so unless there is a specific reason why dispute resolution is inappropriate in the circumstances.

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