Divorce, separation and who you live with

For free and confidential legal advice about this topic, please contact us here.

If your parents are getting divorced or separated, you might be worried about who you are going to live with, or how things are going to change. Both of your parents have a responsibility to look after you. If they can’t decide how to do this after a separation, they can ask the court to help make a decision about the best way to care for you.

Please note there are family law changes from 6 May 2024

What are the main changes?

  • A shorter list of six factors for the court to consider when deciding what is in a child’s best interests, which includes the safety of the child and the people who care for them and the views of the child 
  • All decisions about parental responsibility are based on what is in the best interests of the child in the circumstances of their case 
  • People with parental responsibility will also be given joint or sole decision making about major long-term issues (things like school, healthcare, name, religion and culture) based on the best interests of the child 
  • The court is not required to consider children spending equal time with parents (but can if it is in the child’s best interests) 
  • Independent Children’s Lawyers must meet with children 5 years and older unless an exception applies and give the child an opportunity to say what they want if they wish to do so. 

Who do the changes impact?

The changes apply to all court matters started on or after 6 May 2024, and all matters already before the court on that date, except where the final hearing has started. 

Where to get more information?

We will provide further updates on this website in the future and you can also access more information on the Federal Circuit and Family Court of Australia website here.

Where to get free legal help?

If you are worried about the arrangements for who you live with or spend time with or you feel unsafe at home or you are having trouble speaking with your Independent Children’s Lawyer, please contact us here or via our webchat at the bottom of this page for free and confidential legal advice. 

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What responsibilities do my parents have after they get divorced or separated?

Even if your parents are separating or getting a divorce, both of your parents still have the same responsibility to look after you as before, until you turn 18. However, if your parents cannot agree on how to best take care of you after separating, they can ask the court to make a decision about your care arrangements.

For example, a court may decide that both of your parents still have responsibility to make the big decisions for you (such as which school you go to and if you need to go to hospital) even though you live mostly with one parent. Or, in some cases, the court might decide that it is best if only one parent makes these decisions.

The Court may also decide that someone other than your parents will have responsibility for you.These people may be:

  • other family members; or
  • a foster carer.

Whatever happens, the Court has to make sure that it protects your best interests.

If your parents are separating or getting a divorce, they will have to make decisions about:

  • who is responsible for you
  • who you will live with
  • where you will live
  • how much time you will spend with each parent
  • how much time you will spend with your siblings or step-siblings.

They might also have to sell their house, move to a different suburb or start a new job. It is important to remember that you do not have to choose between your parents, and it is never your fault that they are splitting up.

Your parents separating might be a really difficult time for you and it’s completely normal to feel upset or angry about what’s going on. It’s a good idea to talk to your parents, a trusted family member, or your school counsellor about how you’re feeling.

If you don’t want to talk to someone you know, or if you’re not sure who to talk to you can also call the Kids Helpline. The Kids Helpline provides free and confidential counselling to young people. You can call them anytime on 1800 55 1800, or chat to them online here.  

Who will decide where you live?

Your parents should try to agree on how you will be looked after and who you will live with.  

If your parents can’t agree, they can ask the Family Court to make the decision. The Court will look at information about you and your family and then decide where you will live, how much time you spend with each parent and other issues about how you’re looked after.

How old do I have to be to decide who I want to live with?

There is no rule about how old you have to be to choose who you want to live with. You can have an opinion at any age and your parents should listen to what you have to say.

To help your parents understand why you have made certain decision, it is important to try and explain how you feel. You might like to ask another family member or older friend to help you talk with your parents. It’s a good idea to talk to your parents about your wishes so that they know what you are feeling and what’s going on. For more information about talking to parents see here.

If the Court is deciding where you will live, the judge will always listen to your views. However, they will also consider a lot of other things and try and figure out what is best for you based on all the information they have.

In most but not all cases, the older you get, the more likely it is that the judge will agree with your views on what is best for you. For example, if you are an older teenager who is capable of looking after yourself and understanding the importance of your decision, it is more likely that the judge will make a decision based on your wishes. However, this will always depend on your family circumstances and especially whether you are going to be safe. 

If you want some help or more specific information, please contact us here.

Going to court

If your parents need the Court’s help to figure things out, the judge will look for a solution which they think is the best for you. They will look at things like:

  • your views;
  • how mature you are and how much you understand about what’s going on;
  • your relationship with your parents and family;
  • how the changes will affect you;
  • how practical or expensive any changes are;
  • whether you parents can provide for your needs;
  • your gender and background (including your lifestyle, culture and traditions);
  • the need to protect you from harm;
  • your parents’ attitude towards you; and
  • your parents’ attitude about their responsibility as parents.

You don’t need to go into the courtroom or give evidence and you won’t be forced to choose between your parents.  

We can give you more specific advice on going to court if you contact us here.

Can I spend equal time with both parents?

The Court has to make a decision based on what they think is in your best interests. This might not always be what you want. The judge will look at all the different things we listed above and decide whether it is best for you to spend equal time with both your parents, or a different amount of time with each parent.

In some cases, the judge might think that it is impractical for you to spend equal time with both parents, even if this would be good for you. This might happen if one of your parents lives far away from your school or has a job which means they work very late and cannot look after you in the evening.

How can I have a say?

During the court process, you might have a chance to explain how you feel and what you think about your family.

You may meet lots of different people as your family goes through the court process. These might include a family consultant, social workers, police and medical professionals.

Some of these people will make reports to the court about you or your family. If you have an opinion about where you would like to live or about any other decisions affecting you, you can discuss them with these people and they might be able to tell the judge what you think.

Can I get a lawyer?

In more complicated cases, the court may ask an Independent Children’s Lawyer (ICL) to represent your best interests. The ICL is a lawyer but they don’t work for your parents.  Instead, they give their opinion to the judge about what they think is the best decision for you, even if they disagree with both of your parents.  

They are there to:

  • answer your questions;
  • listen to your views
  • tell the Court what you want (if you want them to or they think it’s in your best interests);  and
  • help the judge make the best decision for you.

The ICL might disagree with you about what the judge should decide.  But the ICL still has to tell the judge what you think even if they disagree with you.

Sometimes, the ICL will not meet with you face to face. This might happen if you live too far away.

However, he or she must still represent your best interests. They should try to make sure you get a chance to speak to them, even if it’s over the phone.

What happens after the Court makes its decision?

Someone will explain the decision to you. This person may be one of your parents, an independent children’s lawyer or a family consultant. Your parents will be responsible for making sure they follow the orders the court has made.

For more legal information about divorce and living arrangements you can check out this website.

If you would like free and confidential advice about your living arrangements, or anything else, please contact us here.

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