Disaster Legal Help Victoria

Parenting, property and child support

Children and disasters

When children suffer trauma, such as experiencing a disaster, they often regress (go backwards in their development). As a result, sometimes the children do not wish to be apart from the parent they spend most of their time with. If you think your children have been affected by a disaster, 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 via the Family Relationship Advice LineExternal Link to get the number of a counsellor near you.

If you are separated and the other parent does not agree with a decision you wish to make, you may need to change your parenting order or attend mediation (also known as family dispute resolution). If you have a parenting plan, you may need to apply for an order or attend mediation. In this case, you will need to show the court why the arrangements you are seeking are in your children's best interests. If you do not obey the arrangements set out in the order in the meantime, you may need to defend your decision to the court. See the Where to get help section for more information about this.

If you and the other parent share equal parental responsibility for your children, you must talk to each other and try to come to an agreement about major long-term decisions, including plans to permanently move home. You must make a genuine effort to try and get agreement before you make arrangements. If you cannot agree, a family dispute resolution service may be able to help. If you still cannot come to an agreement, you will need to apply to the court to allow you to move. The court must consider whether it is in the children’s best interests to do so, balanced against your freedom to move. In most cases, you will need to try family dispute resolution before you can apply to the court. A court decision may take many months or even years. There is no guarantee that the children will be allowed to move.

If there are court orders or an agreement that says the children are to live with you and spend time with the other parent, and moving to another area would make it difficult for the children to see the other parent, you:

  • must talk about this with the other parent first
  • will need to get the orders changed to show the new arrangements
  • can formalise your new agreement either by filing a consent order with the court or by making a new parenting plan (if your court orders were made on or after 1 July 2006).

You should think about the children’s best interests at all times. If there is family violence or child abuse, there are support services that may help you with these issues. See the Where to get help section for more information.

Parenting plans

A parenting plan is a signed, written agreement between parents (and other involved parties) that sets out care arrangements for the children. It may affect the amount of child support you receive or pay. You can change your parenting plan at any time, but it must be signed and dated again.

Parenting plans are not legally enforceable. However, the court will expect you to act in accordance with the latest parenting plan, unless you can show that you agreed to the plan because of threats or intimidation. If you had a parenting order that was made on or after 1 July 2006, any parenting plans made after the order will replace 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 to formalise what is in the parenting plan, or to come up with an alternative arrangement.

Parenting orders

A parenting order is an order made by the court. The court takes breaches of parenting orders very seriously. If you breach an order, you can be referred to a parenting program, fined, made to provide compensatory make-up time between the child and parent, or you may even face prison. However, the law says that a parent may have a reasonable excuse for breaking the arrangements in a parenting order.

You may have a reasonable excuse if you believed it was necessary to break the order to protect your health and safety, or the health and safety of your child, or if you did not understand your obligations, and the court is satisfied you should be excused. For example, breaking a parenting order to protect the health of a very sick child (supported by proper medical evidence) could be considered a reasonable excuse. You will no longer have a reasonable excuse to break an order once the immediate danger to health and safety has passed. In the case of a disaster, you would need to show the court how and why the disaster stopped you from obeying the parenting order.

If you are breaking a parenting order for a legitimate reason, 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.

Changing a parenting plan or order

First, make sure your plans are in the best interests of the children – this is the main concern of the law. Try to 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 mediator. Contact the Family Relationship Advice LineExternal Link to find a mediator 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 you want to make a new parenting order and the other parent does not agree to the changes, you must usually try family dispute resolution first. Sometimes you do not have to do this – for example, if there is family violence or an urgent situation. If you think this applies to you, seek legal advice.

COVID-19 and parenting arrangements

Many parents feel worried and confused about what the COVID-19 pandemic means for their children and parenting arrangements. If you are a parent, there are four important things you need to know:

  • If you have court orders, you must continue to follow them unless you have a reasonable excuse not to
  • Everyone must follow laws and public health guidelines
  • In most cases, shared parenting arrangements can continue, even with current restrictions
  • You should try to work through any changes with the other parent and come up with an agreement, if that is safe for you and the children.

For more information on COVID-19 and parenting issues, visit Victoria Legal Aid's websiteExternal Link .

Child support and disasters

If you receive child support but the children are no longer in your care due to a disaster, you should contact both Services Australia (Child Support) on 131 272 and Centrelink on 13 61 50 to let them know of the change in your situation. Both Child Support and Centrelink will use the same care percentage to calculate your child support and family tax benefits (if any).

If you pay child support through Services Australia and a disaster has affected your level of income, you should call 131 272 and tell them your new income so that your child support payments can be recalculated.

If the disaster affects a whole community, Services Australia might suspend or change child support payments for people living in that area until individual parents can be contacted.

In a disaster situation, Services Australia (Centrelink) and Child Support may help families financially support their children through income support or a lump-sum payment. You may receive a text message from the Services Australia to advise you about this.

If you pay child support, some of the options available may include:

  • reducing payments to take into account your lower income and/or financial hardship
  • suspending repayment of debt as long as ongoing child support payments are made
  • suspending pay withholdings from third parties
  • reducing your child support debt to take into account your lower income and/or financial hardship.

If you receive child-support payments, your options may include:

  • increasing child-support payments from the other parent
  • applying on hardship grounds for early release of a child support payment held by Child Support
  • receiving higher payments of family tax benefits or other Centrelink benefits.

If you have a private agreement or court order about your child support payments, you may need to work out a new arrangement with the other parent. Get legal advice if this applies to you.

Property and disasters

If your house is damaged or destroyed by a disaster and it was in the name of both you and your former partner, they may be entitled to part of an insurance payout even if you have separated. If you have not yet done a family law property settlement, the insurance money (or the rebuilt house) is still considered marital/relationship property, just as the old house was. This means your former partner may be entitled to part of it. Their entitlement may be limited by a requirement of a third party (such as a bank) that may have a legal interest in rebuilding the property.

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 both financial contributions and non-financial contributions such as child minding, housekeeping, or the upkeep of property. Your entitlements also include the future needs of both you and your partner. It is very important that you get legal advice about this.

If your house was being used as security against your former partner’s property, and that property was damaged or destroyed by a disaster, you may still be liable for the debt. The law says the buildings on a property are only part of the property. The land itself has value of its own.

If your former partner still owes money on their property, you will still have to pay the debt, subject to any insurance claims, even if your own property (or theirs) is now worth less because of the disaster. Generally, your former partner’s lender (mortgagee) will have a mortgage over your property. You should get legal advice and speak to a financial counsellor about this.

If you have been impacted by a disaster, then you may be able to change your property settlement. A property settlement can be changed if it would be impractical for the order, or part of the order, to be carried out due to any changes in your circumstances since the settlement. This will depend on many things, including whether you have received any compensation or insurance for the loss of your income. You may also be able to claim spousal maintenance. Get legal advice to find out if this applies to you.

Family violence

Family violence is harmful behaviour perpetrated by a person against their family members. It can include being violent, abusive, controlling, threatening, or causing fear. It can be physical, sexual, emotional, verbal, social, or financial. It can also include damaging property or making threats to do so. For children, family violence includes seeing, hearing, or being exposed to the after-effects of this behaviour.

New laws about COVID-19 coronavirus do not stop you leaving your house to:

  • go to a police station to report family violence
  • go to a court for a family violence application or hearing, or to get advice from a duty lawyer
  • get support, accommodation, and refuge if you need to move out of your home.

If you feel unsafe at any time, call the police on 000.

An intervention order is a legally enforceable document that aims to provide a person, their children, and their property with protection. The order has conditions to stop the respondent from using family violence against the protected person.

You do not need to attend court to apply for a family violence intervention order (FVIO). You can lodge an online applicationExternal Link for an FVIO to be heard at all court locations by visiting the Magistrates' Court of Victoria website. If it is not safe for you to complete your application online, call the court to discuss your options. You can download an application form from the Magistrates’ Court websiteExternal Link or apply for an order at your local Magistrates’ Court.

Where to get help

Call Disaster Legal Help Victoria on 1800 113 432 (weekdays 8am to 6pm) for legal information and referrals or contact your closest community legal centreExternal Link to get advice from a local lawyer. For alternative contact options, visit our homepage.

For additional support options and a directory of other services, visit Other organisations that can help.

No To Violence – Men’s Referral Service

Support for men who would like to change their behaviour and for people concerned about other men’s behaviour.

1300 766 491, Monday to Friday 8am to 9pm, Saturday and Sunday 9am to 6pm.

Webchat (when available).

https://ntv.org.au/External Link


Telephone counselling and support service for Victorian parents and carers of children, with experienced social workers, psychologists and family therapists.

132 289, Monday to Sunday, 8am to midnight.

https://www.betterhealth.vic.gov.au/health/serviceprofiles/parentline-serviceExternal Link

Safe Steps

Provides telephone crisis counselling, referrals, information and support for people impacted by family violence.

1800 015 188 (Family violence response line), available 24/7.

Webchat available Monday to Friday, 9am to midnight.

https://www.safesteps.org.au/External Link

Reviewed 24 October 2022