Divorce With Children Australia: What Is Different About Your Application
Separating with children is hard enough without wondering how a divorce will affect them. The short answer is that a divorce does not decide where your children live or how they spend time with each parent. Divorce with children Australia-wide follows the same basic path as any other application, with one important addition: the court must be satisfied about the arrangements for your children before the divorce can take effect.
In short: if you have children under 18, the court must be satisfied that proper arrangements have been made for their care, welfare and development before your divorce takes effect. This is a check, not a parenting order. It does not decide where the children live or how time is shared.
This article explains what the court looks at, when you might be asked to attend a hearing by telephone, and how to prepare your application so it moves smoothly. It is general information only, so please read the note at the end.
How Having Children Changes a Divorce Application
The starting point is the same whether or not you have children: the marriage has broken down with no reasonable likelihood of getting back together, you have been separated for at least 12 months, and you or your spouse has a sufficient connection to Australia. Our guides on how to apply for divorce in Australia, the 12 month separation rule and the wider divorce application process explain those requirements, so we will not repeat them here.
What changes when there are children is a separate requirement in section 55A of the Family Law Act 1975 (Cth). A divorce order does not take effect unless the court has declared that it is satisfied of one of two things: that there are no children of the marriage under 18, or that the children under 18 are those identified in the order and that proper arrangements in all the circumstances have been made for their care, welfare and development. The Act also allows the court to let a divorce take effect in special circumstances even though it is not satisfied about the arrangements, but that is an exception and not something to plan around.
Who counts as a child of the marriage is wider than many people expect. Under the Act, a child can be a child of the marriage if both of you treated them as a child of your family at the relevant time, which is generally the time immediately before you separated or, if you separated more than once, the time immediately before you last separated before the application was made. That can include a stepchild, an adopted child, or a child who is not the biological child of either of you. A child who has already turned 18 does not count for this purpose.
Divorce With Children Australia: What Proper Arrangements Means
The court is not deciding whether your parenting arrangements are perfect, or which parent the children should spend more time with. It is checking that the children are being properly looked after. The Act does not say that those arrangements must already be recorded in a parenting plan or a court order, so an informal arrangement that is working can be described honestly in your application.
The court asks for practical detail. According to the Federal Circuit and Family Court of Australia, applicants must explain how the children spend time and communicate with each parent, if at all, their education, health and financial support, and the reasons those arrangements are in place. The application form asks for particulars such as where the children live, who cares for them if they are not yet at school, and their schooling, including grade and progress.
If the court doubts that the arrangements are proper in all the circumstances, the Act allows it to adjourn the proceedings until a report has been obtained from a family consultant. In practice, the more common problem is simply that the information provided is incomplete, in which case the court may adjourn the application so that you can provide more. Either way, the likely result is delay, which is why accurate and complete information at the start may help.
Does Divorce Decide Parenting Arrangements?
No. The court's declaration under section 55A is a check that the children are cared for. It is not a parenting order. As the court itself puts it, the granting of a divorce does not decide issues about finances, property, maintenance or parenting arrangements for your children.
Parenting arrangements are dealt with separately. Some parents agree a parenting plan and never involve the court. Others formalise their agreement through consent orders, which we explain in our guide to parenting consent orders. Where an agreement cannot be reached, a parent can apply for parenting orders, and in most cases a parent must first make a genuine effort to resolve the dispute through family dispute resolution, which is a mediation with an accredited practitioner, and file that practitioner's certificate with the application. There are exceptions, including where there are reasonable grounds to believe there has been family violence or child abuse, where the matter is urgent, and where the orders are made by consent. If you are unsure which pathway suits your situation, our article on when you need parenting orders instead of a parenting plan is a good next read, and if either of you is thinking about moving, see relocation and family law.
When You May Need to Attend a Hearing
Many divorce applications are decided without either party needing to attend. Having children does not by itself always mean you must attend, but it is one way a hearing can come about. According to the court's guidance at the time of writing, attendance is required only in limited situations: where the applicant indicated in the application that they wish to attend, where the respondent has asked to attend because there are children under 18, where the respondent opposes the divorce, or where the applicant is seeking substituted or dispensed service.
Divorce hearings are usually conducted by telephone before a registrar of the court, unless you are advised otherwise. If you are required to attend and do not, the application may be adjourned, which adds delay and can add cost. If the registrar has questions about the arrangements for the children, this is when they will be asked, so it helps to have the details in your application fresh in your mind.
If you are the sole applicant, you must also serve the application on your spouse in the way the court requires, and they have the opportunity to respond. If it is safe to do so, it can help to let your spouse know the application is coming.
If you or your children have experienced family violence, or you fear for your safety, tell us or a support service before you file. There are ways to approach service and the details in your application with safety in mind, and you do not have to give your spouse advance notice. If you are in immediate danger, call 000. 1800RESPECT (1800 737 732) offers confidential support.
Not sure whether a hearing will apply to you? Our fixed-fee Application for Divorce service includes support if you are required to attend. It covers the divorce application only, and parenting orders and property settlements are separate matters.
Preparing Your Divorce Application When Children Are Involved
Start by gathering the facts you will need to describe the children's arrangements:
Where each child lives and with whom, and how time is shared
The school and grade, and how each child is progressing
Any health needs
Who provides care outside school hours, and for children not yet at school
How financial support is provided
The reasons the arrangements are in place, because the court asks for that too
Accuracy matters more than presentation. The details form part of the application which is signed before a lawyer or Justice of the Peace, so it is a sworn document. If arrangements are informal, say so. If they are changing or in dispute, say that too and explain what is happening. An application that describes a messy reality honestly is less likely to run into difficulty than one that describes a tidy arrangement that does not match what the court later hears.
You will also need your marriage certificate, or if you were not married in Australia and you are having difficulty with obtaining your certificate, evidence of your attempts to obtain it, and further, if you were married overseas and the certificate is not in English, a translation. If you and your spouse apply together as joint applicants, you do not need to serve each other, which simplifies the process. The court filing fee at the time of writing is $1,170, or $390 if you hold an eligible concession card or can show financial hardship. Fees are adjusted from time to time, so check the court's website before you file.
Next Steps After Your Divorce Is Finalised
A divorce Order takes effect one month and one day after the divorce hearing, unless the court makes a special order changing that time. From that point you generally have 12 months to apply for financial or property orders, and if you miss that deadline you will need the court's permission to proceed, which is not guaranteed. Many people focus so heavily on the divorce itself that they overlook this deadline, so it is worth deciding early how you will resolve your property settlement. Our guide to how the property settlement process works is a good place to start, and our article on parenting arrangements after separation covers the children's side.
How KD & Co Lawyers Can Help
Describing the children's arrangements clearly and accurately in your application may help reduce the risk of delay. Our fixed-fee Application for Divorce service covers preparing and filing your application and guiding you through service, with support available if a court attendance is required. Because a hearing can be requested where children are involved, it is sensible to budget for the higher fee. The service starts from $1,500, or $1,800 where court attendance is required, plus the court filing fee and any process server costs, and we will tell you at the outset which fee is likely to apply. If you would like to talk it through first, you can send us an enquiry.
This article provides general information only and is not legal advice. Every family's circumstances are different, and the law and court procedures change. The information is current as at 29 September 2026. Please speak to a lawyer about your own situation before taking any step.
