ERINA LEGAL : Negotiation

A GUIDE TO NEGOTIATING IN FAMILY LAW

By Denise Elizabeth King B.A. (Psych) LLB (Grad) Master of Laws (Research)(Honours)

1.Benefits of Principled Negotiating

2. Important Aspects of Principled Negotiations

3. Past Conflicts and Emotions

4. Confidentiality

5. Guidelines for Successful Negotiation

6. Financial Issues

7. Children

8. Children's wishes considered

9. Preparing a Plan of Arrangement for the Children

9. Child Support

The information provided in this article is a guide only. It should not be read as legal advice or substituted for independent legal advice. Laws continue to change and any part of this information may change at any time. Your Family Lawyer can assist you with that information.

1. Benefits of Principled Negotiating
Most people involved in Family Law Court proceedings these days are experiencing the following:

High Costs
Long Delays
Increasing Stress and Conflict
Outcomes that they may not like, or can't sustain

WHO IS TO BLAME? "The only people who benefit are the lawyers" is often heard. In fact most family lawyers don't benefit either. It is a high stress job that is often frustrated by the slow Court processes, with stressed clients asking for immediate results so that they can move on with their lives. Added to this is the growing conflict, anger, revenge of the parties who feel they are in a battle for their survival.

The ONLY way to resolve this is for the parties themselves to STOP FIGHTING - STOP SEEKING REVENGE - THIS IS YOUR LIFE THAT YOU ARE WASTING IF YOU CONTINUE WITH THIS APPROACH.

What needs to be applied is REALISTIC THINKING.

PROPERTY
Property needs to be divided realistically. In the amount of time and money wasted arguing about who gets the most, more money and assets could have been earned by using the time productively.

Don't think this is your last chance, and how much you are losing all that you have worked for. Remember, no matter who was the main financial provider, you both contributed in various ways to achieve what you feel you are losing. If you don't waste time arguing about who contributed most, you can both start making up for what has been lost now.

Property needs to be divided - you don't need to waste more time and money on fighting about it. What you may have to give to the your now former partner/wife/husband could be replaced if you stop arguing and thinking negatively and get on with your life. It may take some time, but the longer you leave to get started the longer it will take. Many people have to rebuild their lives after natural disasters, losing businesses, losing their jobs - countless other ways besides dividing property. It is not impossible.

CHILDREN
All of the research on how children are affected by separation and divorce, shows that:

while children of intact loving families have the best chances in life, children in families where there is constant argument and incompatibility are emotionally and psychologically affected by this;

children whose parents separate amicably and have their children's best interest in mind adjust;

children whose parents continue to argue, seek revenge, have no involvement in their children's lives, or stop the other parent from having any involvement in the children's lives, suffer emotionally and psychologically well into adulthood.

PHYSICAL AND SEXUAL ABUSE
If there has been child physical or sexual abuse, this is a crime and does require Court adjudication.

If there has been physical abuse of one of the parents, this also is a crime and needs Court adjudication.

IF ALL OTHER CASES ARE NEGOTIATED BY THE SEPARATING COUPLE THEN THE COURT WILL BE ABLE TO PROCESS THE ABUSE CASES IN MUCH BETTER TIME.

The important aspects of Principled Negotiation are:

Each person can put the past behind them and concentrate on the future.

Each person can retain a sense of dignity and a clearer understanding of their future.

The mediation process is designed to eliminate the competitive win/lose atmosphere that prevails when there is litigation at Court.

3. Past Conflicts and Emotions.

When couples separate they are faced with losing things that have been important to them, such as the family home and other possessions acquired during the marriage – even friends and lifestyle. This creates feelings of tension and of being threatened.

When one parent also believes their parental role will be diminished or disregarded in some way, these feelings are intensified. These fears and expectations make it difficult to compromise and even normally open and honest people often resort to less than honest tactics or games to try to retrieve their situation.

Mediators are interested in reaching a settlement. They understand that the couples are going through a difficult time and take care to diminish the painful aspects of this.

The negotiations are designed to help the couple place the past in the past and to move on, however daunting the prospect may be.

In some cases this may be difficult or even impossible, however even when some issue may still need to be negotiated through lawyers at the end of the mediation process, these negotiations should be simplified and better understood as a result of the mediation that has taken place.

Mediation does not attempt to resolve conflicts of the past, or bring the couple back together, although couples may begin to understand past problems in a different light.

Mediation sets out to help couples accept that the marriage is over and to make constructive plans for the future.

Mediation is a process of negotiating, to allow couples to develop a new life from a number of options open to them.

If the couple wish to resolve past conflicts or emotions, counselling is advised.

Mediated Agreements are only legally binding if there has been full disclosure and honesty during the mediation.

4. Lawyers and Mediation

Although couples will negotiate directly with each other during the mediation process, they should also consult a lawyer so that they are aware of the legal implications of their choices.

If both parties agree, the respective lawyers can be present at any part of the mediation process for property issues, or for the whole mediation. If the lawyers are able to attend the mediation, they will be available to provide advice to their clients immediately and assist them with the negotiations as well as write any agreement reached in appropriate legal terms and provide a solicitor’s certificate of independent legal advice to make the agreement legally binding.

Lawyers

explain rights and obligations;

reassure or advise their clients on matters causing concern or doubt;

tell their clients what legal action they can take;

represent their client if an agreement is reached during mediation, or negotiate on their behalf during or outside mediation, and if necessary in represent the client in Court proceedings;

prepare the legal documents based on the written and signed agreement reached in mediation;

provide their Solicitor’s Certificate of Independent Legal Advice, once the Agreement is signed by all relevant parties and the solicitors and the Agreement then becomes legally binding.

Although it is not necessary, for further protection the Agreement can also be filed at Court for orders to be made by consent. The Lawyers can complete and file the consent orders. Neither the parties nor the lawyers are required to attend the Court unless there has also been a prior application made to the Court, in which case, the lawyer should attend to inform the Court that the Agreement has been reached as a result of the mediation.

5. The Mediator’s Role

The role of the Mediator is to facilitate and assist in clarifying and settling the various issues by direct discussion.

Mediators

are committed to the process and obtaining agreement, not to any one person;

are neutral and balanced between the disputants;

control the process while yielding control of the content to the clients;

do not accept any one person’s definition of the problem;

help clients develop options to solve their problem; and

do not make judgments.

The Mediator’s commitment is to a settlement that:

everyone can live with;

considers the basic needs of the parties as much as possible;

where child(ren) are involved, is in the best interests of the child(ren).

6. Confidentiality

With the exception of the final Agreement, whatever is
discussed during the Mediation process is completely
confidential and in most cases is not used in a Court of Law
unless agreed by all parties.

If there is violence, or one person has been injured by their
partner, or if there is fear for the safety of that person or the
children, mediators are required to report the matter.

Mediation may not be suitable in such cases and people are
advised to see a solicitor.

7. The Mediation Process

While there is a general process that is followed to reach a settlement, each situation has different circumstances, and the process can be varied to meet those circumstances.

Sessions normally last about three hours, but this varies with circumstances and they can take up to a full day, or they may involve more than one day over a period of time.

When attending Mediation, couples will initially be given information about the mediation process and how it works.

With the mediator, they will consider how mediation can help in their particular situation.

Short and long term goals will be defined.

Most people will have given considerable thought and have a number of ideas on what the ultimate settlement should include. They may be anxious that what they want is not going to be possible. They will be able to discuss these ideas before making any final decisions.

The mediator can also help by offering suggestions or possible options; however

it is up to the parties to choose the options they believe will work best for them.

8. Negotiations in Mediation

Preparation

Preparation is the key to successful negotiations. That is why so much time should be spent on preparing accurate information about all aspects of the situation from the outset. There are some good ground rules to follow in preparing to negotiate.

Know what you want to achieve and what your legal entitlements are.

It is necessary to be fully aware of the legal position and a solicitor should be consulted to ensure this. This does not mean that a lawyer should necessarily do the negotiating. The couple are in charge of what is needed in the settlement. Once there is a broad idea of what is needed, it is a good idea to think through why it is needed. Separate out each part and develop reasons for it, not merely good arguments to try to win the point.

Review the other’s position.

Try to review the other person’s case.

What is the response likely to be to your proposals

What arguments are likely to be advanced to counter your proposals?

What things are likely to be put forward to support these claims?

What sort of suggestions will make the other person less locked into their own ideas.

Identify the constraints.

Identify external constraints that must be recognised and factored in. For example:

You cannot divide more than is totally available.

You cannot claim that you must have $15,000 and allot $10,000 to your former spouse for the sale of a speed boat, if the total likely to be received is only $20,000.

If there is only one car, and one income producer, and the only way they can get to work is by car, then there is a constraint on who gets the car.

If these points are thought through ahead of time, they will not come as a surprise in the actual negotiations and the other party may respond in a more reasonable fashion.

List your points.

List the points to be raised in each session; define goals into an order of priority to help decide what to emphasise in the session.

During preparations for the negotiations, the task will often seem formidable. There will be worry about not doing it correctly and many aspects of it will rekindle anger as it touches on some of the reasons for the failure of the marriage.

Define the issues neutrally without including a solution and without blame.

List your needs and worries about each issue.

List the other’s needs and worries around each issue.

What are the common goals, values and areas of agreement?

During Mediation

Agree on the information/data required.

Brainstorm all possible solutions/ideas for each issue

List several proposals which take into account the above.

Make decisions.

Plan the action required including legal implications.

Form an agreement which can then be made legally binding by a solicitor.

How to implement your settlement

When a settlement has been reached, the mediator or the lawyers will prepare the Agreement accepted by both parties in mediation.

Each of the parties and the mediator should sign the written Agreement at the time it is written, so that there are no arguments about what was agreed to later.

If the solicitors have not been included in the mediation and prepared the Agreement, each person then takes the Agreement, written by the mediator and signed by each party, to their respective solicitors, one of whom will prepare the Agreement reached in a legal document which will become legally binding once signed by the parties and two independent solicitors’ certificates are also signed by the solicitors and attached.

Sometimes a lawyer will suggest minor or major changes. These may need to be brought back for further mediation or may be negotiated through the solicitors.

In some cases, there may still be some issues that have to be determined at Court.

9. Guidelines for Successful Negotiation in Mediation.

The mediator will start the discussion from areas of common agreement, rather than from an obviously controversial area.

Once a basis of agreement has been secured and can be built on, subsequent favourable adjustments are more easily reached on dispute issues. As agreements are reached, the mediator will make a note of them and put that issue aside. That does not mean the issue cannot be discussed further later, as nothing is finalised until the full agreement is signed.

During the talks the focus is on reaching the settlement that both can live with. The mediator will always be looking for the ‘yes’ and trying to avoid reaching a premature ‘no’. However, each person has the right to say ‘no’ to demands that are not totally unacceptable.

No one should commit to anything without being ready to do so.

No one should be pressured. Time should be taken to consider everything necessary. The mediator should be watching this point and will help the couple avoid reaching a premature decision.

Some key factors for success

In mediation it is necessary to make a real effort to see the other’s point of view without losing sight of you own. At the same time, it is necessary to be well enough prepared to explain the reasonableness or acceptability of your proposals. Remember that it is the other party, not the mediator that must be encouraged to change position. To help with this, each person will be asked to state their proposals and to explain why they are beneficial to the other person as well.

It is often difficult to decide, and the more important the decision, the more difficult it is to reach. Always remember the goal set can be reached in many ways. Be open to alternative plans or routes to the goal. Try also to determine which goals can be exchanged for a goal of the other person. Negotiation is the art of discerning compromise. That means both giving and taking.

The key to the art of negotiating is listening. Listen closely for clues as to when and how concessions are likely.

Do not talk more than necessary. Many an agreement has been lost because one person kept on talking past the point when the other was willing to agree.

Always try to keep the discussion problem- orientated. Do not let it become personality centred or dwelling on what happened in the past. If it does, the mediator should try to reorient the discussion to the issues. If this is not possible, the session will be terminated since this type of focus is detrimental to problem solving.

If a session becomes too difficult, feel free to ask that it end early.

Negotiating is a systematic search for solutions that will lead to a settlement that both can live with. It requires patience and some measure of good will. Even at its most successful, it cannot solve the problems that led to the decision to separate. However, it can help implement this decision with less pain and with a sense of dignity and control over the process. Hopefully, it will also help place the past behind and help focus on the future – a future determined by the couple rather than one defined by a settlement imposed by others.

10. Children’s and Financial Issues in Mediation

In order to make a financial agreement, it is necessary to consider the following:

identifying symbolic and emotional issues;

a plan for both parents to be involved in parenting the children in the future;

what has worked for you in the past;

what hasn’t worked for you in the past;

negotiation of the details of parenting arrangements;

the financial situation after separation;

developing budgets;

negotiating money differences;

making an inventory of assets and liabilities;

beginning to define short and long term goals;

sorting out general areas of agreement;

defining substantive areas of disagreement.

Developing a settlement.

It is necessary to consider what it will cost to live separately. Obviously, total expenses will increase. In developing a budget it may be possible to identify areas of expenditure that can be reduced without significantly changing essential standards of living. Budgeting together shows both parties that it is not a one-sided exercise.

It will be necessary to discuss where each person will live; and

how incomes that have supported one household in the past can be adapted to cover two households.

Possessions and assets will need to be divided and decisions will need to be made about this.

At first, it will be necessary to define the issues related to each of these aspects.

There are usually a number of possible approaches to reaching solutions about these, and before any decisions are made, as many options as possible should be explored. Once options have been generated, joint choices can be made about them. This will involve negotiation. There should be no pressure to rush into agreement until each person really understands and accepts the choices they are making.

It also helps to develop a rational database from which to begin negotiations. It is important to bear in mind that one spouse is not being made accountable to the other.

Budgeting is difficult for most people. Few like it. However, budgeting is financial planning, which enables us to make intelligent decisions and rational choices. The purpose is to establish broad outlines by drawing on experience to project future needs, recognising that future needs will be different from the past. Bank statements can be used as a general guideline to fill in the categories.

The assessment should be in four parts:

1. Income and expenses prior to separation.

2. Income and expenses after separation or budget projections.

3. Assets and financial resources.

4. Liabilities.

Care should be taken to reflect the sort of categorizations that will be easy to maintain, both during the mediation, and when the legal form of the agreement is being prepared.

The Budget deals with anticipated expenses. It will differ for each parent depending on certain variables. For example:

Who will be primarily responsible for any children?

Will one person continue to live in the family home?

Often one person remains in the family home. The other needs to calculate a budget based on rented accommodation or whatever other living arrangement is planned. This may also be necessary for each person.

The prime purpose of completing this budget is to provide information which is sufficiently reliable to enable decisions to be made. The mediator will assist with this and the considerations will be based on broad guidelines, not precise documentation.

Disclosure – In many marriages or de facto relationships, one spouse has assumed responsibility for budgeting and handling the finances. This often makes it difficult for the other person to prepare the information needed for future budgeting. Doing the budgets together provides both with the same facts and enables them to make decisions that are workable. Your financial adviser or accountant may be able to assist you with this.

If these facts are not shared at the mediation to enable decisions on which both parties agree, it may be necessary to give an account of the financial backgrounds in a much less friendly setting such as to a Court.

It is not possible to rely on an Agreement reached in mediation if it has not been based on full disclosure.

One of the important elements of budgeting, if children are involved, is to make a realistic plan to cover their living costs, and this must include paying and receiving monetary support for them.

Assets in Mediation including Work Prospects

All the items owned by the couple can come into the asset category.

The first task is to identify what there is in the way of possessions or financial interests; and

the second task is to understand how they are to be treated in reaching a fair and equitable division between each person.

This is the task of reaching a mediated settlement.

What the Law requires

The decision of how to divide the assets is largely up to the parties, but the principle of balancing who contributed to acquiring or improving the assets, how much non-financial contribution and contribution to the welfare of the family has been made by each person, and what future needs will be, forms part of the law on marital property and will have to be considered when the agreement is made into a binding legal document. The agreement must be legally valid, or it will be of little use.

The process of getting legal endorsement for what has been decided in mediation is simple and inexpensive, given that there has been full disclosure and full agreement. Blatantly unfair agreements where there has not been full disclosure, or there has been fraud or unreasonable coercion applied run the risk of being overturned at a later stage. This is an important reason for each spouse to have the Agreement that has been reached in mediation, scrutinised by their own solicitor before it is transformed into a binding document that each person can rely upon.

Family Businesses

Sometimes, one of the assets might be a family business. In this case, the positions held by each of the couple in that business should be considered.

· Will the division of the business mean that business can no longer function?

· Will one or both of the partners have to find alternate work?

· What are the prospects of one or both in finding other work?

· Will it be necessary for one or both to have further education to enable that person to work?

· If the business is essential to one person, but not so essential for the other, a trade off might be necessary to enable the business to be kept while the other person is given the opportunity to train for and find other work.

Education, Careers and Employment

Another asset that is often not considered is the education and career prospects of each person.

One person might be well established in a career and have good future prospects while the other might need further training or might be relatively limited in their ability to provide for their future and this should be given consideration.

Real value to each person

The essential thing to remember when assets are being divided is the real value to each person, not just the monetary value.

Real value is based on needs and sometimes on sentiment.

Something that has had long term meaning to a person, such as a family heirloom may be more valuable to that person than its monetary value.

The ability to have accommodation in a certain area because of family support or employment may have more value to one person than the other.

While monetary value may have to be considered in relation to the ability to provide alternatives, the real value and real needs should not be disregarded as they may cause future conflict if not addressed at the time of dividing assets.

11. Children

If there are children involved, the interests of the child(ren) should be kept to the forefront. This means that both parents should recognise and accept that children:

have rights, even though sometimes the children’s needs and rights may conflict with those of the parents;

should be treated with respect as a human being;

should have adequate food shelter and clothing;

should have emotional and physical safety, stability and security;

should feel loved by both parent;

should know, and be cared for, by both parents;

should develop independent and meaningful relationships with each parent;

should have frequent and continual contact with both parents.

These principles are reinforced by the United Nations Convention on the Rights of the Child, which Australia has signed and ratified.

Once there is some common understanding of the principles, the details of the parenting plan can be considered. It is important to know what arrangements are to be made for the children, before getting into a discussion of financial issues, so that the children’s needs can be included when deciding about finances.

The reality of one parent leaving the other is almost always a
shock to children.

Parents may not realise the extent to which children can feel
hurt and be bewildered by the separation.

If children know that parents are trying to work out ways for
both parents to continue to see and care for them, even though
they are living apart, they may have some sense that they are
being considered.

12. Children’s wishes considered

It is sometimes helpful to include children in part of the
mediation so that they also have a voice in what
happens to them.

13. Preparing a Mediated Plan for the Children

When there is severe marital disruption or separation, parents tend to think about children in three ways:

(i) as possessions or extensions of themselves – ‘They belong to me’. ‘I’ve put all I have into bringing them up and caring for them; I see in them my hopes for the future’.

(ii) as weapons – ‘He cannot just walk away from them and think they will come running to see him whenever he feels like it’. ‘If I am expected to keep them while she goes off and does what she likes, I’m going to decide who visits her when the children are around, and when I see them’.

(iii) as people in their own right who have fears for the future, and are divided in loyalty between each parent;

(iv) as people who have feelings and needs independent of either parent, but which are very dependent on what both parents do and feel.

Most people have a combination of these feelings, and sorting out which are valid is difficult.

While there are some exceptions, such as where there has been violence or abuse, the reality is that in most cases:

children need both parents; and

both parents need the children;

children need both parents to cooperate in their future as parents.

The mediator should keep this in mind as an agreement that provides for a parenting role for both parents in the best interests of the children is negotiated.

13. Possible Mediated Arrangements for Children

While there may have been considerable conflict leading up to separation and for some time after separation, things usually eventually settle down when the parties are no longer living together. The conflict has usually been between the parents while living together for whatever reason. It does not have to carry on into the future when the parties separate. This should mean that the parents are better able to focus on the children’s needs without those needs becoming entangled in the conflict that was between the parents. Decisions about the children should and can become ones that both parents agree on for the sake of the children.

Children sharing living with each parent: In this arrangement each parent continues to live in close proximity, within the same school district, with the children spending part of each week or month in each household, coming and going according to some convenient arrangement. This shared living arrangement can often prove too difficult. Children need stability. However, if parents plan to live close by, are able to communicate easily, and all parties can tolerate the unstructured nature of this arrangement, then it may be worth considering.

Children living primarily with one parent: The child/ren live with one parent who makes all the day to day decisions, with either an ‘open’ arrangement for time spent with the other parent, or alternatively specific arrangements detailing where and when the other parent and the children are to spend time together. The other parent may have the child/children living with them substantially or less than substantially depending on the practical circumstances and how this will affect the child/ren.

For children under twelve, it is often better to specify times when they spend time with the other parent to lessen any possible conflict, although some flexibility can be written into this by stating “or as agreed between the parties”. Once children are of high school age, they usually want some say and an open arrangement may be more appropriate with times notified to the parents in advance if possible.

Long Term Responsibility for the care, welfare and development of the child/ren is usually with both parents. This includes such decisions as where the child/ren will be educated, sporting or other out of school activities, religious and cultural involvement, and health needs etc. The child’s wishes should also be considered.

The important thing to remember is that the parents will always be parents to their children, even though they decide to no longer live together.

Some people might feel that whatever time they agree to for the other parent to spend time with the child/ren is a concession. This can be very detrimental to both parents and children. In addition to normal time spent with each parent, each parent should consider the other parent’s capacity and responsibility to care for the child/ren as being helpful to themselves as well as beneficial for the child/ren unless there are real issues of abuse or neglect involved.

There are likely to be occasions when the parent with whom the child/ren is/are living needs to attend to something urgently. It might just be a matter of needing a break from the intensity of being a single parent. At these times the child/ren may still need to stay at home to attend school and it may be difficult to arrange to get away. The normal safety-net of another parent in the same household is not there. If the parenting arrangement is too restricted it will be difficult to ask the other parent to care for the children for a few days. This should be taken into consideration when making a parenting plan.

Both parents, while no longer able to share the day to day responsibility of caring for the children, can still share the week to week responsibility. Such an open arrangement means that the children do not become a total burden on the freedom of one parent. This arrangement also extends the idea of parenting as a partnership into the post-marriage relationship. Children have needs and rights and the parents have responsibilities to stay in frequent contact with them.

The following points should be considered in determining parenting arrangements.

The age and sex of the child;

The interaction and interrelationship of each child with both parents, siblings, grandparents and their own circle of friends.

The child’s adjustment to home and school;

The emotional and physical health of all involved;

The child’s own wishes that may not be what the parents are suggesting.

How parents work out the parenting issues will have a significant impact on the emotional life of their children and their future relationship with the parents as they mature.

15. Child Support

Whoever the children live with, both parents will be responsible for each

child’s ongoing support. Each parent will be required to contribute financially and this contribution is known as Child Support.

The obligation to pay child support lasts until a child turns eighteen (18), or becomes self supporting. After that age, it is a matter of negotiation between the young adults themselves and the parents. Some reasons for child support to continue after that age are if the child in question:

is a tertiary student; or

has some ongoing disability.

Child Support Agency

The Child Support Agency can be very useful, whether their formula is used or not.

The formula does not have to be used if the parents can negotiate a satisfactory amount between themselves.

The child support formula gives a useful and consistent basis for working out regular payments. It allows for changes in the CPI and for changes in both parents’ incomes. It can be collected by the Child Support Agency or by another agreed arrangement such as transfer between bank accounts.

If the parents make their own Agreement with the assistance of a mediator or solicitors and two independent solicitors’ certificates are attached to the Agreement, or by using the Child Support Agreement provided by the Child Support Agency, the Agreement can be registered with the Child Support Agency, and if either of the parents wishes, be administered by the Child Support Agency and enforced by them if necessary. However, if both parties agree, it does not have to be registered while both parties are continuing to abide by it.

If there are changes in financial circumstance, such as unemployment, ill health etc, and the Child Support Agency have made the assessment and there is no separate Agreement, the Child Support Agency should be informed so that a new assessment can be made.

If there is a dispute about payment of child support, the Child Support Agency ensures collection does not increase the dispute between the parents. Sums owing can be collected with pay as earned taxation from the payer and is distributed directly to the payee. There are also other means of collection available to the Child Support Agency.

If either parent believes the Child Support Agency has not correctly calculated the child support, there is a right of appeal to the Registrar of the Child Support Agency and if the situation is not resolved, then an appeal can be made to the Family Court of Australia. However, the Family Court will not become involved in child support matters unless there is a good reason and the Child Support Agency have not first been involved.

If an Agreement made between the parents needs to be changed because of changes in circumstances for the children or either parent, then the parents either need to make a new Agreement, or may need to make an application to the Family Courts to overturn the previous Agreement and make appropriate new orders if necessary.

Child Support Formula

The formula in Australia requires that all child support be based on the income of both parents (including fringe benefits) modified by certain factors such as:

if incomes fluctuate from time to time;

if the maximum income of the liable parent is over a certain amount; (this amount varies from time to time);

where income is below the single person’s pension, no child support will be due;

where day to day care is substantially, or equally shared, by the parents, the child support will be adjusted according to the number of nights spent with each parent;

if there are other dependent children or dependent people, such as a new spouse;

if any of the children have disabilities or special needs;

if a parent contributes to the education, dental costs, private health insurance, holiday expenses, major items like musical instruments or sporting equipment, clothes on a continuing basis these contributions can also be taken into consideration and may reduce the amount of child support payable by the parent who pays those costs.

Negotiating a Child Support Agreement or Parenting Plan

If the parents negotiate a Child Support Agreement, they should:

review their current and future needs; and

calculate the support applying the Child Support guidelines.

If there is a deficit following this part of the process, closing that deficit should be a subject of the negotiations.

As all the information is collected together, the possibilities of agreement begin to be seen.

It is not possible to divide what is not there. Living separately costs more than living together and this will soon be seen when making the above calculations. There is likely to be some reduction in the standard of living of both parents once the separation begins. This leads to uncertainties and a sense of insecurity for both. That insecurity is as integral a part of the negotiations as are the emotional issues that led to the decision to end the marriage. An acceptable settlement will usually not be reached until ‘security needs’ are met.

The information prepared enables some of the broad choices to be made. The final agreement will probably consist of both child support and other provisions to meet the costs of bringing up the children.

There are pros and cons as to how payments should be divided. The possibility of changing incomes and rises in cost of living will also have to be considered.

Things such as a new car and furniture replacement can be very expensive. If the washing machine breaks down for good when you are just making ends meets no amount of wishing will get you a new one. So, think about the cars, appliances, furniture and other high cost items that might need replacement in the next two years and include them in the work sheet. Remember that these items are also needed for the children.