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WA Divorce Law & Child Support

Discussion in 'Family Law Forum' started by prokaryote, 17 June 2015.

  1. prokaryote

    prokaryote Active Member

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    Hi,

    A friend of mine is currently going through a divorce and has hit a bit of a stress roadblock and can't bring herself to thinking about this situation lately, I promised I would try and seek out some answers for her somehow. So here we go.

    She has been separated from her ex husband for a few years now but only just stopped living under the same roof. She is able to prove that they have been separated while they were still living together. They have since sold and she has moved into a rental with their 4yr old daughter.

    Unfortunately he has become more and more abusive (verbally) to her and their daughter as time has gone on. It is now at the point where she doesn't want her child to have to see him at all (as she feels he is unfit to parent) but is afraid that he will make life extremely hard for her if she tries to enforce that. She is currently relying on him for financial reasons as she only works part time and he had always earned a substantial amount more. She also fears that he will refuse to sign any divorce papers just to spite her and he has said he will take her to court so he can take everything.

    What would the process of finalising the divorce if he refuses to participate in the divorce? Would she be entitled to any sort of child support from him if she denies him access to their child? Considering she is struggling financially and more than likely unable to attend court, what are the chances of him being able to take everything? Eg: The profits from a house that was just sold that is in a joint account.

    I hope this makes sense and thank you for your time.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Well, she would be entitled to child support if she remained the primary carer, but she may find herself without entitlement to see the child if she refuses to facilitate the child continuing to have a relationship with the father. In those circumstances, she would be required to pay child support to the father.

    Section 60B of the Family Law Act 1975 holds that only children have rights in family law, and those rights are to know, spend time and communicate with both parents and other people significant to their care on a regular basis, regardless of the status of relationship between their parents.

    It's the court's duty to uphold the child's rights, as given above, insofar as the child's best interests can be met, and it's quite often the case that a parent who withholds the child's time with the other parent is seen to be violating those rights. Just the same as in any other court, a person who violates the rights of another rarely emerges the victor.

    Summarily, a parent who refuses to facilitate a child's relationship with the other parent is seen to be refusing to acknowledge the child's attachment to them, thus causing the child emotional and psychological harm. Kids love their parents, even when the parents don't love each other, and it's important to recognise that as fact because not doing so will harm the child in one way or another.

    Based on the facts you've provided, as well, I think the father would have convincing grounds to pursue parenting orders through the court if the mother decided to withhold the child, so going down that path would be a terrible waste of time and money. Better to keep the $20,000 in solicitor fees for a trip to Disney World, no?

    What I would suggest doing is telling your friend to enrol in a post-separation parenting course with Relationships Australia, which teaches separated parents how to communicate and co-parent effectively. This is especially useful where there is conflict between the parties. It's a free course and may save a lot of money in court fees, and a lot of stress by improving the situation, rather than by exacerbating it.

    Sorry if this isn't what you want to hear, but I would hate for the mother to risk proceedings and losing residency of the child because of an unrealistic view about what the court's position is in relation to kids, so I hope this at least in some way helps.
     
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  3. AllForHer

    AllForHer Well-Known Member

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    Oh, in relation to property settlement, it can be whatever the parties agree to, but if they're unable to agree, they have 12 months following finalisation of divorce to file for a property settlement. A settlement is decided by the court using four steps:
    1. What's the total value of the asset pool?
    2. What's the financial and non-financial contribution of each party? (A party will not be disadvantaged if they kept house/raised kids while their partner worked)
    3. What are the future needs of each party?
    4. Is the settlement just an equitable?

    It's impossible to predict how much each party would walk away with, but it's a good idea to start at 50/50 and go from there.

    Before any proceedings (regarding the child or the property settlement) can commence, the parties must attempt to reach agreement about their circumstances. For parenting, it may be a parenting plan which states who the children will live with and how often they'll see the other parent, and may include provisions about how the parties communicate, etc. If the parties agree on a parenting plan, it can be made into consent orders through the court to give it legal enforceability. The same applies for an agreement about property settlement.

    A family dispute resolution conference is mediation guided by a neutral third party to help the parties reach agreement. Legal Aid offers this service, as does Relationships Australia and several other community services. If the parties can't reach agreement or fail to make a genuine effort to do so, the parties will be granted a s60i certificate, enabling them to pursue proceedings in court. Property settlement will be determined as above; parenting orders will be determined according to what the court decides is in the best interests of the child, as outlined in section 60CC of the Family Law Act.

    Further, a divorce can be filed without consent of the other party. This is called a sole application. The court only needs to determine that the relationship has broken down irretrievably and this is usually demonstrated by 12 months of separation. As such, the other party's input is not necessary.
     
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  4. prokaryote

    prokaryote Active Member

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    Hi again,

    Thank you for your reply. Sorry if I am being a pain.
    But when you say "A parent who refuses to facilitate a child's relationship with the other parent is seen to be refusing to acknowledge the child's attachment to them, thus causing the child emotional and psychological harm." Her daughter is scared of him, she doesn't sleep after seeing him and refuses to let him pick her up from school ect. She has seen a psychologist recently and they had recommended he spend as little time with her as possible while he is being the way he is, as it is affecting her having him in the picture right now.
    Sorry I probably should have mentioned that the relationship between the father and daughter was causing her to become more distressed.


    Would this change the way a court would handle the situation at all? In terms of the child's best interests.

    It is also highly unlikely that the father would participate in a post-separation course.
    If he was to refuse to go through the course would that have any sort of bearing on the whole situation?

    Also, if she were to opt not for full custody but allow him to have supervised visits would this mean she would still be entitled to child support?

    Thank you
     
  5. AllForHer

    AllForHer Well-Known Member

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    Saying that "the relationship between the father and daughter was causing her to become more distressed" is only a matter of opinion, not fact. Unless the psychologist is a child expert who spoke to both parents and had all of the information of both parties in order to make an objective finding, there's no proof to show the child behaving in a particular way is solely because of the father.

    The court would not be as quick to make that conclusion. It would be more inclined to look at the mother as well, to ask if her anxieties about the child spending time with the father are being projected on to the child. Studies have consistently shown that children of such a young age are simply incapable of having an opinion of their own, are easily influenced and will mirror their parents' feelings and behaviours in an effort to please them. If mum hates dad, then the child will pretend to hate dad, too, because that seems to be the way things are done at mum's house. At dad's house, though, they might have a perfectly happy, healthy relationship.

    Really, I can't really see any convincing grounds for arguing it's not in the child's best interests to have any meaningful relationship with the father. Sure, it would be unfortunate if the father didn't attend a post-separation parenting course, but it takes extenuating circumstances for the court to order that a child be subject to a life without one of their parents. Extenuating circumstances are proven patterns of violence, neglect or abuse that hold up under hard cross-examination, and even then, the court will go to extraordinary lengths to address the problem with the parent long before it will remove the parent from the child's life.

    Of course, I don't encourage any parents to fabricate or even exaggerate circumstances that indicate they fear for the child's safety to try and advance their position in court. I can't tell you how many times I have seen a case crumble because even the littlest white lie has fallen apart under cross-examination, and unfortunately, the court makes its judgement based on the evidence of the more reliable witness. I only tell you this because I'm a bit worried you might be looking for circumstances that will have a bearing on the situation, and I just don't want you to fall into that trap, that's all.

    The term 'full custody' isn't used in Australia anymore, it was replaced not long ago by 'sole parental responsibility'. However, in Australia, there's also a legal presumption that the parents have equal parental responsibility, which means they both have equal responsibility in making long-term decisions about the child's care, welfare and development. This presumption is the automatic state of affairs, and it cannot be removed unless by order of the court. It's extremely difficult to attain sole parental responsibility these days.

    What this means, as well, is that the mother is not in a position of 'allowing' the child to have a relationship with the father, or 'allowing' supervised contact. At law, the child's right to have a relationship with both parents is not one either parent has any right to overrule. Yes, she would still get child support where supervised contact was ordered, but again, it's running the risk of losing residency of the child all together if the allegations made in order to have supervised contact ordered are found to be false or exaggerated claims.

    Again, sorry if it's not what you want to hear. It really is better to be realistic about things, and that's what I try to do so that I can maybe save some parents a few thousand dollars on legal fees by deterring them from pursuing a case that has minimal chance of success. Hopefully, I've helped make sense of how actions can influence proceedings for parenting order, though. :)
     
  6. Nickyba

    Nickyba Member

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    Hello
    I am in a similar situation as above, my children are 12 and 10 their father sees them fortnightly does not pay child support for them but still voices his opinions while in my care, we have a parenting plan in place which he does not follow.
    Recently he has stated he does not want the children if they're ill, he doesn't want to catch it, he calls and cancels at a moments notice and expects me to give up my day of work, even though he does not work, it's starting to be disruptive to the children's routine and they are happy not to see him.
    What can I do to stop this disruption and make him take the children when he's supposed to he won't go back and get a revised parenting plan with me and he now has a new partner. Advice?
     
  7. AllForHer

    AllForHer Well-Known Member

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    Nothing, even the law, can compel a non-residential parent to spend time with their children, but in not having formal parenting orders sealed by the court, you also have a bit more flexibility in terms of how care arrangements are executed.

    With that said, this also limits what guidance I can give on your situation. I would be chasing up child support if I were you, if not only to cover the cost of arranging alternative care arrangements when he cancels, but the kids are also getting to an age where the court would consider making orders that they spend time with the father in accordance with their wishes, or as agreed by the parties.

    As such, it might be better for you and the kids to start following a similar arrangement, even if the father rejects the idea. At the very least, it might compel the father to pursue mediation, which is of course what you're probably aiming for anyway.

    I hope this helps in some way.
     

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