What happens when we split up?

It’s best to try and work things out with your ex-partner without going to court if it’s safe and there’s no family violence. You can get help from family dispute resolution services – like mediation – to talk things through and make a plan.

But if you can’t agree, or if the situation is urgent or unsafe, the court can step in and make decisions for you.

After parents separate, you need to make lots of decisions about how you will take care of your kids together.

Talk to your ex-partner

If it’s safe, try to sort things out together first. The law says you should try to work things out with your ex before going to court, unless:

• it’s urgent
• there’s family violence, or
• one of you is very sick or lives far away.

Go to mediation

You can get help from a person trained to help families yarn and sort out problems. This is called mediation or family dispute resolution.

Why mediation is a good idea

• it’s quicker than going to court
• it costs less
• it’s usually less stressful, and
• you and your family get to make your own decisions about the kids.

Mediation can include parents, grandparents, aunties, uncles – anyone important in the kids’ lives.

Support for Aboriginal families

There are Aboriginal and Torres Strait Islander mediators who understand culture and community. They help families reach an agreement that works for everyone – and is best for the kids. See the More information section for who to contact.

If you and your ex can’t agree about the kids, the court will decide what’s best for them. The court makes a ‘parenting order’ that says:

• who the kids live with
• how much time they spend with each parent or family
• how parents share looking after the kids, and
• how parents talk to each other about the kids.

When the court makes decisions about kids, it looks at what will keep them safe, strong and connected. The court thinks about:

• Safety first: making sure kids and their carers are protected from harm, family violence, abuse or neglect. This includes looking at any past violence or court orders.
• What the kids think: the court listens to their views, depending on their age and understanding.
• What the kids need: including their emotional, mental, physical and cultural needs.
• Who can care for them: the court checks if each parent or carer can meet the kids’ needs.
• Family connections: if it’s safe, the court supports kids having relationships with parents, grandparents, aunties, uncles and other mob who are important.
• Anything else that matters: the court can look at other things that affect the child’s wellbeing.

The court must also make sure kids can stay connected to their mob, culture, country and language. This is part of their right to grow up strong in culture.

Most of the time, the court will say both parents can equally share the big decisions about their children’s lives.

This means both parents share the big decisions – like school, health, culture, religion, and anything that affects how kids spend time with each parent.

But if there’s violence or abuse, or other issues, the court might decide this isn’t safe.

A grandparent or other family member can also apply for a parenting order.

If the other parent has broken a court parenting order affecting your kids, you can either:

• if it’s safe, try to sort things out by going to counselling or mediation, or
• go to court and say your ex has broken the order.

If you or the kids are in danger – get help straight away.

• If there are safety worries – like family violence or harm – get urgent legal advice.
• If you or the kids are in immediate danger, call the police on Triple Zero (000).

There are also Aboriginal legal services and support lines that can help keep you and your family safe.

If your ex has taken the kids and won’t return them, you can ask the court for a recovery order. This is a special order that lets the police (state or federal) help find and bring your kids back to you.

Even if you already have a court order saying the kids live with you, you might still need a recovery order.

If you don’t have a parenting order yet, you’ll need to ask the court for:

• a parenting order (saying the kids live with or spend time with you), and
• a recovery order – you can ask for both at the same time.

The court takes this very seriously. If a parent doesn’t follow the order, the court might:

• make them make up lost time with the kids
• give them a fine, or
• in serious cases, send them to gaol.

Sometimes, the parent might have a good reason – like if they were worried about the child’s safety.

If the court order no longer works for the family, the court might look at changing it.

Yes – but there are rules.

If you want to formally change your child’s surname, you need to apply to the NSW Registry of Births, Deaths and Marriages. You’ll usually need:

• the other parent’s agreement, or
• a court order saying it’s okay.

If your child is 12 years or older, they must also agree to the name change.

What if the other parent doesn’t agree?

You can ask the court to:

• let you change the child’s name, or
• stop the other parent from using a different name.

Kids under 18 can’t make the final decision about where they live. The court decides where they will live and how much time they will spend with each parent. The court must listen to what the child wants and consider each child’s maturity and level of understanding. Older children’s opinions are usually given more weight, but the court makes the final decision.

Sometimes the court may ask for a special lawyer called an independent children’s lawyer to represent the kids’ interests. This lawyer may interview the kids without the parents being there, or contact schools and doctors. They may ask for a court expert to give advice if they think that will help the court decide who the kids should live with and spend time with.

Grandparents (or anyone who has and wants to continue their relationship with the kids) can ask the court for an order to spend time with them. Kids have a right to spend regular time with their parents and other important people, such as grandparents, unless there is a reason why this wouldn’t be in their best interests.

Our family dispute resolution service can help separated parents, grandparents and other people who are important to the lives of the kids. See the More information section for contact details.

If you’re thinking about moving to a new town or state with the kids, you may need to get permission from your ex or the court, especially if the move means the other parent won’t be able to see the kids as often.

If there are court orders about the kids

You need to check the orders first.

If the orders say the kids must spend time with the other parent (like every weekend), and you move far away (like from Sydney to the Gold Coast), you could be breaking the order.

You’ll need to change the order – either by agreeing with your ex or asking the court to change it.

If there are no court orders

You’re not breaking any orders by moving. But your ex can still ask the court to:

• stop you from moving, or
• make you bring the kids back if you’ve already left.

What does the court look at?

The court always decides based on what’s best for the kids. That includes:

• keeping kids safe
• helping them stay connected to both parents
• supporting their culture and community ties, especially for Aboriginal and Torres Strait Islander children.

When you first split up, you don’t need to do anything to register the separation and there are no documents to sign.

If you are legally married and want to formally end the marriage you must apply for a divorce.

You must be separated for at least 12 months before you can apply for a divorce.

You can apply for a divorce through the FCFCOA online service, called the Commonwealth Courts Portal.

For more help with using the portal:

• see our publication Divorce factsheet 4: Filing your divorce application online
• visit our Do your own divorce website, or
• see the More information section for where to get legal help to do a divorce application.

A divorce will only legally end your marriage, but it won’t sort out issues about your kids or how your property will be divided.

Many people start making plans about their children and family finances as soon as they separate.

Both you and your ex are allowed to live in your home after separation. Neither of you can be forced to leave just because the property is in the other person’s name, or on the rental agreement unless a court says so.

If you do move out, your share in the property won’t be affected. Any rights you have built up during the relationship will remain even if you leave the property. If there is family violence you should seek advice immediately.

You can start talking about property as soon as you split up. The same laws about property apply whether or not you were married or in a de facto relationship.

Property includes all things owned, by either one of you or both of you, including money, cars, furniture, property owned before marriage, gifts, inheritance, and redundancy payouts.

If you’ve split up, there are time limits for sorting out money and property:

• If you were married, you must start property or spousal maintenance cases within 12 months after your divorce is final.
• If you were in a de facto relationship (living together), you must start within 2 years after you separate.

Spousal maintenance is when one person gives regular money to help support their ex – for example, if one person can’t earn enough to support themselves.

Superannuation is split depending on a number of things, including the type of superannuation scheme you or your ex have. You should get advice from a lawyer if you or your ex have superannuation.

When couples split up, the court looks at what’s fair for both people. It doesn’t always split things 50/50 – it looks at your whole story.

The court thinks about:

• what each person brought into the relationship – like land, money or belongings
• how long you were together
• what each person gave to the relationship – including money, looking after kids, keeping the home, and caring for family, and
• what each person needs in the future – like:
  • who’s caring for the kids
  • age and health, and
  • whether someone can work or earn money.

Looking after kids and family is seen as just as important as earning money.

When it assesses these things, the court must consider the economic impact of any family violence, including coercive control and financial abuse.

After you split up, both parents need to work out how to pay for things like:

• food
• clothes
• housing
• school costs, and
• sports and other activities.

This money is called child support or child maintenance.

One parent might pay the other – even if the kids live part-time with both parents.

If the kids live with someone else (like a grandparent), child support might go to them.

Services Australia can help figure out how much child support should be paid. This is called a child support assessment.

Once the amount is set:

• parents can pay each other directly, or
• the parent who gets the money can ask Centrelink to collect it for them.

Parents can also make a written agreement that says:

• how much child support will be paid
• how often it will be paid, and
• how the payments will be made.

These agreements are serious, so it’s important to get legal advice before signing.

To get a child support assessment from Services Australia you must prove that your ex is the biological parent or has legally adopted the child. The proof that they need includes:

• the name of your ex on the child’s birth certificate showing that you were married to each other at the time of the child’s birth, or
• a statutory declaration from your ex stating that he is the father.

Why should I get proof?

If you don’t have a child support assessment Centrelink might pay you less family tax benefit. So it’s a good idea to talk to a lawyer about getting proof of parentage. You may need to go to court or get DNA testing done by an approved lab.

If you’re worried about your safety, a lawyer can help you apply for an exemption. This means Centrelink may still pay you the higher rate of Family Tax Benefit, even if you don’t apply for child support.

Legal Aid NSW has special child support lawyers that help with these sorts of problems. See the More information section for who to call.

Contact Services Australia to find out what you can do. It will depend on what happened, but if you lose your job you might pay less child support. Contact Services Australia on 131 272. It’s important to let them know early about changes to your income.

Even if you don’t live with the kids full time both parents must financially support them until they are at least 18 years old. Your ex’s new partner does not have a legal obligation to support your child.

Child support lasts until your kids are 18. If your kids will still be in high school when they turn 18, you can ask for it to be extended until the end of that school year. Sometimes child support keeps going after the child is 18 for educational expenses or if there is an ongoing disability, but only with a court order. You will need to get legal advice.

LawAccess NSW

LawAccess NSW is a free information service run by Legal Aid NSW. If you or any one in your mob are going to court, have a legal problem or a question, LawAccess NSW can help.

Start a web chat or call 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays).

Family Law Service for Aboriginal Communities (FamAC)

FamAC is an Aboriginal led service at Legal Aid NSW made up of lawyers, Aboriginal Field Officers and mental health caseworkers, who are dedicated to Aboriginal and Torres Strait Islander families and children in family law and care and protection matters.

Call (02) 9407 2941.

Legal Aid NSW Child Support Service

Free, independent confidential advice about child support issues.

Call (02) 9633 9916 (Sydney and metropolitan areas) or 1800 451 784 (outside Sydney).

Early Intervention Unit (EIU)

The EIU is a specialist service of Legal Aid NSW. They can help you resolve your family law issues early without the need to go to court.

Call 1800 551 589.

Legal Aid NSW Do your own divorce website

This is a free step-by-step interactive guide to help you apply for a divorce in Australia which includes ‘how to’ videos, checklists and links that will help apply for a divorce through the FCFCOA.

Visit the Do your own divorce website.

Law Society of NSW Solicitor Referral Service

Call (02) 9926 0300 for referral to private lawyers.

First Nations Women’s Legal Service Contact Line

Call 1800 639 784.

Wirringa Baiya Aboriginal Women’s Legal Centre

Call (02) 9569 3847 or 1800 686 587.

If you are in immediate danger call Triple Zero (000) for urgent assistance.

1800RESPECT

Call 1800RESPECT (1800 737 732) for help 24 hours a day, 7 days a week.

Legal Aid NSW Domestic Violence Unit

A dedicated statewide service of Legal Aid NSW bringing together specialist domestic violence lawyers, social workers and financial counsellors.

Call 1800 979 529.

Family Advocacy and Support Services (FASS)

The Family Advocacy and Support Service (FASS) is an integrated duty lawyer and social worker service for those affected by family violence.

Call for:

• family support on 1800 551 589
• women’s support on 1800 11 3277
• men’s support on 1300 00 3277.

Women’s Domestic Violence Court Advocacy Services (WDVCAS)

WDVCAS assist women and children experiencing domestic violence get legal protection from the court.

Call 1300 WDVCAS (1800 938 227).

Federal Circuit and Family Court of Australia (FCFCOA)

Call 1300 352 000 or visit the Federal Circuit and Family Court of Australia (FCFCOA) website.

Legal Aid NSW Family Dispute Resolution Service

Legal Aid’s mediation service for clients who have been granted legal aid.

Call (02) 9219 5118 or (02) 9219 5119.

Family Relationship Centres and Family Relationship Advice Line

Call 1800 050 321 or visit the Family Relationships Online website.

Relationships Australia Mediation Service

Call 1300 364 277.

Services Australia: Child Support

Call 131 272.

NSW Registry of Births, Deaths & Marriages

Call 13 77 88 (Service NSW).

Child Protection Helpline

Call 132 111.