Australian family law stresses that parents should always try to reach an agreement before going through the courts. Under the law, the best interests of the children is the paramount consideration.
So in practice, as a separating couple, you'll likely take part in family dispute resolution run by a mediator. Only if you can't come to an agreement through mediation will you end up going to court. A court will consider the best living arrangements for the children (this may or may not be an equal split between both parents, it may well end up being split around weekends and school holidays and practicalities of the school term). This is assuming there's no family violence, which would change the situation.
The Family Law Act sets out important principles relating to children:
- Children have the right to have a meaningful relationship with and be cared for by both parents.
- Children have a right to spend time and communicate on a regular basis with both parents and other people who are significant to them.
- Parents jointly share duties and responsibilities regarding their children.
- Parents should agree about the future parenting of their children.
- Children have a right to enjoy their culture.
- The court must regard the best interests of the child as being the paramount consideration where the court is asked to make decisions about children.
Family lawyers can help you reach an agreement, but it will save you money if you can both agree on the parenting arrangements for your children after you separate - a parenting plan. Plus, it will be encouraging for your children to see you and your partner taking a mature approach and showing them that they are loved by both of you even though you're separating.
You can always get a family lawyer to formalise the parenting plan that you and your ex partner create. See this Family Law Courts page for information to help you to come to an agreement on parenting arrangements.
The Family Law Act makes it clear that each parent has parental responsibility for each of their children until aged 18. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.