The Separated Dad's Guide to Family Law in Australia

Don’t rush into big decisions just because you feel you need to do something.

Work out the immediate practical issues first. Where are the children staying? When will you next see them? Who is paying the mortgage, rent and household expenses? Do you still have access to your bank accounts and important financial information?

Keep copies of important documents and communications about the children, and be particularly careful about angry texts or emails. Something written in the heat of the moment can become important much later.

You don’t necessarily need to rush to Court or engage a lawyer immediately.

But before you move out, agree to a new parenting arrangement, move money or sign anything, make sure you understand the consequences.

Maybe. But don’t assume you have to leave just because the relationship has ended.

Moving out does not mean giving up your interest in the house. But if you have children, it can affect what happens practically.

If you move out and the children remain living primarily with their mother, a new routine can quickly develop. What starts as “I’ll stay somewhere else for a couple of weeks while things calm down” can become the arrangement everyone is working around months or years later.

Sometimes leaving is absolutely the sensible option, particularly if remaining together is highly conflictual or unsafe.

The important thing is to think about the children’s arrangements before you pack the car. Where will they stay with you? When will you see them? How will school and activities work?

If you’re unsure, get advice before you move rather than trying to unscramble things afterwards.

Australian family law does not give mothers more parenting rights than fathers. But it doesn’t give either parent an automatic right to 50/50 care either.

If parents cannot agree, the Court decides parenting arrangements based on what is in the best interests of the child, including their safety, needs, relationships and each parent’s capacity to care for them.

So rather than focusing only on “What are my rights?”, it is often more useful to ask:

“What arrangement is best for my children, and how can I show that I can make it work?”

Being the father does not put you second in the queue. But the outcome will depend on your children, your family circumstances and the evidence, not simply whether you are Mum or Dad.

Read more: A Father’s Practical Guide to Custody and Parenting Orders in Australia

If you’ve agreed about the children, it’s a good idea to record exactly what you’ve agreed.

That might include where the children live, time with each parent, school holidays, Christmas and birthdays, changeover location and time, travel and how important decisions will be made.

You can record your agreement in a parenting plan, or you can ask the Court to formalise it as consent orders. A parenting plan is not legally enforceable; consent orders are Court orders and can be enforced.

Which one is appropriate depends on your circumstances.

“We’ll just work it out between ourselves” can work very well while you’re both agreeing. The problems start when one of you doesn’t.

We explain parenting plans and consent orders in more detail below.

Not necessarily. Many separated parents are able to reach an agreement themselves or through mediation without having lawyers involved at every step.

But getting some legal advice early can be very different from “lawyering up” and starting a fight.

A family lawyer can explain where you stand, what your options are and, importantly, whether there is anything you should not do.

Getting advice becomes particularly important if you’re being stopped from seeing your children, there are allegations or an AVO, your ex wants to relocate, you’re worried the children may be taken overseas, or there are significant property or financial issues.

Sometimes one appointment is enough to confirm you’re on the right track. Other times it identifies a problem that is much easier to deal with now than six months down the track.

Great. Going to Court isn’t compulsory just because you’ve separated.

If you have agreed where the children will live, the time they will spend with each parent and the other important arrangements, you can document that agreement rather than commencing contested proceedings. The Court itself recommends formally documenting agreements to reduce later misunderstandings.

Depending on your circumstances, you might use a parenting plan or apply together for consent orders.

Being amicable is a very good reason to sort out the details while you are both communicating well.

A clear agreement made while you’re getting along can prevent arguments later about what you thought you had agreed.

A Parenting Plan records what you have agreed. Parenting Orders make the arrangement legally enforceable.

A parenting plan is a written, signed and dated agreement between parents about arrangements for their children. It can cover where children live, time with each parent, communication and decision-making, but it is not itself legally enforceable.

Parenting orders are orders made by the Court when the parents are unable to reach an agreement. If you have reached agreement, you can apply for consent orders without having to fight the matter out at a hearing. Most matters, even if they start in court, will end with Consent Orders being made along the way. Orders, whether consent or parenting, are legally enforceable.

Which one you need depends largely on how much certainty and enforceability your family needs.

Read More: Do You Need Parenting Orders?

Yes, 50/50 care is possible. But there is no automatic rule that children should spend equal time with each parent.

If parents cannot agree, the Court looks at what arrangement is in the best interests of the particular child, including safety, the child’s needs and views, each parent’s capacity to care for them, and the benefit of relationships with parents and other significant people.

Equal time also has to work in real life. School, distance between homes, work schedules, the child’s age and the parents’ ability to make the arrangement work can all matter.

The question isn’t simply “Am I entitled to half?” It’s whether 50/50 is a good arrangement for your child.

Read more: Can a Father Get 50/50 Custody in Australia?

Very young children can make parenting arrangements after separation even trickier. The most important consideration is what will work best for the child.

It is important for Dad to be a regular and meaningful part of a young child's life. But if your child is a baby or toddler and Mum has been their primary carer, you may need to be flexible about how your time with them develops.

For a very young child, shorter but more frequent time with Dad may sometimes work better than immediately trying to establish long periods away from their primary carer. Feeding, sleeping, routines, the child's relationship with each parent and how accustomed they are to being cared for by Dad can all be relevant.

That doesn't mean Dad should simply accept being sidelined until the child is older. Quite the opposite. The aim is to build and maintain the child's relationship with Dad in a way that works for the child, and then allow the arrangements to develop as the child grows.

What works for a six-month-old may be quite different from what works for a two-year-old — and different again by the time they start school.

If you and your ex are having difficulty making an arrangment that works for everyone, mediation may be the next step for you to explore.

The Court’s paramount consideration is what is in the best interests of the child. There is no automatic 50/50 rule and no automatic preference for Mum or Dad.

The Court considers matters including the child’s safety, their views, their developmental, psychological, emotional and cultural needs, each proposed carer’s capacity to meet those needs, and the benefit of the child having relationships with parents and other significant people where it is safe.

Every family is different, which is why what happened in your mate’s divorce may have very little to do with what will happen in yours.

The focus is the particular children and the parenting arrangement that best meets their needs.

Read more: A Father’s Practical Guide to Custody and Parenting Orders in Australia

Act early, but keep your cool. Angry messages, threats or turning up unannounced are unlikely to help and may make things considerably worse.

Ask in writing why the children are being withheld and make clear, reasonable proposals for when you can see them. Keep a record of what is happening and of your attempts to resolve it.

If you don't have orders, you may need to negotiate, attend mediation or seek parenting orders.

If you do have parenting orders, withholding the children may amount to a contravention of those orders, although there can be circumstances where a parent has a reasonable excuse for not complying.

Most importantly, don't let a temporary arrangement quietly become the new normal. Get advice early about what you can do next.

Read More: Can A Mother Withold A Child From The Father

Take them seriously, even if you know they aren't true. Don't assume that because an allegation is false it can simply be ignored.

Allegations of family violence, abuse, drug or alcohol misuse, mental health concerns or other risks can affect parenting arrangements while the facts are being investigated. The Court is required to consider safety and risk and, where allegations of child abuse or family violence are raised, may make interim or procedural orders while evidence is obtained.

Avoid angry denials or retaliatory allegations. Work out exactly what is being alleged, preserve relevant evidence and get advice about how best to respond.

Your job isn't just to say “it didn't happen”. It's to calmly provide the evidence that helps show what actually did.

Read more: False Allegations in Family Court Australia: What Can a Father Do?

An AVO does not automatically mean you cannot see your children. But you need to understand exactly what the AVO says before making contact.

Some AVOs prohibit contact with the other parent but allow contact for the purpose of spending time with children or complying with parenting orders. Others may contain conditions that directly affect changeovers, communication or contact with the children.

Parenting orders and family violence orders can also interact, so this is not an area where you should guess about what you are allowed to do.

Do not breach an AVO in an attempt to see your children. Breaching an order can have serious consequences and may make your family law situation considerably harder.

If an AVO is affecting your time with the children, get advice about how parenting arrangements can safely continue.

Don’t immediately assume your ex is turning your child against you. There can be many reasons a child starts resisting time with a parent, and understanding why matters.

Avoid interrogating the child, asking them to choose sides or repeatedly questioning them about what the other parent has said. That can backfire for you by placing even more pressure on them.

If you are still able to speak with them, keep your communication with your child warm and reassuring, and continue making reasonable attempts to maintain the relationship. Keep a record of missed time and relevant communications with the other parent.

If the refusal continues or becomes more serious, get advice early. Depending on the circumstances, mediation, counselling, a family report or Court intervention may be appropriate.

The goal is not to make your child “pick you”. It is to understand what is happening and protect your relationship with them before the situation becomes entrenched.

READ MORE: Is This Parental Alienation

If a move would significantly affect the children's time with you, it should be agreed between the parents or determined by the Court

Relocation cases are decided according to the best interests of the children. The Court can consider the proposed move, the reasons for it, the effect on the children’s relationships, practical travel arrangements and each parent’s proposals for the children.

If you become aware that your ex is planning to relocate with the children and you do not agree, you need to act early.

It can be much more complicated once the children have already moved, started a new school and established a new routine.

Don’t wait until the moving truck arrives. Get advice as soon as relocation is being seriously discussed.

Read more: Can a Mother Move Interstate with My Child?

Overseas travel with children after separation usually requires the other parent’s agreement or Court orders, particularly if parenting proceedings are already underway.

If parenting orders have been made, or parenting proceedings are on foot, taking a child out of Australia without the required written consent or a Court order can actually be a criminal offence.

If you are genuinely concerned that your children may be taken overseas without your agreement, act quickly. The Court can make orders preventing a child from leaving Australia and you can request that the child be placed on the Australian Federal Police Family Law Watchlist. 

This is one situation where waiting to see what happens can be a serious mistake. Get advice as soon as you believe overseas travel is a real possibility.

It is not the case that the person who stays in the house gets to keep it, or that the person who moves out gives up their interest in it.

The family home will usually form part of the overall property settlement, together with other assets, superannuation and liabilities.

Who ultimately keeps the house depends on the overall property settlement and, importantly, whether that person can actually afford to retain it and would be approved to refinance any mortgage if required.

Sometimes one person keeps the house and the other receives other assets or a payment for their share. If there are no other significant assets, the house may need to be sold.

However, if you do decide to move out, make sure you move somewhere that allows the children to also spend time and stay with you. If that isn't immediately possible, finding suitable accommodation should be a priority.

Moving out of the family home does not mean giving up your interest in the property, but where you move can have a very practical impact on your parenting arrangements.

There is no automatic 50/50 split in Australian family law.

A property settlement looks at the whole financial picture, including what each of you owns and owes, the contributions you each made during the relationship and your current and future circumstances including care of children and income earning potential.

Contributions include property brought into the relationship, inheritances, care of non-biological children and work done to improve or maintain assets.

The Court then considers whether the proposed outcome is just and equitable.

So be wary when someone tells you “you'll get 50%”, “she'll get 70% because she has the kids” or “I paid for the house, so it's mine.”

There isn't a standard percentage. Your entitlement depends on the circumstances of your particular relationship and financial position.

Start by knowing exactly what you both own and owe. Don't assume something doesn't matter simply because it is only in your name or your ex's name. Property, superannuation, financial resources (businesses or shares) and liabilities all need to be identified when working out a property settlement.

Download statements and keep copies of important financial records. Check bank accounts, credit cards, mortgages, redraw facilities, loans and other liabilities. Know what is there now.

Neither party should empty accounts, hide money or transfer assets. If you are genuinely concerned that money may be withdrawn, assets sold or the financial position changed, get advice quickly. You may need to take steps to protect the property while a settlement is being worked out. 

You also both have obligations to provide 'financial disclosure'. This can include bank and credit card statements, tax returns, payslips and other documents showing your financial position. Failing to provide proper disclosure can delay a settlement and can have serious consequences.

So start getting your financial documents in order now. Protecting your assets starts with knowing what exists, preserving the records and getting advice early if something is at risk.

Possibly. Having the children 50/50 does not automatically mean that no child support is payable.

Child support is calculated using a formula that takes into account each parent's income, the costs of raising the children and the percentage of care provided by each parent. You can estimate your position using the government website calculator.

So even where the children spend equal time with Mum and Dad, one parent may still pay child support if there is a significant difference between their incomes.

Likewise, changing the amount of time the children spend with each parent can affect the child support assessment.

50/50 care means equal time. It does not necessarily mean equal incomes, equal costs or zero child support.

Don't look only at your house and bank accounts; superannuation can be a significant part of the overall property pool, particularly after a long relationship.

Superannuation is treated as property in a family law property settlement. It doesn't stay out of the equation simply because you don't currently have access to it.

As part of a property settlement, it is possible to split superannuation between former partners. A super split is not automatic, and it doesn't necessarily mean both super balances will end up equal, but it may be negotiated as part of your overall settlement.

If a super split is agreed or ordered, the amount is generally transferred to the receiving person's superannuation and remains subject to the usual superannuation laws and rules.

Usually, if you want to apply to the Court for parenting orders, you first need to attempt Family Dispute Resolution (FDR), which is a form of mediation. But there are exceptions.

But what if the other parent simply refuses to attend?

You cannot force someone to participate in mediation (unless it is court ordered). However, their refusal does not mean you are stuck. A Family Dispute Resolution Practitioner may issue a section 60I certificate confirming that the other parent did not attend or that mediation could not proceed. That certificate allows you to make an application to the Court.

There are also circumstances where you may be able to make an application to the Court without first attempting mediation. These include certain urgent matters (relocation, absconding overseas) and cases involving child abuse.

If the other parent refuses mediation, don't assume that means nothing can happen. Their refusal does not give them a veto over you taking the matter further.

If you attend mediation but can’t reach an agreement, that doesn’t mean you have failed. Sometimes mediation helps narrow the issues even when it doesn’t resolve everything.

If no agreement can be reached, the Family Dispute Resolution Practitioner can issue a section 60I certificate, which will generally allow you to apply to the Court for parenting orders.

Before doing that, consider whether there is still room for negotiation. Sometimes a solicitor’s letter, a more detailed proposal or another round of discussions can resolve the remaining issues without Court.

But there is also a point where continuing to negotiate gets you nowhere.

If the children are being withheld or the current arrangement is unacceptable and the other parent simply won’t agree to change it, you may need to take the next step and ask the Court to make parenting orders.

Don’t ignore it. Being 'served' means the other parent has started Court proceedings and is asking the Court to make particular orders about your children.

Read the application carefully. What orders are they actually asking for? Check the next Court date and, importantly, any deadlines for filing your response or other documents.

Being served does not mean the Court has agreed with what the other parent is asking for. You will have an opportunity to respond and tell the Court what orders you say should be made.

But Court proceedings have rules, deadlines and consequences if documents are not filed properly or on time.

This is one of the points where getting legal advice quickly is important. Take the documents you were served with and find out what you need to do, and when you need to do it.

Usually, your first Court event will be listed around 1–2 months after your application is filed, unless the matter is considered urgent. 

But your first Court date is not usually the hearing where evidence is considered and decisions are made about where the children live or how they spend time with each parent.

The first Court event is generally used to identify the issues and make directions about what needs to happen next. This may include setting a date for an interim hearing and ordering that further information or evidence be obtained. An Interim hearing is often around 3 - 4 months after the initial hearing.

Before an interim hearing, the Court may require information from the parents, police or child protection authorities, or order other steps such as drug testing, parenting courses, an expert report or the appointment of an Independent Children's Lawyer (ICL).

At the interim hearing, the Court considers the available evidence and can make temporary orders about where the children live, the time they spend with each parent and other issues that need to be determined while the case continues.

These are interim orders, meaning they are not the final outcome of the matter. However, they can remain in place for a significant period while the matter progresses.

Most matters do not ultimately need to be decided at a final hearing. There are many opportunities to negotiate and resolve the case along the way, including Court-ordered dispute resolution.

So when you hear “we're going to Court”, don't think of it as one big hearing. It is a process, with multiple opportunities to resolve the matter.

At Full Circle Legal, we generally ask for an initial $5,000 to be held in trust, and then request further funds in $5,000 increments as the matter progresses. You are not expected to pay the entire estimated cost upfront. If your matter settles at any point along the way and there are funds remaining in trust after your final account is paid, the balance is returned to you.

For a matter that progresses to Court, a typical estimate to file may be around $15,000–$25,000. If the matter then proceeds to an interim hearing, you may need to allow a further $5,000–$10,000 to prepare for and run that hearing.

Why such a big range?

Because no two clients or cases require the same amount of work. One client may provide us with well-organised documents, a clear chronology and information when we ask for it. Another may have thousands of pages of police, medical or mental health records to review, multiple business interests, require considerable assistance gathering documents, or need repeated follow-up before information can be obtained.

Things also change. New allegations are made, incidents occur, negotiations take unexpected turns, documents arrive late or a client changes their instructions. Preparing the same type of Court material might take 10 hours in one matter and 25 hours in another.

Barristers, expert reports and other external expenses can also add to the overall cost.

The biggest thing you can do to keep your legal costs down is to be organised, respond promptly, provide the information your lawyer asks for and use your lawyer's time wisely.

Most mistakes after separation are made when people are angry, frightened or trying to fix everything immediately. Unfortunately, some of those decisions can be difficult to undo later.

Some of the ones we see most often are:

• Moving out without thinking through the arrangements for the children. Particularly moving somewhere that makes it difficult for the children to regularly stay with you.
• Sending angry text messages. Write every message knowing that one day it may be read by a lawyer, report writer or Judge.
• Agreeing to a parenting arrangement you don't actually want because you think it is only temporary. Temporary arrangements have a habit of becoming permanent.
• Waiting too long when you're not seeing the children. Weeks can very quickly become months. Get legal advice and take action quickly.
• Reacting badly to allegations. Angry denials, threats and counter-allegations rarely help. Get advice and work out what evidence actually answers the allegation.
• Expecting things to work the same way they did before separation. They won't. The way you parented when you lived together, how you communicated and even how decisions were made all need to change. You now need to work out how to be a dad in a separated family, rather than trying to continue the way things worked when you were together.
• Not understanding what your children are going through. They may be dealing with two homes, different routines, missing one parent while they are with the other, or worrying about upsetting Mum or Dad. They won't always tell you when they're finding it hard. Give them some extra patience and don't assume that because they seem fine, they are finding the changes easy.
• Taking legal advice from friends, family or Facebook. What happened in somebody else's separation tells you very little about what will happen in yours.
• Waiting until everything has gone wrong before getting advice. Getting legal advice doesn't mean starting a Court case. Sometimes it helps you avoid one.

You don't need to do everything perfectly after separation. But before making a decision that could affect your children, your home or your finances for the next few years, be aware of what the consequences might be.

Keep it brief, polite and about the issue that actually needs to be dealt with.

Where possible, communicate about important parenting and financial matters in writing, whether by text, email or a parenting app. It reduces misunderstandings and gives both of you a record of what was said and agreed.

Do not use messages to continue arguments from the relationship. You don't need to have the last word. However, if an incorrect version of events or an allegation is put to you in writing, it can be important to respond to it. A simple “That is not how I recall what occurred” or “I don't agree with that account”, followed by a brief correction if necessary, is far better than a tirade of accusations or an argument over every detail.

Before you press send, read the message as though a Judge, lawyer or family report writer may one day read it. Because chances are, they will.

Keep the children out of communication between adults. Don't use them to pass messages, question them about the other parent or ask them to negotiate arrangements for you.

You don't have to like your ex or agree with them. The goal is to communicate well enough to deal with the children and the practical issues that still connect you.

Good records can become very important if there is later a disagreement about what happened, what was agreed or how much time you have spent with the children.

Save important texts or emails between you and your ex, particularly conversations about the children, requests to spend time with them, changes to arrangements, allegations and important financial matters.

Keep a simple record of when the children are with you, school and medical appointments you attend, activities you take them to and any occasions when agreed time with the children does not occur.

Also start getting your important financial documents together, including bank and credit card statements, mortgage and loan documents, tax records, superannuation and information about significant assets and debts. In most situations, both parties have ongoing disclosure obligations.

You don't need to document every conversation or minor disagreement. Keep records of the things that matter and make sure important arrangements and decisions are confirmed in writing.

False allegations can arise after separation, and sometimes the only people who know exactly what happened are you and your former partner. A few simple precautions can make an enormous difference.

Where possible, keep important communication in writing. Text, email or a parenting app creates a record of what was actually said and can avoid later arguments about who said what in a telephone call or face-to-face conversation.

Be particularly careful around changeovers. Emotions can be high, children are present and even a short argument can later become significant.

There is a reason McDonald's and similar public places are popular changeover locations. They are neutral, public, there are other people around and there is usually CCTV.

If there is already significant conflict or you are concerned an allegation may be made, think very carefully about agreeing to changeover taking place at your former partner's home. Be even more cautious about going inside the home, where you may later find yourself facing completely different accounts of what occurred with nobody else present.

The same applies at your home. You don't have to turn every interaction into a security operation, but if things have become seriously hostile, don't unnecessarily put yourself in situations where there are no witnesses and no independent record of what occurred.

And be careful with recording conversations. Don't assume that because your phone can record something, you are legally entitled to do it. In NSW there are restrictions on secretly recording private conversations.

Most importantly, don't create the evidence that will later be used against you.

Don't argue at changeover. Don't send the angry text. Don't turn up unannounced. Don't follow your ex to continue a conversation after they have walked away. If an interaction is becoming heated, end it.

You cannot prevent somebody from making an allegation.

You can make sensible choices that reduce the opportunities for allegations to arise and leave a much clearer record of what actually happened.

READ MORE: False Allegations in Family Court

My son engaged the firm in relation to his own family situation and as a grandparent I was involved in the process with him. Principal Glen Pitt & his assistant Kylie Ansett were extremely supportive & empathetic to my son Nathan's circumstances and the overall needs of our family.

They were both attentive & responded quickly to any requirements our family raised and in particular around urgency required over the Xmas/ new Year period. They also showed great patience and care as they guided our family through the legal process which we suddenly found ourselves in.

I would highly recommend their services should you find yourself in a similar Family Law court matter. - Tony

Extremely Satisfied with Full Circle. During a difficult time, they made it as seamless as possible. Thanks Guys, it was a pleasure to have you by my side. I would Highly Recommend Full Circle to any Father In all Parenting and Settlement proceedings. - Fergus

You will not encounter a more compassionate and empathetic legal team. I can't thank you enough for the advice and kindness you have shown me in what has been the most stressful time of my life. - H

I highly recommend Full Circle Legal. In the past I always felt like I wasn't heard or what I thought was best didn't matter. Since being represented by Glen, I felt not only heard but supported throughout. I could tell that Glen is passionate about his work and really cared about the best interest of my child. The outcome they helped me to get was better than I could have imagined. - Matthew

Glen and Kylie have been nothing but amazing and professional during the whole court process. They have been exceptionally helpful, supportive and have shown great communication and commitment throughout. They genuinely made a stressful process so much easier. - Jacob