Divorce and parenting are two separate legal issues
A divorce ends the marriage. It does not decide where your children will live, how much time they will spend with each parent, or who will make important decisions about their future.
Parents can make parenting arrangements before, during or after the divorce process.
1. What happens to the children when parents separate?
Most parents make their own arrangements for their children after separation.
These arrangements may cover:
- where the children live;
- how much time they spend with each parent;
- weekends, school holidays and special occasions;
- telephone and video contact;
- school and education;
- medical treatment;
- travel and passports; and
- how major long-term decisions will be made.
2. Is there a rule that children must spend equal time with each parent?
No. There is no automatic 50/50 rule.
The old legal presumption of equal shared parental responsibility was removed in 2024. The Court now focuses directly on the child’s best interests.
That does not mean equal time can never happen. Equal time may work well for some families. For others, a different arrangement may be better.
3. What does the Court consider?
If parents cannot agree and the Court needs to make parenting orders, the child’s best interests are the most important consideration.
The Court can consider matters including:
- the child’s safety;
- any history or risk of family violence, abuse, neglect or other harm;
- the child’s views, depending on their age and circumstances;
- the child’s emotional, developmental, psychological and cultural needs;
- each parent’s ability to meet those needs; and
- the benefit of the child having relationships with parents and other important people, where it is safe.
4. Do parents have to go to Court?
Usually not.
Parents can often make their own agreement, prepare a parenting plan, or ask the Court to make consent orders if they want their agreement turned into Court orders.
If parents cannot agree, they will generally need to make a genuine effort to resolve the dispute through Family Dispute Resolution before applying for parenting orders, unless an exemption applies.
Exemptions can apply in circumstances including family violence, child abuse or urgency.
5. What is a parenting plan?
A parenting plan is a written agreement between parents about the care of their children.
It can deal with:
- where the children live;
- time with each parent;
- holidays and birthdays;
- communication;
- schooling;
- health care; and
- how future decisions will be made.
6. What if we already agree?
If both parents agree, you do not need to start a Court dispute simply because you are getting divorced.
You may continue with an informal arrangement, record the agreement in a parenting plan, or apply for consent orders.
Writing the arrangement down can help both parents understand what has been agreed and reduce future misunderstandings.
7. What if we cannot agree?
If you cannot agree, mediation or Family Dispute Resolution may help.
If the dispute still cannot be resolved, either parent may apply to the Federal Circuit and Family Court of Australia for parenting orders.
Parenting orders can deal with:
- who a child lives with;
- how much time a child spends with each parent or other important people;
- how the child communicates with a parent; and
- responsibility for major long-term decisions.
8. Does getting divorced change existing parenting arrangements?
No, not automatically.
A divorce order does not cancel or replace an existing parenting plan or parenting order.
The divorce application does, however, ask for information about children under 18. The Court wants to understand the arrangements for their care before granting the divorce.
9. What information about the children is included in a divorce application?
The application may ask for information about:
- where the children live;
- how they spend time or communicate with each parent;
- their schooling;
- their health; and
- their financial support.
This does not mean the divorce Court is deciding the parenting arrangements. The information simply helps the Court understand the children’s circumstances.
10. Keep the children out of the adult dispute
Where it is safe to do so, children should not be placed in the middle of disagreements between their parents.
Do not ask them to carry messages, documents or arguments between parents.
Children should not feel that showing love for one parent is disloyal to the other.
Avoid discussing Court proceedings, financial disputes or accusations with children.
Try to preserve routine, school, friendships and familiar activities where possible.
11. When safety is an issue
Different considerations apply where there is family violence or risk of harm
If there is family violence, abuse, threats, coercive control, stalking or concern for a child’s safety, ordinary cooperative parenting arrangements or mediation may not be appropriate.
The law places significant importance on protecting children and the people caring for them from harm.
If you or your child are in immediate danger, call 000. For domestic and family violence support, contact 1800RESPECT on 1800 737 732.
12. The simple way to think about it
They are connected because they arise from the same separation, but legally they are different processes.
The best parenting arrangement is not determined by what one parent wants or by a fixed percentage of time. The focus is on the individual child, their safety and what arrangement is in their best interests.