How does a divorce work with a child?
When a marriage involving children under 18 years of age ends, the Family Law Act 1975 (Cth) (FLA) requires that the court be satisfied that appropriate arrangements have been made for the children’s care. These rules and guidelines are outlined in section 55A of the FLA. Even if the court is not satisfied, it may still allow the divorce to proceed if there are compelling circumstances. This requirement reflects the overarching principle that the welfare of children remains a central concern even when a marriage has irretrievably broken down. The court’s role is not to determine parenting disputes at this stage, but to ensure children are not left without consideration during the divorce process.
Ensuring Appropriate Arrangements For Children
If the court has doubts about the arrangements being made for the children, the court can adjourn the proceedings to obtain a report from a family consultant. The term “child of the marriage” includes any child treated as part of the family immediately before the separation, but does not include a child in the womb. This definition ensures that stepchildren or children from previous relationships are not overlooked simply because they are not biologically related to both parties.
The Family Law Act does not define “care, welfare, and development,” but section 60B emphasizes that children should receive proper parenting to help them achieve their full potential. This includes ensuring the children’s comfort, health, and moral, intellectual, and spiritual welfare.
The court considers whether the arrangements promote stability and continuity in the child’s life. Factors such as schooling, healthcare, emotional support, and meaningful relationships with both parents are often taken into account.
Circumstances Allowing Divorce Without Satisfactory Arrangements
The court has the discretion to decide on a case-by-case basis whether a divorce should proceed without satisfactory arrangements for the children. In the case of Opperman and Opperman (1978) FLC, the court indicated that it must balance the termination of a marriage with the protection of the children. The court should give more weight to the children’s welfare.
Several circumstances have been recognised by the court as sufficient to allow a divorce to proceed:
- The respondent’s whereabouts are unknown, and they have not paid child maintenance or been personally served. In such situations, delaying the divorce indefinitely may serve no practical purpose and may unfairly prejudice the applicant.
- The provision should not be used to frustrate a broken marriage. For example, in Murphy and Murphy (1977) FLC, the wife moved interstate with the child, and the husband, who was unemployed, could not pay maintenance. The court allowed the divorce to proceed despite the lack of proper arrangements for the child.
- The provision should not aid uncooperative or greedy spouses. Even if the arrangements are not entirely satisfactory, they may be the best possible under the circumstances.
Parenting Orders
Applications for parenting orders are separate from divorce applications and are not considered under section 55A. These orders are dealt with in Chapter 6 of the FLA.
Property Orders and Maintenance
A divorce order does not address other aspects of a marital breakdown, such as property division, child support, and maintenance. Applications for these matters are separate from the divorce application.
Given the intricacies of family law, and divorce involving children, it is highly advisable to seek professional legal advice. My Legal Crunch Lawyers can provide you with personalised legal advice, and help you understand your legal rights and obligations. Contact us today at +61 485 872 417, or via our appointment requests page, to have one of our trusted lawyers help you and your unique case.
