Parenting arrangements and child support in Western Australia

Parental responsibility, and what it is not

Parental responsibility describes the duties and powers parents have in relation to their children - in practice, who makes the major long-term decisions about schooling, health and the like. It is not the same as where a child lives or how time is divided, and it does not carry an automatic right to an equal split of either. The child's best interests are the paramount consideration, assessed on the facts of the particular family rather than against a default formula.

Informal agreement, parenting plan, or consent orders

There are three ways to record what you have agreed, and they are not equivalent.

• An informal agreement - flexible, unrecorded, and unenforceable.
• A parenting plan - written, dated and signed. Practical and adaptable, but it cannot be enforced by the Court, although it can be relevant evidence later.
• Consent orders - filed with and approved by the Family Court of Western Australia. Once made they carry the same force as orders made after a contested hearing, and a breach can be the subject of a contravention application.

Which court, and which Act, applies to you in WA

Western Australia is the only State that did not refer its power over the children of never-married parents to the Commonwealth. The practical result is that parenting matters for the children of married or divorcing parents are decided under the Family Law Act 1975 (Cth), while parenting matters for the children of parents who were never married are decided under the Family Court Act 1997 (WA). Either way the matter is heard in the Family Court of Western Australia. The Federal Circuit and Family Court of Australia, which hears these matters everywhere else, does not have that role in this State - a point that regularly confuses people who have read national guidance written for somewhere else.

Family dispute resolution and the certificate

Before applying for parenting orders you will generally need a certificate from an accredited family dispute resolution practitioner. Which certificate depends on the same distinction as above: a section 60I certificate where the parents were married, and a section 66H certificate where they were not. The Family Court of Western Australia sets out the situations where a certificate is not required.

• Where you are applying for an exemption.
• Where you seek interim or procedural orders only, and not at the same time as an initiating application.
• Where you are applying for consent orders.
• Where the application concerns the Hague Abduction Convention.
• Where you are applying for child support.
• Where you are amending an existing application about the same child.

How child support is normally assessed

Child support is federal law and applies in Western Australia in the same way as everywhere else. Services Australia applies a legislated formula that takes each parent's adjusted taxable income, subtracts a self-support amount and any relevant dependant allowance, combines what is left, applies a costs-of-children calculation based on the parents' combined income and the number and ages of the children, and then compares each parent's share of the combined income against their share of the care. The dollar figures and thresholds in that formula are indexed and change, so we have deliberately not quoted them here - use the Services Australia estimator for current numbers.

Limited child support agreements

A limited agreement can only be made where an administrative assessment is already in force, and the annual rate agreed must be at least the rate that assessment would produce. Independent legal advice is not a legal requirement. The trade-off is at the other end: a limited agreement generally cannot simply be varied, so a change means terminating it and making a new one, and either parent can end it unilaterally by notice once it is three years old, or earlier if the assessment that would otherwise apply changes by more than 15 per cent. That built-in exit is the defining feature - a limited agreement is a medium-term arrangement, not a permanent settlement.

Binding child support agreements

A binding agreement does not need an existing assessment and the parents can agree any amount, including an amount that departs from what an assessment would produce. The price of that freedom is formality: each parent must receive independent legal advice from a legal practitioner before signing, about the effect of the agreement and its advantages and disadvantages, and a signed certificate from each adviser must be included. Ending one requires the same step again - a termination agreement also needs independent advice on both sides - or a fresh binding agreement, or a court order setting it aside. A binding agreement is not something parents can quietly rework between themselves, which is precisely the point of it.

Choosing between them

The choice is really about how much certainty each parent wants and what they are prepared to give up for it. A binding agreement buys durability and the freedom to agree a figure that suits the family's actual circumstances, at the cost of formality and of being difficult to escape if circumstances change. A limited agreement is easier to make and easier to leave, but it cannot go below the assessed rate and either parent can walk away from it after three years. Legal Care Australia prepares both, and provides the independent advice a binding agreement requires.

Process

1. 1

   We identify whether you were married to the other parent, because that determines the Act and the certificate that apply.

2. 2

   You attempt family dispute resolution with an accredited practitioner, unless one of the listed exceptions applies, and obtain the relevant certificate.

3. 3

   We advise whether an informal arrangement, a parenting plan or consent orders best fits your circumstances, and prepare the documents.

4. 4

   For child support, we advise on whether an administrative assessment, a limited agreement or a binding agreement suits your situation.

5. 5

   Where a binding agreement is used, each parent obtains independent legal advice and the certificates are prepared before signing.

6. 6

   Consent orders are filed with the Family Court of Western Australia, and any child support agreement is lodged with Services Australia.

What to prepare

• Birth certificates for the children.
• Marriage certificate, or evidence of the nature and length of the relationship.
• Any existing parenting plan, court orders or family violence restraining orders.
• The family dispute resolution certificate, if you have one.
• Income information for both parents - tax returns and payslips.
• A proposed care schedule or draft parenting arrangements.
• The proposed terms of any child support agreement.
• Identification for both parents.

Risks, deadlines and common mistakes

• Assuming an automatic right to equal time or to equal shared parental responsibility. Neither is presumed.
• Relying on national guidance and filing in the Federal Circuit and Family Court. WA parenting matters go to the Family Court of Western Australia.
• Treating a parenting plan as enforceable. It is not.
• Making a limited agreement below the assessed rate, or a binding agreement without the required advice certificates. Either can leave the agreement ineffective.
• Signing a binding agreement without appreciating how difficult it is to exit if circumstances change.