Parenting, Property and Child Support

Last updated 30 June 2009

This fact sheet is for people who have been affected by the February 2009 Victorian bushfires. It has information about family law issues such as parenting and property and will explain your legal rights and options. It also has the contact details of organisations that can help you.

You can order a hard copy of this factsheet from Victoria Legal Aid.

Parenting issues

I have not been able to obey a parenting order or parenting plan arrangement because of the bushfires. What should I do?

The law says that if a parent has a reasonable excuse for breaking the arrangements in a parenting order, this is acceptable and not in ‘breach’ (breaking the rules) of the order.

The court cannot enforce a parenting plan. If you have not followed a parenting plan and you have no reasonable excuse, the other parent may apply to the court for a parenting order. The court may decide that you should have parenting orders in place, and not a parenting plan, to stop this happening in future. You would need to show the court how and why the bushfires stopped you from obeying the parenting plan or order.

Always try to help the children stay in touch with the other parent so their relationship can continue until the children are able to see the other parent in person.

The children seem really affected by the bushfires and do not want to spend as much time with the other parent. This breaks the arrangements set out in a parenting order or parenting plan. What should I do?

When children suffer trauma, they often regress (go backwards in their development). Often the children do not wish to be apart from the parent they spend most of their time with. Try to talk with the other parent about how the children are feeling, perhaps with the help of a child and family counsellor. This will help you both make decisions based on the needs of the children. Contact a Family Relationship Centre on their Family Relationship Advice Line 1800 050 321 to get the number of a counsellor near you.

If the other parent will not agree, you may need to change your parenting order or, if you have a parenting plan, apply for an order. You will need to show the court why the order needs to have the arrangements you would like. If you do not obey the arrangements set out in the order or plan in the meantime, you may need to defend your decision to the court. You can get legal advice from Bushfire Legal Help on 1800 113 432 and Victoria Legal Aid on 9269 0120 or 1800 677 402 (country callers) or help from the Family Law Courts.

I want to move my children from the bushfire affected areas? Do I need the other parent’s permission?

If you and the other parent have equal shared parental responsibility for your children, you should first try talking about this with them. Try to come to agreement if possible.

If there are court orders or an agreement that says the children are to live with you and spend time with the other parent, you must talk about this with the other parent first.

If you have court orders, you would need to get them changed (‘varied’) to show the new arrangements. You can formalise your new agreement either by filing a ‘consent’ order with the court or by making a parenting plan (if your court orders were made on or after 1 July 2006). In most cases, you will need to try family dispute resolution first before you can apply to the court.

If you want to move to another area and this would make it difficult for the children to see the other parent, get legal advice. Talk about this with the other parent before moving the children away. You should think about the children’s best interests at all times. If there is family violence or child abuse, get legal advice and other help.

My situation has changed because of the bushfires. I want to change my parenting order or parenting plan because of this. How do I do this?’

First, make sure your plans are in the best interests of the children. This is the law’s main consideration. Try to then talk about the changes and come to an agreement with the other parent. If you cannot come to an agreement, you need to talk with a family dispute resolution practitioner. Contact a Family Relationship Centre on the Family Relationship Advice Line on 1800 050 321 or a Family Mediation Centre on 9556 5333 to find a practitioner near you.

You can change a parenting plan by making a new one which is dated and signed by both parents. If you have a parenting order that was made on or after 1 July 2006 and both parents agree on the changes, you can change the order by making a parenting plan.

If the other parent does not agree to the changes and you want to change or make a parenting order, you must first try family dispute resolution. Sometimes you do not have to do this, for example, if there is family violence or in situations of urgency. Get legal advice if this applies to you.

My relatives or friends have died in the bushfires and I would like to have their children live with me. Is this possible?

It is understandable that you would like to care for the children at this time.

The best interests of the child is the court’s main consideration when considering where a child should live.

If the children have lost their parents in the bushfires, the court will look at:

• whether there are relatives who know the children and could take care of them
• the relationship that exists or has existed between you and the children
• whether the children living with you would take them away from friends and family
• whether you would help the children stay in touch with friends and relatives
• the ages of the children and if they are old enough for the court to listen to their views.

Think about how these issues might affect the children. If you decide to go ahead, get legal advice before taking any action to have the children live with you.

Property issues

I am separated from my partner. I have paid most or all of the mortgage but the property is still in both names. If I get insurance money (or the house is re-built) how much is my former partner allowed to get?

If you have not yet done a family law property settlement, the insurance money (or the new house) is still ‘marital/relationship property’, just as the old house was. This means your former partner may be entitled to part of it.

The portion your former partner is entitled to depends on many things including the contributions you both made to the marriage or relationship. This includes financial contributions and non-financial contributions such as child minding, housekeeping or the upkeep of property. Your entitlements also include the needs each of you has for the future. It is very important that you get legal advice about this.

My house is being used as security against my former partner’s property. Do I have to pay the debt on their property if their house burnt down or my house burnt down?

The law says the buildings on a property are only part of the property. The land itself has value of its own and it is your former partner’s land for which your house is security.

Therefore, if your former partner still owes money on their land, you will still have to pay the debt, even if your own land (or theirs) is now worth less because of the bushfires. Generally, your former partner’s mortgagee will have a mortgage over your property. Only the value of that mortgage would change if either your, or your former partner’s, house burnt down.

You should get more legal advice about this.

My income has changed due to loss of business or employment because of the bushfires. Can I change my property settlement to take this into account?

A property settlement may be changed if it would be impractical for the order (or part of the order) to be carried out due to changes in your circumstances since the settlement was first made. However, this will depend on many things, including whether you get any compensation or insurance for the loss of your income.

Where to get help

Victoria Legal Aid

Tel: 1800 113 432, Monday to Friday, 8.45 am to 5.15 pm, for free bushfire legal information and referrals, www.legalaid.vic.gov.au/

Family Law Courts

Tel: 1300 352 000 (National Enquiry Centre), Monday to Friday, 8.30 am to 5 pm, www.familycourt.gov.au (Search for specific information under ‘Victorian bushfires 2009’)

Family Relationship Centres

Tel: 1800 050 321 (Family Relationship Advice Line), Monday to Friday, 8 am to 8 pm, www.familyrelationships.gov.au

Child Support Agency (CSA)

Tel: 13 12 72, Monday to Friday, 8.30 am to 4.45 pm, www.csa.gov.au/Re-establishingIdentity/index.aspx

Women’s Domestic Violence Crisis Service

Tel: 9373 0123 or 1800 015 188 (country callers), seven days, 24 hours, www.wdvcs.org.au

Men’s Referral Service

Tel: 1800 065 973, Monday to Friday, 12 pm to 9 pm, www.mrs.org.au/

Department of Human Services (DHS)

Tel: 1800 050 400 (Victorian Bushfire Case Management Service), Monday to Friday, 8 am to 5 pm and tel: 1800 240 667 (Victorian Bushfire and Storm Information Line), Monday to Friday, 8 am and 6 pm, www.dhs.vic.gov.au/em/bushfire-recovery

Counselling and support

NURSE-ON-CALL Bushfire Health and Counselling Line: 1300 606 024, seven days, 24 hours a day

Beyond Blue: 1300 224 636, seven days, 24 hours a day, www.beyondblue.org.au

Griefline: 9596 7799, open seven days, 12 pm to 3 am, www.griefline.org.au

Parent Line: 132 289, week days 8 am to midnight and weekends 10 am to 10 pm, www.parentline.vic.gov.au

Rural Support Line: 1300 655 969, seven days, 24 hours a day

Interpreters – Translating and Interpreting Service (TIS)

Tel: 131 450, seven days, 24 hours a day

Hearing impairment – National Relay Service

Tel: 133 677 (TTY service) and 1300 555 727 (Speak and listen), seven days, 24 hours a day

Other resources

Bushfire Legal Help Handbook and Bushfire Legal Help fact sheets on Property, Insurance and other topics at www.bushfirelegalhelp.org.au

Victoria Legal Aid’s family law factsheets under ‘legal issues’ on the homepage at www.legalaid.vic.gov.au 

Fitzroy Community Legal Centre’s Law Handbook ‘families and children’ factsheets at www.lawhandbook.org.au/fact_sheets/

Visit Lifeline’s Community Disaster Recovery page to see ‘Helping your children cope with the after effects of bush fire disaster’ factsheet and other information for parents and teachers at www.lifeline.org.au/find_help/community_disaster_recovery