Family Law – Children – Overview

December 19, 2023

Children: Overview

Even though you are separating, both parents are the most important people in your child’s (or children’s) life. When there are no safety or risk issues, the best arrangements for the future are those where:

your child continues to have a loving and meaningful relationship with both parents and other family members
both parents continue to share responsibility for the child, and
your child lives in a safe environment, with no violence or abuse.

Parental separation can be a stressful time for a child. How they react to separation and divorce often depends on their age, temperament and the level of cooperation or conflict between their parents. They may experience a range of emotions which are difficult for them to deal with. If you or your child are feeling stressed following separation, see the publication Separation and stress.

Children from separated families can develop and flourish just as well as children from families that are still together, especially if they are supported and encouraged to maintain a positive relationship with both parents and other significant people in their lives, like grandparents and other relatives.

The Marriage, families and separation brochure provides information for people considering, or those affected by, separation or divorce.

What does a child need?

A child needs the continuing care and support of both parents, where possible. They will worry less if you can agree about what is going to happen and explain why to them. You both should:

reassure your child that you still love them
remember that accepting, and dealing with, the separation will enable you to better assist your child to do the same
allow your child the right to love both of you – don’t make them choose
tell your child that they are not to blame, and help them to discuss their feelings – they often blame themselves, especially when parents fight about them, or things they have done
listen sympathetically to your child’s feelings and opinions without judgment
talk with the other parent about issues relating to your child
make sure your child doesn’t hear or see you fighting
keep your child out of your arguments with or about the other parent
be positive about the other parent when talking to your child
turn to other adults for emotional support, rather than to your child
talk with your child’s teachers so they understand the situation, and
keep your focus on your child’s wellbeing, rather than on what is ‘fair’ for you.

There is more information about how conflict between parents and family violence can effect children in the fact sheets Parental conflict and its effect on children and The impact of family violence on children.

What do you need to consider when making parenting arrangements for your child?

Every family is different, so the arrangements that work for your family may be different from other families. Try to make arrangements that will work the best for your child.

When making arrangements for your child, you will need to consider:

the age of the child which is very important in deciding what arrangements will work
establishing a regular routine so the child knows the routine and what to expect when, but also being flexible when required
giving plenty of notice if you wish to change the routine, for example, for special family occasions
whether it is reasonably practical for the child to spend equal time or substantial and significant time with each parent (substantial and significant time includes weekends, school holidays and days other than those)
how their time will be spent with other significant persons in their lives, such as grandparents and other relatives
who will look after them after school and where will they spend holidays
any other things such as choice of school, health care, sport, or religious matters, and
how to ensure the child continues to enjoy their culture.

If it is safe to do so, it is generally best if you can reach your own agreement with your former spouse or partner.

Making your own agreement is often best for your child, you and your former partner. It will save you both money, time and stress. For more information about ways you may be able to reach an agreement without the need for court action, see Separate smarter.

There are three main ways you can make arrangements for your child after separation:

informal arrangements
parenting plans, and
parenting orders, including by consent.

What sort of parenting arrangement you make may depend on how you and your former partner come to the agreement.

If you agree on arrangements, you can make a parenting plan or seek to formalise your agreement by applying for consent orders.
If you cannot agree on some issues, you can use dispute resolution or mediation to help you resolve any issue in dispute.
If you cannot reach an agreement, you can apply to the Court for parenting orders.

TIP: Divorce is a completely separate process to parenting proceedings.

The law relating to children and their best interests

Part VII of the Family Law Act 1975 gives the Court power to make orders for the care and welfare about children in Australia (except Western Australia). Orders about children are commonly referred to parenting orders, even though they can apply to a person who is not a parent of the child the proceedings relate to.

When determining any dispute about children (including about with whom a child should live and/or spend time, who should make decisions about a child, and matters like where child should go to school or whether a child should have a medical procedure), the Court must regard the best interests of the child as its paramount consideration. The Family Law Act 1975, provides guidance as to how the Court determines a child’s best interests, but the Court has discretion to consider anything it thinks relevant in determining those best interests.

The ‘primary considerations’ for determining a child’s best interests, to which the Court is required to give the greatest weight, are the benefit to the child of having a meaningful relationship with both of their parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing those primary considerations, the Court must give greater consideration to protecting the child from harm (see section 60CC(2) and 60CC(2A) of the Family Law Act 1975).

Can the Court make orders about my child?

The Court generally has jurisdiction to make orders for the care and welfare of children in all states and territories except Western Australia (where the Family Court of Western Australia has jurisdiction).

If your child is in care under a child welfare law of a state or territory, the Court cannot make a parenting order about them, except with the consent of the relevant child welfare authority. This applies even if your child comes into care under a child welfare law after you already have proceedings in the Court about your child.

How is the voice of the child considered?

The court process is designed to balance the need to protect children from conflict with the child’s right to have a voice in decisions being made about them. This video is about how a child’s voice is considered in a family law case in the Federal Circuit and Family Court of Australia.

3:56 MIN

https://www.fcfcoa.gov.au/media/oembed?url=https%3A//youtu.be/OOU_67V_cXs&max_width=850&max_height=500&hash=M97P7Ana6XX1upWmcA3Xlwfm6_OWXV3UPgsWeU5Q3II

An AUSLAN version of this video is also available.

Other considerations in parenting matters

Each family is different and their needs are unique. If any of the following apply to your situation please see the additional information:

If you are not a child’s parent but you are a person concerned with the care, welfare and development of a child, or you are a grandparent of a child, see Grandparents and others.
If you want to change your parenting orders or current arrangements, see Changing parenting arrangements.
If you believe your application for a parenting order is urgent see, My application is urgent.
If you have a current parenting order that you believe has been breached or not complied with, see Compliance and enforcement.
If your child normally lives with you and hasn’t been returned to you, or is missing, you can apply for orders to help you to find your child, see Recovery orders.
If your child has relocated without your agreement, have been taken overseas without your permission, or without the authorisation of a court or has not been returned (as agreed) from overseas, see Relocation, travel and the Hague Convention.
If you have applied to the Court for a parenting order in some circumstances, the Court may appoint an Independent Children’s Lawyer to represent your child, see Independent Children’s Lawyer.

Safety, risk and family violence

If you are in immediate danger call 000

The Court takes family violence very seriously. See How the Court considers safety and risk for more information.

If you or your child is affected by family violence and safety concerns there are a number of organisations that provide advice and support. See Family Violence: Get help and support.

If you have any concerns about your safety while attending court, you must let the Court know. See Safety at court for more information about safety plans and what the Court can do.

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Find a lawyer and Support services.

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.

In general, practice directions are issued to:

complement particular legislative provisions or rules of court
set out more detailed procedures for particular types of proceedings, and
notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

***Disclaimer – The above information was taken from the Federal Circuit and Family Court of Australia as accurate in October 2023. If any changes are made by the court from that date they may not be reflected in this post