Children and Divorce


A divorce under the Family Law Act simply means that two parties who were married are no longer married. The divorce process does not decide issues about property division or what the parenting arrangements for the children of the marriage are to be.

However, if there are children of the marriage who are under 18 (which can include an ex-nuptial child of either spouse, a child adopted by either of them or a child who is not a child of either of them), the party making the divorce application (the Applicant) is required to attend the divorce hearing. The Respondent (other party) may also attend if they wish but there is no obligation for them to do so. If the application for divorce is a joint application (that is, both parties have signed the divorce application) there is no need for either party to attend the divorce hearing.

Parenting arrangements

The reason that you need to attend if there is that section 55A of the Family Law Act states that if there are children of the marriage who are under 18, the court must be satisfied that “proper arrangements in all the circumstances have been made for the care, welfare and development of those children” or “there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.”

The divorce application includes sections where a summary of the parenting arrangements, including the child’s education, financial support and health, can be given so that the Court will know the arrangements for the care, welfare and development of those children. This section of the application must be completed whether it is a sole or joint application for divorce. In the case of a joint application, the parties must come up with an explanation of the parenting arrangements that both are happy with.

Section 55A(2) goes on to state that “Where…the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.” This is, however, uncommon and in most cases, if there is concern about parenting matters, there are already proceedings for parenting Orders before the Court in addition to the divorce proceedings.

What is in the children’s best interests?

When considering what arrangements are appropriate for the children, the parties should consider what is in the children’s best interests and whether any proposed arrangements are reasonably practical. For example, if one parent lives two hours away from the other parent, it is not reasonably practical for a parent to spend time with the children for two hours after school on a Wednesday. When considering arrangements that are in best interests of the children, the parties should consider the ages and day to day routines of the children, the distance between the parties’ residences and the nature of the relationship between the children (if siblings are involved) and their parents, among other factors. If the parties are able to agree on the arrangements they can enter into a Parenting Plan, or if they require an enforceable agreement, into Consent Orders. Consent Orders are final and are sealed by a Registrar of the Court.

Family dispute resolution

If parties are unable to agree on these arrangements they must attend family dispute resolution (FDR) where they will discuss the arrangements for the children with the assistance of a family dispute resolution practitioner. FDR can be arranged via relationships centres and are readily accessible.

If the parties reach an agreement at FDR, a Parenting Plan can be prepared. A Parenting Plan sets out the specific arrangements for the children, for example:

  • The parties’ have equal shared parental responsibility for the children, JOHN BROWN born 1 March 2000 and NATHAN BROWN born on 6 June 2004.
  • The children live with the father;
  • The children spend time with the mother in each alternate week from 3.30pm on Friday to 8.00am on Monday.

A Parenting Plan cannot be enforced by the Court if one party elects not to comply with the plan, however it provides a clear indication to the Court of the agreed parenting arrangements for the children. However, as mentioned, the parties can elect to enter into Consent Orders, which are enforceable.

If an agreement cannot be reached at FDR, the family dispute resolution practitioner will issue a Section 60I Certificate and provide a copy to each of the parties. The certificate will enable the parties, or either of them, to make an Application to the Family Court or Federal Circuit Court for parenting Orders. Once the party files their Application and supporting Affidavit, along with a copy of their Section 60I certificate, a Court Hearing will be allocated to their matter. A Section 60I Certificate is not required in urgent circumstances.

Once the parties have been separated for 12 months, they can apply to the Court for a Divorce Order. The party filing the Application for Divorce will be required to set out the current parenting arrangements for the children, to satisfy the Court that there are appropriate arrangements in place. The Court does not require final orders or a parenting plan when satisfying themselves that there are appropriate arrangements are in place. The information contained in the Application or at Court is generally satisfactory.

If you would like to discuss your parenting matter or divorce further please contact us for a no obligation appointment.

Child support

Child Support is the financial support provided by parents to support their children following the break down of a marriage or de facto relationship. Your obligation to pay child support starts as soon as you separate from your spouse/partner and continues at least until your children reach 18 years of age.

Parents are required to pay child support whether or not they are divorced from the other parent. Similarly, your child support obligations do not cease when either you or the other parent enters into a new relationship or re-marry.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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