Divorce and separation are among the most emotionally and financially challenging experiences a person can face. In Australia, the Family Law Act 1975 (Cth) governs how the Family Court and Federal Circuit Court deal with the two issues that cause the most anxiety for separating couples: the future care of children and the financial support one spouse may owe the other after separation. Understanding the principles behind child custody (now called “parenting arrangements”) and spousal maintenance can dramatically reduce uncertainty and help you make informed decisions.
Part 1: Child Custody in Australia – It’s Not About “Winning” the Children
Since the 2006 amendments to the Family Law Act, the language of “custody” and “access” has been deliberately replaced with concepts such as “parental responsibility” and “lives with / spends time with” arrangements. The law no longer awards children to one parent as a prize. Instead, the court’s paramount consideration is always the best interests of the child.
Key Principles the Court Applies
- The benefit to the child of having a meaningful relationship with both parents This is one of the two primary considerations. The court starts with a presumption that it is usually in the child’s best interests to maintain a significant relationship with both mother and father, unless there are safety concerns.
- The need to protect the child from physical or psychological harm If there are credible allegations of family violence, substance abuse, or child abuse, this consideration overrides the “meaningful relationship” principle.
- Presumption of equal shared parental responsibility Unless rebutted (usually because of family violence or other serious concerns), the court presumes that parents will jointly make major long-term decisions about their children (education, health, religion, name changes, etc.). Note: this is NOT a presumption of equal time.
- The “equal time” or “substantial and significant time” pathway Only if equal shared parental responsibility is ordered does the court then consider whether equal time (or substantial and significant time) is both in the child’s best interests and reasonably practicable. Geography, work schedules, and the child’s own wishes (depending on age and maturity) heavily influence this outcome.
Common Parenting Arrangements
- 50/50 (week-about or 2-2-3 rotations) – increasingly common when parents live close to each other and the child’s school.
- 60/40 or 70/30 arrangements – still the most frequent outcome.
- Primary care with alternate weekends and half school holidays – typical when one parent has historically been the main caregiver or when distance makes equal time impossible.
When You Absolutely Need a Child Custody Lawyer
While many parents successfully negotiate parenting plans through mediation or direct discussion, a skilled Child custody lawyer becomes essential in the following situations:
- Allegations of family violence or child abuse (including emotional abuse or coercive control)
- One parent wishes to relocate interstate or overseas with the children
- Mental health or substance abuse issues that affect parenting capacity
- A child over 12 (sometimes younger) expressing a strong wish to live predominantly with one parent
- Complex financial structures (trusts, companies, family businesses) that may influence what the court perceives as “reasonably practicable”
Experienced child custody lawyers in Sydney, Melbourne, Brisbane and throughout Australia will usually recommend attempting a negotiated outcome first (because court is expensive and unpredictable), but they are ready to litigate urgently if a child is at risk or if one party is being unreasonable.
Part 2: Spousal Maintenance – Financial Support After Separation
Unlike child support, which is calculated by Services Australia according to a strict formula, Spousal maintenance is a discretionary payment from one former spouse (or de facto partner) to the other when the recipient cannot adequately support themselves and the payer has the capacity to pay.
Who Can Claim Spousal Maintenance?
You may be eligible if, because of one or more of the following factors, you cannot adequately support yourself:
- Care of a child of the relationship under 18 (or over 18 with a disability)
- Age or physical/mental incapacity for appropriate gainful employment
- Any other adequate reason (this is deliberately broad)
How Long Does Spousal Maintenance Last?
Maintenance is almost always temporary and rehabilitative in nature. The court wants the recipient to become self-sufficient as soon as practicable. Common durations:
- 1–3 years after a long marriage while the lower-earning spouse retrains or re-enters the workforce
- Until the youngest child starts full-time school
- Rarely indefinite (only in cases of severe disability or very late-life separation)
How Is the Amount Calculated?
There is no formula. The court undertakes a two-stage test:
- Need: Does the applicant have a financial need they cannot meet from their own income or assets?
- Capacity: After meeting their own reasonable expenses, can the payer afford to contribute?
Weekly or monthly amounts typically range from a few hundred dollars to several thousand in high-income cases. Lump-sum (capitalised) maintenance is also possible, especially to achieve a clean break.
Urgent Spousal Maintenance
If you have been financially dependent during the marriage and have no income or savings after separation, you can apply for urgent (interim) spousal maintenance within days or weeks. Courts move surprisingly quickly on these applications because shelter and food are immediate needs.
The Relationship Between Property Settlement and Spousal Maintenance
Australian courts treat property settlement and spousal maintenance as separate but related issues. A large property settlement can reduce or eliminate a maintenance claim (“why pay ongoing support if you just received $1.5 million?”). Conversely, a very unequal property split in favour of the homemaker parent may reduce the need for ongoing maintenance.
The Overlap: How Child Custody and Spousal Maintenance Interact
The amount of time a child spends with each parent directly affects both issues:
- The primary carer almost always has lower earning capacity in the short-to-medium term → stronger spousal maintenance claim.
- The non-resident parent usually pays child support (and sometimes a portion of private school fees or medical extras) on top of any spousal maintenance.
- If care is truly 50/50, spousal maintenance claims are much harder to establish unless there is a dramatic income disparity.
Experienced family lawyers constantly negotiate these two issues together because concessions on parenting time are often traded for financial outcomes, and vice versa.
Recent Trends and Case Law (2023–2025)
- Increased recognition of coercive and controlling behaviour as family violence (see the new s 4AB definition introduced in 2023).
- More willingness by judges to order equal time when both parents are genuinely involved and live within a reasonable distance.
- Growing acceptance of “capitalised” spousal maintenance to achieve finality, especially when the payer wants to remortgage or retire.
- Tighter scrutiny of high-income earners who attempt to minimise their income through trusts or companies.
Final Thoughts: Get Specialist Advice Early
The combination of parenting arrangements and financial support after separation is rarely simple. What seems “fair” to one spouse is often seen as manifestly unjust by the other. Early, realistic advice from a specialist child custody lawyer who also understands spousal maintenance can save tens (sometimes hundreds) of thousands of dollars and, more importantly, preserve your relationship with your children.
Most reputable family law firms offer an initial consultation at a fixed fee or even free in some cases. Taking that first step sooner rather than later almost always produces a better long-term outcome for you and your children.
If you are facing separation in Sydney, Melbourne, Brisbane, Perth, Adelaide or anywhere in Australia, reach out to an accredited family law specialist today. The law favours resolution over litigation, but when agreement cannot be reached, you need someone in your corner who knows both the emotional and financial battlefield intimately.
