Divorce and Child Arrangements in Victoria: What the Court Expects

Divorce and Custody Are Separate Proceedings

One of the most common misconceptions in Australian family law is that your divorce determines your custody arrangement. It does not. Divorce under the Family Law Act 1975 requires at least 12 months and one day of separation and a court application; the divorce order becomes final one month and one day after it is made. It does not decide who the children live with, how parenting time is divided, or who makes major decisions about the child.

Parenting arrangements are resolved through a completely separate process — either by agreement (parenting plans or consent orders) or by court application for parenting orders. You can finalise your parenting arrangements before, during, or after your divorce.

What the Divorce Application Asks About Children

When you file for divorce through the Commonwealth Courts Portal, the application asks whether there are children of the marriage under 18. If there are, you must provide details of the arrangements made for their care, welfare, and development. This includes where the children live, the parenting time arrangements, and the financial support in place.

The court does not need to approve your parenting arrangements as part of the divorce application. It needs to be satisfied that proper arrangements have been made — or that the circumstances are such that the divorce should be granted despite arrangements not yet being finalised.

In practice, the court rarely refuses a divorce application because of concerns about children's arrangements. But if the information provided raises obvious concerns about the children's welfare, the court can direct the parties to attend a court hearing before granting the divorce.

Court Attendance for Sole Applications With Children

If you are filing for divorce as a sole applicant (without the other spouse joining the application) and there are children under 18, you must attend a court hearing. This is a procedural requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, not a full trial. The hearing is typically brief — often 5 to 15 minutes — and takes place at the FCFCOA registry where you filed (Melbourne, Dandenong, or a regional circuit location).

At the hearing, the judicial registrar will confirm that you have been separated for at least 12 months and one day, ask about the arrangements made for the children's care, and satisfy themselves that the children's needs are adequately addressed.

Joint applications (where both spouses file together) do not require court attendance, even if there are children. The application is processed on the papers.

The Timeline and How Custody Fits In

The standard divorce timeline runs as follows: you separate, you wait 12 months and one day, you file the divorce application (filing fee A$1,170, or A$390 with a concession), the court processes the application and schedules a hearing if needed (typically 2 to 4 months), the divorce order is granted, and the divorce becomes final exactly one month and one day after the order is made.

Parenting arrangements can be negotiated and formalised at any point in this timeline. Many parents establish their parenting arrangements during the 12-month separation period — long before the divorce application is filed. There is no requirement to wait for the divorce to be finalised before settling custody.

However, the divorce does trigger one important deadline: married couples have 12 months from the date the divorce order becomes final to file any property or financial settlement with the court. After that window closes, you need the court's leave (permission) to file — which is not guaranteed. This does not affect parenting arrangements, which have no post-divorce filing deadline.

What If We Have Not Agreed on Custody Yet?

You can still file for divorce even if parenting arrangements are unresolved. The court requires you to disclose what arrangements exist (even if they are informal or interim), but it does not require a finalised parenting plan or consent orders as a precondition.

If you are concerned about the children's arrangements, use the separation period to attend Family Dispute Resolution and work toward a parenting plan or consent orders. Having settled arrangements in place before the divorce hearing simplifies the process and demonstrates that the children's needs are being addressed.

The Victoria Child Custody & Parenting Plan Guide walks through the full parenting arrangement process — from drafting a plan through filing consent orders — so you can resolve custody independently of the divorce timeline.

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