living arrangements for children after parental separation is the most important.
If children of the marriage are under the age of 18, s 55A of the Family Law Act 1975 (Cth) requires the parties to make proper arrangements for the care, welfare and development of those children when seeking a divorce.
This is to ensure that, as far as possible, the children's interests are protected upon the termination of their parents' marriage. Section 55A(1)(b)(ii) provides that a divorce may still be granted if 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.
Practice varies between judges as to how willing they are to use s 55A as a means of ensuring that children are better off after divorce.
In the case of Marriage of Maunder (1999) FLC 92-871 the husband filed an application for divorce and the wife filed applications for orders for property settlement, spousal maintenance and child maintenance. On the same day that the wife filed a response challenging the divorce application, stating that she was concerned about the husband's divorce application being granted while she had applications on foot, the children were not being properly provided for, and the husband was no longer resident in Australia.
The divorce application came before Frederico J, who stated that it was “not customary for the Court … to hold parties to ransom over an application for dissolution of marriage whilst other issues are under debate”. He made a declaration under s 55A(1)(b)(ii) that he was satisfied that proper arrangements had been made for the care, welfare and development of the children. The wife appealed. The Full Court, in allowing the appeal, decided that it could not be satisfied that proper arrangements had been made for the children – the husband was outside the jurisdiction and not immediately amenable to any procedural orders of the court.
The court stated that s 55A places a positive obligation on the court to protect the interests of children of divorcing spouses. Where the court is not satisfied that proper arrangements have been made for the children, it must not grant a decree of divorce:
The provisions in s 55A are mandatory and express a firm policy not to allow parties to be divorced without giving appropriate consideration to the arrangements that have been made for the welfare of the children to the marriage.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.