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#Parentingmatters

Is your Recovery Order Application warranted?

Recovery orders are usually made for a child to be returned to their primary carer, or the parent with whom a parenting order states the child lives with or the parent who has parental responsibility for the child.

In Renald & Renald (No.2) [2017] FamCAFC 133 (14 July 2017) on appeal, Thackray J set aside a Magistrates’ Court refusal to make a recovery order for the Mother. In this case the Father withheld the children after the Mother agreed to him having the children outside Interim Orders, saying the children did not wish to return to the Mother. Thackray J said that an order requiring the child to be returned “may send a message to the legal profession and their clients that the Court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk”.

On one hand, parents should not be taking matters into their own hands, particularly swaying away Court Orders, including unilaterally withholding a child or removing a child from his/her primary carer where no evidence of risk is present. Aside from the fact that there is a potential breach of the Orders, you may run the risk of a recovery application with an order for costs made against you.

On the other hand, before rushing off and making an application for recovery order, it is always sensible to see if the situation can be resolved between the parents outside Court. It might be worthwhile sending a text to the other parent withholding the child setting a deadline, for example – “you are currently in breach of the Orders, unless you return the child back by 10:00am tomorrow, I will have to take legal actions in Court”. The Court would want to see that you have taken steps to find the child and made several attempts to negotiate with the other parent for the child’s return before taking appropriate action to involve outside authorities such as the Australian Federal Police to find, recover and deliver the child to you. It is also important that you collect as much information as possible about where the child is likely to be to increase your chances of recovering the child. Therefore your Affidavit material is absolutely crucial in this circumstance.

If all else fails and the child is still not returned to you, consider seeking legal advice from our friendly and experienced family lawyers who can assist you promptly through this emotional and difficult situation.

Myths of Child Support

Myth 1: “I don’t see the kids, so I don’t have to pay child support.” Or “If you don’t pay child support, you won’t be able to see the kids.”

The Family Law Act 1975 recognizes that it is in the best interests of a child to have a meaningful relationship with both parents, and to be assured that he/she is supported financially, whether they are biological or adoptive parents, same sex or otherwise. Preventing your child from spending time with the other parent simply because he/she refuses to pay child support would be viewed by the Court as pushing your child/not acting in your child’s best interest.

Myth 2:Child support must always be assessed by the Child Support Agency of the Department of Human Service.”

If the parents are hostile and cannot reach an agreement as child support, Child Support Agency can assess how much child support should be paid. The assessment is formula based and takes into account several factors, including:

  1. Taxable income of each of the parents;
  2. Costs of raising the child or children;
  3. Percentage of time the child or children spend with each parent (usually only nights are taken into consideration);
  4. The age of the child or children;
  5. The cost of living of each of the parents;
  6. Whether there are any other dependant children.

Whilst either parent may request the Child Support Agency to make an assessment of the amount of child support one parent must pay to the other, parents can come to their own agreement about how much child support should be paid. Parents may negotiate a private agreement about child support. They may agree on a sum less than or greater than the amount assessed by the Child Support Agency. The parents may agree on the method of paying significant expenditures such as private school fees, uniforms, sporting fees, etc. They may also agree on a lump sum arrangement. In these circumstances, it is usually advisable for parties to enter into a Child Support Agreement.

There are two different types of Child Support Agreements: Binding Child Support Agreement and Limited Child Support Agreement.

Myth 3: My ex-partner and I can sign a piece of paper stipulating the amount of child support to be paid without getting lawyers involved.”

If parents decide to enter into a Limited Child Support Agreement the parties are not required to get legal advice before entering into a limited agreement however a child support assessment must already be in place and the annual rate payable under the agreement must be equal to or more than the annual rate of child support payable under the child support assessment.

Binding Child Support Agreements on the other hand can be made for any amount that the parents agree to. However, Child Support Agency will not accept a Binding Child Support Agreement without each parent first obtaining independent legal advice. They require legal practitioners to complete a Certificate to verify that parents received legal advice before entering into a binding agreement for Child Support.

You should contact one of our experienced Family Lawyers on 03 9615 7111 or email us out of hours on melbourne@nevettford.com.au for further advice with respect to the issues of child support or about which one of these Agreements is more suitable to your needs.