It is a curiosity of the 1974 introduction of the Family Law Act that the legal process of obtaining a divorce contains provisions in relation to the children of the marriage.

The Family Law Act is an extensive piece of Legislation dealing with many aspects of separation including property, arrangements for children, spousal support and the like. It also contains provisions regarding divorce.

One of the provisions within the divorce section is dealing with children under 18. In brief, the Act provides that the Court must be satisfied that there are proper arrangements for the children prior to making an Order for divorce. There are 2 threads to this being:-

  1. How does the Court establish there are proper arrangements; and
  2. Why, in what is a legal process of finalising a marriage, does the Court even need to know how the children’s issues are being managed.

Establishing proper arrangements

In broad terms, there is no legal requirement to involve the Court in children’s arrangements upon separation. Where private arrangements are made for the care of children upon separation of a married or de facto couple the parties are entitled to manage those children’s arrangements without further interference. However, where a married couple seeks to divorce the Court then seeks to, on the face of it, take an interest in the children’s wellbeing. If you examine a Divorce Application there is a section dealing with children which asks a series of questions as to how they spend their time between the respective parents, their financial support, their health and education. But when you drill down what is actually required by the Court, in reality, there is a disconnect between what is sought and the information that is usually provided. When an Application is filed usually it is stated in very brief terms about the children’s arrangement. As an example:

One would wonder what a Registrar of the Court who undertakes the divorce hearing can really establish from this scant information. Recently (and almost out of the blue) we received a request for further information from the Registrar as to how the child is progressing at school (they were in Grade 5). I am not sure beyond indicating adequately, poorly or very well how much further information the Registrar truly seeks – in my view not too much. This is because unlike in a matter before the Court in relation to children’s living arrangements the Court may indeed scrutinise the children’s progress at school in much more detail to establish whether one parent has been providing adequate assistance in this regard.

What will the Court want to know

As noted above there are 4 areas of inquiry in a divorce application. In practical terms provided there is a very simple statement in relation to the children’s wellbeing, the divorce will proceed without further inquiry. You would accordingly wonder why to bother at all and in reality there should be a separation between the legal process of divorce and any controversy in relation to the ongoing care and wellbeing of the children of the relationship. It is unlikely that we will see any changes in this regard in the near future but in the writer’s view, it is a historical oddity which will need to be amended at some stage in the future.