Got a question? Ask Lawmail

Send your questions to Lawmail

Can't find the info you are looking for?Got a problem you can’t solve?

If you're under 25, or an adult asking on behalf of a person under 18, you can send your questions to Lawmail and we will email an answer to you in under 10 days. Urgent matters are dealt with more quickly.

Go to Lawmail. It’s free and confidential.

All donations over $2 are tax deductible.

Who am I going to live with if my parents are divorced/separated?



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


Even if your parents are separated or divorced, both still have the same responsibility to look after you until you turn 18 as they had before they got divorced.     However, if your parents ask the court to make a decision about your care after they split up, a court may make orders that change the way that these responsibilities are be shared between your parents.   

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.   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.

Your parents will have to make decisions about:

  • where you will live
  • who you will live with
  • how much time you will spend with each parent
  • how much time you’ll 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 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 totally 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 friend, or your school counsellor about how you’re feeling.

If you’re not sure who to talk to you can also talk to the Kids Helpline. They provide free and confidential counselling to young people. You can call them anytime on 1800 55 1800, or chat to them online at http://www.kidshelp.com.au/teens/get-help/web-counselling/.  


Who will decide where you live?


Your parents should try to agree on how you will be looked after. 

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 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.

If your parents are going to agree on who you will live with, then it is important to try and explain how you feel.  You may 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: http://www.kidshelp.com.au/teens/get-info/hot-topics/talking-with-your-parents.php

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, mature teenager who is capable of looking after yourself, 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.

What happens if you go to court?

Parents try to agree

In most cases, your parents will first go to meetings with people who will try to help them to agree on where you’ll live.  This is called “family dispute resolution”.   You can ask to go to these meetings, but you may not always be able to. 
 
If there has been family violence, your parents might not do this.  

If your parents can’t work things out in family dispute resolution, your parents may ask a court to decide the case.

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.  


What sorts of things can the Court decide?

The Court can make a lot of decisions about your wellbeing. These decisions are called parenting orders.

These orders might include who you live with, where you live, how much time you spend with each parent and how much time you communicate (e.g. speaking on the telephone or skyping) with a parent you do not live with. 

The Court might also decide whether one or both of your parents will be responsible for making certain big decisions about your life, such as where you go to school, or if you need to go to hospital. 


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 it would be good for you to spend equal time with both parents but this won’t be practical so the judge won’t make orders for equal time.  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 have a lawyer?

Sometimes.  

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 will 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.

Check out this video for an explanation of what the Independent Children’s Lawyer does: https://www.youtube.com/watch?v=llt2YGNfR8s

Will I have to see a psychologist?


Sometimes.

Sometimes the court needs a report from an expert to find out more information about you and your family so that the judge can make a decision in your best interests.  You may go to speak with a psychologist, or someone called a family consultant.
 
A family consultant is someone who talks to you and your parents about you and your family and what it has been like since your parents split up. You may speak to them alone or with someone else, such as a parent or your siblings.

A family consultant is there to:

•    answer your questions;
•    listen to your views and ideas; and
•    tell the judge what you think.

It is up to you what you tell or don’t tell and you don’t need to say anything if you don’t want to. You do not need to choose between your mum and dad.  If you are worried about saying things that might upset your parents, explain this to the family consultant first and they can work out how to tell your parents. The family consultant will try to help your parents agree on where you will live.   

The family consultant will write a report for the judge, including about what you think to help them decide what is best for you.  

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.  You parents will be responsible for making sure they follow the orders the court has made.

For more information on the law about this check out http://www.bestforkids.org.au/



This page was last updated on 25 June 2015.