Divorce and Children Under 18

If you and your partner have children under 18, the Court pays particular attention to the arrangements in place for their care.

This does not mean the Court will make parenting orders as part of your divorce — divorce and parenting are separate legal processes. However, the Court needs to be satisfied that "proper arrangements" exist before granting the divorce.

The Best Interests of the Child

Under Section 60CC of the Family Law Act 1975, the Court considers a range of factors when assessing what is in the best interests of a child. These include:

• The benefit of having a meaningful relationship with both parents (where safe to do so)
• The need to protect the child from physical or psychological harm, including exposure to family violence or abuse
• The child's views, taking into account their age and maturity
• The nature of the child's relationship with each parent and other significant people
• The capacity of each parent to provide for the child's emotional and developmental needs
• The practical difficulty and expense of the child spending time with each parent
• Any history of family violence involving the child or a member of the child's family

Parenting Plans vs. Consent Orders

There are two main ways to formalise arrangements for children:

• Parenting Plan: A written agreement between parents that sets out the arrangements for the children. It is not legally enforceable, but it can be presented to the Court as evidence of the agreed arrangements. Parenting plans are flexible and can be updated as circumstances change.
• Consent Orders: A formal agreement that is submitted to the Court for approval. Once approved, consent orders are legally binding and enforceable. If one parent breaches a consent order, the other can apply to the Court for enforcement.

For most families going through divorce, a Consent Order is the recommended approach because it provides certainty and legal enforceability. However, a Parenting Plan can be a useful interim arrangement while longer-term orders are being finalised.

Family Dispute Resolution

Before you can apply to the Court for parenting orders, you are generally required to attend Family Dispute Resolution (FDR) — a form of mediation. The mediator will help you and your ex-spouse try to reach an agreement about the children without going to court.

There are exceptions to this requirement, including where there has been family violence or where the matter is urgent (e.g., a risk of child abduction).