De Facto Separation with Children: Information for South Australian Parents
When a de facto couple with children separate, they often face important legal decisions about child custody, parenting arrangements, child support, and property settlement.
Parental Responsibility & Child Custody
When a de facto couple with children separate, both parents retain equal shared parental responsibility.
This means that both parents participate in making significant decisions for the child, including:
- education,
- healthcare, and
- religious upbringing.
This does not automatically mean equal time with each parent.
In Australia, the child’s best interests are the primary consideration under the Family Law Act 1975 (Cth).
When determining what is in the child’s best interest, a Court will often have regard to several factors, including:
- The child’s relationship with each parent and other significant people, such as grandparents.
- The child’s wishes, depending on their age and maturity.
- The capacity of each parent to provide for the child’s needs.
- Any history of family violence or abuse.
Parenting Arrangements
Parents are encouraged to agree on parenting arrangements amicably, prioritising the child’s needs and stability, which can be achieved through:
Informal Agreements
These are verbal or written agreements between parents but are not legally binding.
Parenting Plans
A written agreement that outlines parenting arrangements.
While not legally enforceable, parenting plans demonstrate the parents’ intentions and can be useful in Court proceedings.
Consent Orders
If parents agree on arrangements, they can apply to the Family Court for Consent Orders, making the agreement legally binding.
If parents cannot agree, either party can apply for Parenting Orders through the Family Court.
The Court will then determine the arrangements based on the child’s best interests.
Child Support Responsibilities
Both parents are financially responsible for supporting their child after separation.
In Australia, child support is generally calculated by the Department of Human Services (DHS), considering:
- The income of both parents.
- The time the child spends with each parent.
- The needs and expenses associated with the child.
Parents can also agree on private child support arrangements, but it is advisable to formalise these agreements to avoid disputes.
Grandparents & Significant Others’ Rights
Under the Family Law Act 1975 (Cth), grandparents and other significant people in a child’s life have the right to apply for Parenting Orders to maintain contact with the child if it is in the child’s best interests.
The Court will consider:
- the child’s relationship with these individuals,
- their involvement in the child’s life, and
- the benefit of maintaining these connections.
This provision ensures that a child’s support network is preserved, even after parental separation.
Dispute Resolution Options
If parents cannot agree on child custody or parenting arrangements, they must attempt Family Dispute Resolution (‘FDR’) before applying to the Family Court for Parenting Orders.
FDR involves meeting with an accredited mediator to negotiate an agreement.
A certificate from the FDR practitioner is required before going to Court, except in cases involving family violence, child abuse, or urgent matters.
If FDR is unsuccessful, parents can proceed to Court, where a judge will determine the arrangements based on the child’s best interests.
Changing or Enforcing Parenting Orders
Circumstances can change, and existing Parenting Orders may no longer be suitable.
Either parent can apply to vary the orders if they can show a significant change in circumstances, such as:
- Changes in work schedules,
- The child’s evolving needs, or
- Relocation for education or employment opportunities.
If one parent breaches the orders, the other can seek enforcement through the Family Court.
The Court can impose penalties, including fines or community service, to ensure compliance.
Parental Alienation & Legal Consequences
Parental alienation occurs when one parent influences the child to reject or distance themselves from the other parent without justification.
The Family Court views this behaviour seriously as it can harm the child’s emotional well-being.
If the Court finds evidence of parental alienation, it may:
- Change the parenting arrangements to protect the child’s relationship with the alienated parent,
- Order counselling or family therapy, or
- Impose penalties on the alienating parent.
These measures aim to maintain the child’s meaningful relationship with both parents, provided it is in the child’s best interests.
Property Settlement & Financial Arrangements
After a de facto separation, property and financial resources need to be divided.
In South Australia, de facto couples have similar rights to married couples under the Family Law Act 1975 (Cth).
Property includes assets such as:
- real estate,
- savings,
- superannuation, and
- personal belongings.
An application for property settlement must be made within two years of separation.
If this timeframe is missed, the applicant must seek permission from the Court to proceed.
(If you’re unsure about de facto separation entitlements, read our guide on De Facto Break Up Entitlements for more information).
Contact Us
For more information, contact Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.
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Related Blog – Can a Separated Parent Take a Child Out of State?
