Questions about where children will live, how to tell them about the changes, and how to meet your responsibilities as a parent can feel overwhelming.

This guide is designed to help parents in NSW navigate the process of separation with their children’s best interests at heart. We cover the practical steps, legal considerations, and strategies for supporting your children through this transition.

Telling Your Children About Separation

This conversation is often the one parents dread most. There is no perfect way to tell children that their family structure is changing, but thoughtful preparation can help.

When to have the conversation

Choose a time when you will not be rushed and when children do not have other commitments immediately after. Avoid telling them just before school, a birthday, or another significant event. The conversation should happen when the decision to separate is certain, not while you are still deciding.

Age-appropriate approaches

What you say and how you say it will depend on your children’s ages. Very young children need simple, concrete explanations: “Mummy and Daddy are not going to live together anymore, but we both love you very much and will always look after you.” Older children may need more detail and will likely have more questions. Teenagers may already sense that something is wrong and appreciate honesty about the situation.

What to say and what not to say

There are some key messages that help children feel secure:

• Both parents love them and that will not change
• The separation is not their fault
• They will continue to be looked after and spend time with both parents
• It is okay to feel sad, confused, or angry

Avoid blaming the other parent, sharing adult details about why the relationship ended, or making promises you cannot keep about the future.

Telling them together vs separately

Where possible, telling children together with your partner presents a united front and reassures them that both parents are working together for their benefit. However, this is not always possible or appropriate. If there has been conflict or safety concerns, it may be better to speak with children separately.

Signs children may be struggling

Children react to separation in different ways. Some become withdrawn, others act out. Changes in sleep patterns, appetite, school performance, or behaviour can all be signs that a child is struggling. Younger children may regress to earlier behaviours. If you notice these signs, consider seeking support from a child psychologist or school counsellor.

Court and government resources for children

The Federal Circuit and Family Court of Australia provides resources specifically designed to help children understand family separation. The Court’s Kids’ Corner includes age-appropriate information explaining what happens when families change, how the Court helps families, and what children might expect during the process. 

While our aim is always to help parents reach agreement without the need for litigation, these resources can be useful regardless of whether your matter proceeds to court. They are written in child-friendly language and may help you explain aspects of separation that children find confusing or worrying.

Immediate Living Arrangements for Children

Where will the children live during separation?

There is no automatic rule about where children live after separation. In the early stages, many families maintain stability by keeping children in the family home while parents work out longer-term arrangements. Others begin shared care arrangements immediately. The right approach depends on your children, their needs and your family’s circumstances.

What matters most during this time is providing children with stability and continuity, not achieving immediate certainty about the final outcome. Children generally cope better when their day-to-day routines remain consistent, even while parents are still working through the details of longer-term arrangements.

The “best interests” principle

When making any decisions about your children, whether informally between yourselves or through the court process, the guiding principle under Australian family law is the best interests of the child. This principle applies from the earliest stages of separation, not just when matters are formalised.

Under section 60CC of the Family Law Act 1975, the court must consider a range of matters when determining what is in a child’s best interests, including:

• what arrangements would promote the safety of the child and each person who cares for them, including safety from family violence, abuse and neglect
• any views expressed by the child
• the child’s developmental, psychological, emotional and cultural needs
• each parent’s capacity to provide for those needs
• the benefit to the child of being able to have a relationship with both parents and other significant people, where it is safe to do so
• any other matter relevant to the child’s particular circumstances

Even before any formal arrangements are made, keeping these principles in mind can help guide your decisions about where your children will live and how they will spend time with each parent.

Creating stability and routine

Children generally benefit from consistency during times of change. Where possible, maintain regular routines around meals, bedtime, and activities. If children will be spending time in two homes, try to keep basic rules and expectations consistent across both households.

Sharing time between two homes

Many separated families arrange for children to spend time with each parent. The specific arrangement will depend on factors including the children’s ages, their needs, school commitments, each parent’s work schedule, and the distance between homes. Common arrangements include week-about, weekends with one parent, or various other splits. It is important to realise there is no one-size-fits-all solution!

How the courts determine what is in the best interests of the children

The best interests of the child is the paramount consideration in all decisions about children following separation, whether those decisions are made by parents themselves, through mediation, or by a court. This principle applies equally to informal arrangements agreed between parents and to matters that proceed to litigation.

If parents cannot agree on arrangements and the matter goes to court, the court will apply this same principle when making its decision. The court considers all relevant matters, with particular attention to safety, the child’s views, each parent’s capacity to meet the child’s needs, and the benefit of the child maintaining relationships with both parents and other significant people, where it is safe to do so.

Parental Rights and Responsibilities

What parental responsibility means

Parental responsibility refers to the duties, powers and authority that parents have in relation to their children. Each parent has parental responsibility for a child who is under 18, unless a court order provides otherwise.

A key aspect of parental responsibility is making decisions about major long-term issues affecting the child. These include decisions about education, health, religious and cultural upbringing, the child’s name, and significant changes to living arrangements.

Decision-making about major long-term issues

Following changes to the Family Law Act that took effect in May 2024, the previous presumption of “equal shared parental responsibility” no longer exists. The law now focuses on how decisions about major long-term issues should be made, with arrangements tailored to each child’s circumstances.

Where it is safe to do so, parents who do not have court orders in place are encouraged to consult each other about major long-term issues and to have regard to the best interests of the child as the paramount consideration.

If parents cannot agree, or if court orders are required, the court may make orders for:

• joint decision-making about all major long-term issues
• joint decision-making about some issues and sole decision-making for others
• one parent to have sole decision-making responsibility for all major long-term issues

The court will decide what arrangement best promotes the child’s safety and wellbeing, rather than applying any presumption about what is likely to be appropriate.

Does one parent have more rights than the other?

Both parents have parental responsibility for their children unless a court order provides otherwise. Neither parent has automatic authority to make unilateral decisions about major long-term issues. If parents cannot agree, they may need to attend mediation or seek court orders.

Day-to-day decisions

Day-to-day decisions, such as what a child eats or wears, are usually made by whichever parent the child is with at the time. Parents are not required to consult each other about issues that are not major long-term issues.

What if parents cannot agree?

If you cannot agree on parenting arrangements, you are generally required to attempt family dispute resolution (mediation) before going to court. A family dispute resolution practitioner can help you work through disagreements and reach an agreement. If mediation is unsuccessful, you may apply to the court for parenting orders.

Can You Move Away with the Children?

Relocation laws in Australia

Moving to a new area with your children is one of the most contested issues in family law. Children have a right to know and spend time with both of their parents, where it is safe to do so. If a proposed move would significantly affect your child’s ability to maintain a meaningful relationship with the other parent, you generally need that parent’s agreement or a court order before relocating. You should also consider the impact of the proposed move on the children attending school, extracurricular activities and maintaining friendship groups, particularly in shared care arrangements or when the travel time is in excess of 30 to 60 minutes each way.

When you need permission vs when you do not

If there are no court orders in place and both parents agree, you can relocate with the children. If the other parent does not agree, or if there are existing court orders about where the children live or spend time, you will likely need court approval before moving.

Given the complexity of relocation matters, it is advisable to seek legal advice before making any decisions about moving, even if you believe the other parent will agree.

Interstate and overseas moves

Both interstate and international relocations can be particularly complex. Moving overseas requires careful consideration of international family law and may involve issues around the Hague Convention on child abduction. If you are considering an international relocation, seek legal advice early.

What courts consider in relocation cases

Courts will consider the best interests of the child, including the impact of the move on their relationship with the other parent, the reasons for the proposed relocation, the child’s connection to their current location, and any practical proposals to maintain the child’s relationship with the non-relocating parent.

Consequences of moving without permission

If you relocate with the children in breach of a court order, or without the other parent’s consent when consent is required, there can be serious consequences. The other parent can apply for a recovery order to have the children returned, and your actions may be held against you in any subsequent parenting proceedings.

Temporary vs Permanent Parenting Arrangements

Informal arrangements

In the early stages of separation, many families operate on informal arrangements. This can work well when both parents are communicating and cooperating. However, informal arrangements offer no legal protection if one parent decides to change things unilaterally, nor do they provide a fallback mechanism if parents cannot reach agreement on a particular issue.

Parenting plans

A parenting plan is a written agreement between parents about parenting arrangements. It must be signed and dated by both parents. While parenting plans are not legally enforceable, they provide a clear record of what was agreed and can be useful evidence if matters later go to court.

Consent orders

Consent orders are agreements that have been approved by a court. They are legally binding and enforceable. If one parent breaches a consent order, the other can apply to the court for enforcement. Consent orders provide the most certainty and protection for parenting arrangements.

When court orders are necessary

If parents cannot reach agreement, or if there are concerns about a child’s safety, court orders may be necessary. Before applying to the court, it is generally advisable to seek the assistance of a family lawyer or mediator, who can help you explore options for resolving the matter without litigation. If the matter does proceed to court, a court will make orders based on what it considers to be in the child’s best interests, after considering evidence from both parties.

Communication and Co-Parenting

Setting communication boundaries

Clear communication between parents is important, but it can be difficult when emotions are raw. Setting boundaries about how and when you communicate can help. Some parents find it easier to communicate in writing, through email, text or a parenting app, as this provides time to think before responding.

Parallel parenting vs cooperative co-parenting

Cooperative co-parenting, where both parents communicate frequently and make decisions together, is ideal and provides stability between the households with clear rules and expectations but is not always possible. Parallel parenting is an alternative where each parent makes decisions independently during their time with the children, with minimal direct communication between parents. This approach can reduce conflict when the relationship between parents is difficult.

Using apps and tools to reduce conflict

Various co-parenting apps are available that allow parents to share calendars, exchange messages, and track expenses related to children. These tools can help keep communication focused on the children and create a record of what has been discussed.

Never using children as messengers

Children should never be put in the middle of parental conflict. Avoid asking children to carry messages between parents, questioning them about what happens at the other parent’s house, or making negative comments about the other parent in front of them. This puts children in an impossible position and can cause lasting harm.

Red Flags and Urgent Situations

Family violence concerns

If there are concerns about family violence, the safety of you and your children must come first. The family law system has processes to deal with safety concerns, including the ability to obtain court orders without the other party being notified in urgent situations.

Support is available 24 hours a day. You can contact 1800RESPECT on 1800 737 732 or the NSW Domestic Violence Line on 1800 656 463. Legal advice is also available to help you navigate this safely.

Child safety issues

If you have concerns about a child’s safety when in the care of the other parent, document your concerns and seek legal advice promptly. Depending on the nature of the concern, it may be appropriate to prevent the children from spending time with the other parent, involve child protection services or apply to the court for urgent orders.

Recovery orders

If a parent does not return children as agreed, or takes children without permission, the other parent can apply for a recovery order. This is a court order requiring the return of the children and, if necessary, authorising police or other officers to recover the children.

When to seek urgent legal intervention

Seek urgent legal advice if:

• You are concerned about your child’s safety
• Your child has not been returned as agreed
• You believe the other parent is planning to relocate without permission
• There has been family violence

Getting the Right Support

Navigating separation with children involves both legal and emotional challenges. You do not have to face this alone. Different professionals can help with different aspects.

Family lawyer for legal advice

A family lawyer can explain your rights, help you understand what arrangements are realistic, prepare legal documents, and represent you in court if necessary. Getting legal advice early can help you avoid mistakes and understand the likely outcomes.

Child psychologist or counsellor

If your children are struggling with the separation, a child psychologist or counsellor can provide support. They can also help you understand how to talk to your children and support them through the transition.

Family dispute resolution

Family dispute resolution practitioners are trained mediators who help separated parents reach agreements about children. Mediation is generally required before you can apply to court for parenting orders, and many families resolve their matters through this process without needing to go to court.

Putting Your Children First

Separation is difficult for everyone, but with the right approach, children can continue to thrive. Keeping their wellbeing at the centre of your decisions, maintaining stability where possible, and getting appropriate support can make a real difference.

Our family law team understands the emotional complexity of parenting through separation. You do not have to navigate this alone. We provide compassionate, practical advice to help you through this process with your children’s best interests in mind.

Book a confidential consultation to discuss parenting arrangements during your separation.