Children and Divorce – What you need to know about your Rights

Separation and divorce is traumatic for both you and your family. As a parent, it is natural to worry about how your children will be affected - particularly once you and your partner begin living separately. We've compiled an overview of your rights and responsibilities under Australian family law to help. 

Remember you are both important to your children

Your children love both you and your partner equally. It is best when arrangements allow children to continue having a stable, meaningful relationship with both parents. It is very important not to blame each other in front of the children, and you should avoid arguing where possible.

Children need stability during this stressful time, and it will go smoother for them if you maintain as much civility as possible. 

You both have parental responsibilities

It is important to remember that until your children are 18 years old, you still have full parental responsibility for them - whether you are married or living separately. That means you must consider their welfare at all times. Under the Family Law Act 1975, this means:

• It does not matter whether you ever lived together
• You both have a say in where the child lives and goes to school, and all other aspects of day-to-day care
• You are both responsible for the financial upkeep of the children
• Adoptive parents have the same rights as biological parents
• Responsibility is generally split 50/50 but this does not mean that time shared with children will also be split 50/50

While it’s not always possible given every situation is unique, making an agreement with your partner between yourselves can be effective. This is less contentious and better for the children. Any arrangements you make with your partner must align with your children's best interests.

If you have child safety concerns

Parental rights can be revoked if there is evidence of domestic, sexual or other abuse. If you have any concerns, seek professional advice as soon as possible. 

Agreeing on who your children live and spend time with 

Finding agreement on living arrangements and visitation is better for your children and the entire family dynamic. If you reach agreement, you can:

• Make a parenting plan, which is worked out and agreed jointly by you without court intervention
• Obtain consent orders which are legally binding and can be applied for by anyone with an interest in the care, welfare and development of a child 

Specialist family law solicitors can advise you which option is best for you. Parting can be less stressful with the right support. 

When there is disagreement

Unless there are safety concerns, you will be expected to attend a type of mediation known as a Family Dispute Resolution Conference to try to resolve matters as amicably as possible. If this fails, you may apply to the court for legally binding parenting orders for any aspect of care from living arrangements to visitation. The court will also consider the views of the children themselves. 

If you are a parent going through separation and divorce, it is important you have the right support. For more helpful and practical advice, download our free ebook, "Separation and Divorce: Putting your Children First".