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, welfare, and development. This is outlined in section 55A of the FLA. If the court is not satisfied with these arrangements, it may still allow the divorce to proceed if there are compelling circumstances.
Ensuring Appropriate Arrangements
If the court has doubts about the arrangements for the children, it 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.
The FLA 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 their comfort, health, and moral, intellectual, and spiritual welfare.
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.
- 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.
