Who Gets Custody of the Children After Separation or Divorce in Australia?
Are you separating or getting a divorce and wondering who will have custody of the kids? What rights do you and your ex-partner have? How do courts decide parenting arrangements in Australia?
These are some of the most common questions separating and divorcing parents ask. In Australia, we no longer use the term “custody” in the legal system — instead, we focus on parental responsibility, living arrangements and time spent with each parent.
This article explains how parenting arrangements work after separation or divorce, what the law says, and how you can protect your children’s best interests.
What Does “Custody” Actually Mean?
Although many people still use the term “custody,” Australian family law has moved away from this language. Instead, the law focuses on:
- Parental responsibility – the rights and responsibilities of parents to make major decisions for the child (e.g. education, health, religion)
- Living arrangements – where the child lives
- Time arrangements – when and how the child spends time with each parent
The change in language reflects the principle that children are not property and that their best interests should always come first.
Who Has Parental Responsibility?
Under the Family Law Act 1975, both parents automatically share equal parental responsibility unless the court decides otherwise.
This means both parents must consult each other on major decisions affecting the child, including:
- Schooling
- Medical treatment
- Cultural or religious upbringing
- Major long-term decisions
In cases involving family violence, abuse or risk to the child, the court may allocate sole parental responsibility to one parent.
Does Equal Parental Responsibility Mean Equal Time?
Not necessarily.
While parents may share parental responsibility, that doesn’t mean children will automatically spend equal time with each parent.
The court will look at:
- What is in the best interests of the child
- How practical equal time would be (e.g. distance between homes, work schedules, cooperation between parents)
The law encourages both parents to play a meaningful role in their children’s lives, but the arrangements must work for the child — not just the parents.
How Do Courts Decide Parenting Arrangements?
If you and your former partner can’t agree, the Family Court can make a parenting order. The court’s primary focus is always the best interests of the child.
The court considers:
- The benefit of the child having a meaningful relationship with both parents
- The need to protect the child from harm (physical or psychological)
- The child’s views, depending on age and maturity
- The parents’ ability to communicate and cooperate
- The child’s relationship with siblings and extended family
- Practical issues like housing, schooling, travel and parental capacity
In serious cases — such as family violence, mental health issues or drug use — the court may limit or supervise time with one parent to protect the child.
Do We Have to Go to Court?
No. In fact, most parenting arrangements are resolved without a trial.
You and your former partner can:
- Negotiate informally between yourselves
- Attend family dispute resolution (mediation) with an accredited mediator
- Record your agreement in a parenting plan
- Apply for consent orders through the Family Court, making the agreement legally binding
A parenting plan is not legally enforceable but can be used as evidence. A consent order is enforceable by the court and can help avoid disputes down the track.
Our firm can guide you through this process and draft practical, clear agreements tailored to your family’s needs.
What If We Already Have an Agreement but Things Change?
You can update your parenting plan or apply to vary your consent orders if your circumstances change — for example:
- One parent moves away
- Work hours change
- The child develops new needs
- Safety concerns arise
We recommend getting legal advice before making any changes, especially if you have court orders in place.
Do Grandparents Have Rights?
Yes, under the Family Law Act, grandparents and other significant carers can apply to the Family Court for time with a child.
The court will consider whether maintaining that relationship is in the child’s best interests, especially if the child has an existing strong bond with the grandparent.
How a Lawyer Can Help
Trying to manage parenting arrangements without legal advice can lead to confusion, unnecessary conflict, or unenforceable agreements. We can:
- Help you understand your legal rights and responsibilities
- Guide you through family mediation or negotiation
- Draft parenting plans and consent orders that suit your family
- Represent you in court, if necessary
- Assist with urgent matters such as recovery orders or relocation issues
We take a child-focused approach to help you reach safe, stable and workable outcomes.
Need Help with Parenting Matters?
At Swanwick Murray Roche, we assist parents across Rockhampton and Central Queensland with all aspects of separation and parenting, including:
- Parenting plans
- Consent orders
- Parental responsibility disputes
- Urgent and high-risk parenting matters
- Grandparent and third-party applications
- Relocation and travel issues
We tailor advice to your family’s needs and help you make informed decisions that protect your children and your future.
Call (07) 4931 1888 or contact us to book a confidential appointment.
Disclaimer
This article provides general information only and does not constitute legal advice. You should seek advice specific to your situation before making any decisions about your family law matter.