Going through separation with children is one of the hardest things you'll face. Here's what the law says, in plain English.
You Don't Need to Agree on Everything Immediately
Many separating parents feel immense pressure to resolve every issue at once — where the children will live, who keeps the house, how super gets split. That pressure is understandable but usually counterproductive. The law allows for staged agreements, and rushing decisions during the most emotionally charged period of your life often leads to outcomes you regret years later. In the immediate aftermath of separation, focus on what is most urgent: where the children will spend time with each parent and how immediate financial needs will be met. More complex matters — property division, superannuation, long-term parenting arrangements — can be addressed once the initial shock has settled and you have had the opportunity to receive proper legal advice tailored to your specific situation.
The Court's Only Concern Is the Children's Wellbeing
If your parenting matter goes to court, the Family Law Act 1975 requires the decision-maker to focus exclusively on the best interests of the children. Fault does not factor in — who left the relationship, who had an affair, who earns more money. What matters is what arrangement will best support the children's safety, their relationships with both parents, their education and stability, and their emotional development. Understanding this principle early is enormously helpful. It means that even if you have legitimate grievances about your partner's behaviour during the relationship, those grievances are unlikely to determine the parenting outcome. The question the court will ask is not 'who was the better partner' but 'what arrangement is best for these specific children going forward'.
Property Settlement and Parenting Are Separate Legal Processes
Many people believe you cannot resolve property until parenting is sorted — or that resolving one affects the other. This is a common misconception. Under Australian family law, property settlement and parenting arrangements are entirely separate legal processes governed by different provisions of the Family Law Act. They can be negotiated independently, and resolving one does not depend on resolving the other. In practice, this often speeds things up considerably. If you and your former partner can agree on parenting arrangements relatively quickly, you can document those arrangements formally — and then tackle property separately at whatever pace the complexity of your financial situation requires.
Parenting Plans vs Consent Orders — What's the Difference?
Many separating couples document their parenting arrangements informally in a written document sometimes called a parenting plan. A parenting plan is flexible and non-enforceable — it records what the parents have agreed but cannot be enforced by a court if one parent later refuses to comply. Consent orders are different: they are approved by the Federal Circuit and Family Court and carry the same force as any court order. If a parent breaches consent orders, the other parent can apply to the court for enforcement, which may result in make-up time, a fine, or in serious cases a community service order or change to the parenting arrangement. For most families, the certainty offered by consent orders is worth the additional effort. A family lawyer can prepare the documentation and advise on whether the proposed orders are likely to be approved.
What About the Family Home?
The family home is usually the most significant asset in a property settlement and also the most emotionally charged. Options include one party buying the other out at an agreed price, selling the property and dividing proceeds, or — in some cases involving children — a deferred sale arrangement where one parent continues to live in the home until the children reach a specified age. The right outcome depends on each party's financial capacity, housing needs, and the overall asset pool. An important point: staying in the family home during negotiations does not automatically give you a right to keep it. Conversely, leaving does not mean you forfeit your interest in it. Early legal advice on the property options available to you can prevent costly misunderstandings.
When Mediation Is Required — and How It Helps
Before filing an application in the Family Court for parenting orders, you are generally required to attend family dispute resolution (FDR) — commonly called mediation — unless an exemption applies. Exemptions include cases involving family violence or child abuse, urgent matters, or situations where one party is unable to participate safely. FDR is conducted by an accredited practitioner and aims to help parents reach agreement without court proceedings. If mediation is unsuccessful, the practitioner issues a Section 60I certificate, which must be filed with the court before your application will be accepted. While mediation can feel daunting when a relationship has broken down, many families find it faster and less damaging to children than contested court proceedings. Even where full agreement is not reached, mediation often narrows the issues in dispute — saving time and costs in any subsequent proceedings.
Child Support — How It Works
Child support is separate from property settlement and is administered by Services Australia. The amount is calculated using a formula based on each parent's taxable income, the number of nights children spend with each parent, and the children's ages. Parents can agree on private arrangements — including departures from the formula amount — or apply through Services Australia for an administrative assessment. In some circumstances, a court order for a non-standard amount can be sought through the Family Court, for example where one parent's income is unusually high or where the children have special needs. Child support is intended to cover ordinary day-to-day costs of raising children; it does not cover extraordinary expenses such as private school fees or significant medical costs, which are generally shared separately by agreement or court order.
Need Legal Advice on This Topic?
Our experienced family law lawyers are ready to help. Get expert, transparent legal advice.