Children and family law
Under Australian family law, children have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm.
The Family Law Act 1975 is gender-neutral, and does not make assumptions about parenting roles.
When a family court is making a decision about a child, the court will make an order that is in the best interests of the child.
To talk to someone about your children and your family law matter, please contact:
- The Family Relationships Advice Line on 1800 050 321
- Legal aid in your State or Territory
- Parental responsibility
- Parenting time
- Best interests of the child
- Financial responsibility for children
- Your child’s wellbeing
- Related links
- Next steps
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.
If the parents would like to create a legal obligation to jointly make major long-term decisions relating to the child's welfare and upbringing, they should make or request a court order for Equal Shared Parental Responsibility'. 'Major long-term issues' includes things like where a child will go to school, major health decisions, and religious observance.
Equal shared parental responsibility is not the same as equal time.
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.
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 go to court. You can make a parenting agreement or obtain ‘consent orders’ for parenting orders approved by a court.
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
When making decisions about children, what matters the most is that parents focus on what would be in the best interests of their child.
Most separated or divorced parents successfully agree on their own arrangements for the care of their children after joint discussions.
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.
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.
The Department of Human Services administers the child support program, assisting parents to provide support for their children.
Information about the child support program is available at the Department of Human Services’ 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 grow into a toddler, Jesse and Shayna have agreed that Jesse will spend more time with Jade.
Federal Circuit and Family Court of Australia – Children
Parenting Orders - what you need to know
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.