Children and family law

Australian family law encourages separated parents to consult each other about major long-term issues in relation to their child and make decisions in the best interests of their child.

Most separated parents successfully agree on their own arrangements for the care of their children, including:

  • who is to make decisions for the child, and
  • who they should live with and spend time with.

If parents can’t agree on arrangements for children after separation, specialist family mediation services can help parents come to a mutually agreeable decision or compromise.

If parents still can’t agree, a judge in a family law court will make a decision. The judge’s decision will be based on the best interests of the child in accordance with the Family Law Act.

The Family Law Act is gender-neutral, and does not make assumptions about parenting roles, or how much time a child should spend with each parent.

To talk to someone about your children and your family law matter, please contact:

Parental responsibility

Parental responsibility means all of the duties, powers, responsibilities and authority that parents have in relation to their children.

Each parent ordinarily has parental responsibility for the child regardless of whether they are married, in a de facto relationship, never in a relationship or otherwise. This means that both parents can independently make decisions about the child.

When the parents of a child under the age of 18 separate, they both continue to share parental responsibility for the child in this way.

Australian family law encourages separated parents to consult each other when making decisions on major long-term issues for their child, where it is safe to do so. The best interests of the child are the most important consideration when making these decisions.

Major long-term issues are issues to do with the care, welfare and development of the child, that are of a long-term nature, and include issues about the child’s education, religious and cultural upbringing, health, name and significant changes to the child’s living arrangements.

There is no longer a presumption in place that a court will make orders for parents to share decision-making on major long-term issues equally. The court will simply look at what is right for the child, in the particular circumstances of the case.

A court may decide it is in the best interests of the child to remove parental responsibility from one or both parents. A court can also decide to assign parental responsibility to a legal guardian.

Parenting time

There are no hard and fast rules about making arrangements for which parent a child will live with or spend time with after their parents separate.

This used to be called making ‘custody’ or ‘contact’ arrangements. These terms are no longer used in Australian family law.

There is no rule that children must spend equal or "50:50" time with each parent.

In most cases, it’s best that both parents discuss their child’s individual needs, and come to their own agreement about where a child will live, and how they will spend time with their parents.

There are all sorts of different ways that separated families can make sure that their children have ongoing relationships with both of their parents. If you and your former partner agree on the future arrangements for children, you do not have to ask the court to determine the arrangement. You can simply informally agree an arrangement with the other parent, or make a more formal agreement in the form of a parenting plan or consent orders. Parenting plans and parenting orders both set out arrangements for children, however it is parenting orders that create obligations that are legally enforceable.

The Parenting Orders - what you need to know Handbook provides advice to parents about how to develop and obtain parenting orders.

For more information see Parenting Agreements and “How do I apply for Parenting Orders?”

You may also wish to seek legal advice.

Best interests of the child

Australian law sets out a list of factors that describe how a court will assess what is in the ‘best interests of the child’. Parents might also find it helpful to consider these factors when deciding on parenting arrangements:

  • the safety of the child and people who care for the child (including any history of family violence and family violence orders)
  • the child’s views
  • the developmental, psychological, emotional and cultural needs of the child
  • the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs
  • the benefit to the child of having a relationship with their parents, and other people who are significant to them, and
  • anything else that is relevant to the particular circumstances of the child.

For Aboriginal and Torres Strait Islander children, their right to enjoy their culture must also be considered.

Financial responsibility for children

Both parents also have a duty to support the child financially after separation, regardless of who the child lives with. Parents can manage this between themselves or apply for a child support assessment.

Services Australia administers the child support program, assisting parents to provide support for their children.

Information about the child support program is available at the Services Australia website.

Your child’s wellbeing

It can be hard for children when their parents separate. It is important that you focus on what is best for your children right now, and into the future.

Don’t criticise your children’s other parent or pressure your children to make decisions about their own care. Children love their parents and it can be harmful to put them in a situation where they feel that they have to choose between their parents.

Jesse and Shayna were in a dating relationship for five months, during which time Shayna became pregnant, but they broke up shortly afterwards. When baby Jade is born, both Jesse and Shayna will share parental responsibility for Jade and will share in making decisions about Jade's welfare.

Jesse and Shayna are no longer together, but they continue to share parental responsibility for their baby girl Jade, who is currently 6 months old. Jesse and Shayna have discussed what is best for Jade and reached their own agreement about where she will live and spend time. Jade lives with Shayna, who is still mostly breastfeeding Jade. Jesse spends time with Jade twice a week, on Wednesday evenings and Sunday mornings. Jesse takes her for a walk in the pram to the local park, feeds her, changes her nappy and puts her down to sleep. As Jade grows into a toddler, Jesse and Shayna have agreed that Jesse will spend more time with Jade.

Related links

Legal advice

Federal Circuit and Family Court of Australia – Children

Parenting Orders - what you need to know

Family Law Amendment Act 2023: Factsheet for parents

Next steps

Make a parenting agreement with the other parent.

Or consider if you prefer to have Parenting Orders by consent, approved by a court.

Check out the Parenting Orders - what you need to know Handbook for advice and examples about making parenting orders.

If you can’t agree, seek family mediation and /or legal advice.

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