Divorce and separation in Australia

Australia’s family legislation operates on the principle of a no-fault divorce. This means when you apply for a Divorce Order, the Court will not consider the reasons for the marriage ending. They will only consider the likelihood that the two parties will reconcile.

The Australian Bureau of Statistics released data in 2020 which showed that 49,116 Divorce Orders were granted in 2019.

Many of the couples who were granted Divorce Orders had children during the relationship.

We take a look at what typically happens to children after divorce in Australia.

Child custody in Australia

A parent who does not have sole custody of their child may still be required to pay Child Support in line with the Child Support (Assessment) Act 1989 (Cth).

In most cases the parents will reach an agreement about parenting arrangements and make a parenting plan by themselves. Even if you have done this, you can still apply to the Family Court of Australia for a Consent Order. A Consent Order makes the agreement binding in law.

Misconceptions about child custody laws in Australia

There is a common misconception in Australia that after separation or divorce, the courts favour the mother when deciding child custody arrangements.

The Sydney Morning Herald published a story in 2019 where retired Federal Circuit Court judge Robyn Sexton was quoted. She said that only 3% of fathers lose the right to see their child and that family violence is normally a factor in cases where fathers do lose access.

There is also a misconception that women are favoured in divorce proceedings. This is not the case as Australia’s Family Law Act is gender neutral.

Best interests of the child

When making a Parenting Order the Court’s primary considerations are the best interests of the child in accordance with the Family Law Act 1975 (Cth).

The Court holds the presumption that it is in the child’s best interests to have a meaningful relationship with both of their parents.

The Court must however give greater weight to the need to protect the child than the presumption of equal shared parental responsibility. If the child has been exposed, or experienced domestic violence then sole custody is likely to be awarded to the other parent.

Even when both parents have equal shared parental responsibility, it is rare that children will spend equal time with both their parents. It may be in the child’s best interest that they live with one parent the majority of the time due to practical difficulty such as getting to school during the week or one of the parent’s work commitments. The child may also have special emotional or intellectual needs.

Your child’s wellbeing

Divorce proceedings can be just hard on children as they are on the divorcing parents. The Courts try to protect children’s wellbeing by leaving them out of the proceedings. It is important to consider your child’s wellbeing after a relationship has ended.

We understand it can be difficult when you’re dealing with an ex-partner. We can help you with parenting agreements so that your children’s wellbeing is not affected.

Conclusion (what the stats say)

Research by the Australian Institute of Family Studies suggests that children are more likely to live with their mothers. This does not however mean that Courts deliberately favour mothers.

Fathers should not be deterred from applying for custody. In 2006, the Howard Government passed the gender-neutral Family Law Amendment (Shared Responsibility) Act 2006, which introduced the presumption of equal shared parental responsibility. When making Parenting Orders the Family Court is required to make Parenting Orders with a presumption that giving equal shared parental responsibility is in the child’s best interests.

In a legal sense, gender-neutral legislation means that the Court does not look at your gender when making Parenting Orders. They look at what will be in the child’s best interests.