Separation & Children:
What Happens With the Kids?

The first question: what is best for the children?

When a relationship ends, one of the biggest questions is: “What happens with the kids?” Australian family law focuses on each child’s best interests, not on which parent is right or wrong. The same broad parenting-law framework applies whether the parents were married, in a de facto relationship or never lived together.

There is no automatic rule that a child must live mainly with one parent or spend equal time with both. Parents can often make safe, practical arrangements without going to court. Where there are risks, however, protecting the child and the affected family members comes first.

Who makes decisions about school, health and other major issues?

Important legal update: from 6 May 2024 the former presumption of equal shared parental responsibility was removed. It is therefore incorrect to say the law automatically requires both parents to share all major decisions.

Parents generally retain parental responsibilities unless a court order changes the position. When a court makes parenting orders, it may allocate joint or sole decision-making responsibility for major long-term issues according to the child’s best interests. These issues can include education, significant health decisions, religion, cultural upbringing and a child’s name.

If it is safe, parents are encouraged to consult each other. Existing parenting orders must be checked before changing how decisions are made. Joint decision-making does not mean equal time.

Where will the children live and how much time will they spend with each parent?

There is no prescribed 50/50 timetable. An arrangement should reflect the child’s age, wellbeing, safety, relationships, school, routines, cultural needs and the practical capacity of each household. A schedule that suits a teenager may not suit a toddler.

Some families choose shared care, others arrange school-week care with one parent and weekends with the other, and some require supported or supervised contact because of safety concerns. The right approach depends on the circumstances.

Do you have to go to court?

Usually not. Parents may agree privately, make a parenting plan, or apply for consent orders where enforceable arrangements are needed.

When parents cannot agree, family dispute resolution (FDR) is generally required before applying for parenting orders, subject to exceptions including urgency, family violence and child abuse. FDR is not always safe or appropriate. A court can make orders when an agreement is not possible or protective intervention is needed.

Parenting plan or consent orders: what is the difference?

A parenting plan is a voluntary written agreement, signed and dated by the parents, that sets out arrangements for the children. It may cover living arrangements, time with each parent, communication, holidays and decision-making. It is not directly enforceable like a court order, although it can be relevant to later court decisions.

Consent orders are orders made by a court on application where the parties agree and the court considers the proposed parenting arrangements appropriate. Once made, they are legally binding. You do not simply “convert” a plan into orders automatically: an application and court assessment are involved. Read about types of parenting orders.

What does the court consider?

The Family Law Act 1975 requires a court to treat the child's best interests as the paramount consideration. Current law directs attention to matters including:

• the safety of the child and of people who care for the child;
• the child’s views, considered in light of their age and circumstances;
• the child’s developmental, psychological, emotional and cultural needs;
• each proposed carer’s capacity to meet those needs;
• the benefit of relationships with parents and other significant people, where safe.

Additional considerations support Aboriginal and Torres Strait Islander children’s rights to enjoy their culture and connections with family, community and Country.

What if there is family violence or coercive control?

Parenting after separation is not always a matter of two adults negotiating on equal terms. Threats, intimidation, coercive control, abuse, stalking or violence may make direct negotiation or ordinary changeovers unsafe.

Seek tailored legal and safety advice before agreeing to arrangements. Depending on the circumstances, protected communication channels, supervised contact, neutral handovers or urgent court orders may be needed. Do not assume children must have contact in a particular way if safety is at risk.

If someone is in immediate danger, call 000. For confidential family violence support in Australia, contact 1800RESPECT (1800 737 732).

Listening to children without placing decisions on them

Children can feel anxious, confused or responsible for their parents’ separation. Reassure them that the breakdown is not their fault. Keep routines predictable, explain arrangements in age-appropriate language and avoid asking them to choose sides.

The child's views matter, but children are not expected to resolve adult disputes. Try to keep conflict, criticism and detailed legal discussions away from them. Professional support can be helpful where a child is distressed.

A practical checklist for the first few weeks

• Record the children's school, medical, dietary and additional support needs.
• Set up a safe way to communicate about practical arrangements.
• Agree on an interim routine, including pickups, holidays and emergencies, if it is safe to do so.
• Consider whether a signed parenting plan or court-approved consent orders would provide greater clarity.
• Review any existing court orders before making changes.
• Check child-support arrangements separately; parenting time and child support are related but not the same question.
• Seek specialist advice early if there is violence, relocation, overseas travel, a serious disagreement or a risk that a child may be removed.

Final thought

You do not have to go to court to parent well after separation. Many families establish workable arrangements by focusing on safety, consistency and the children’s changing needs. Where agreement is difficult or unsafe, there are formal processes and support services available.

Aussie Divorce provides plain-English information to help you understand the choices. It is not a law firm and this guide is general information, not individual legal advice.