Children and the Divorce Process

Children and the Divorce Process

The Family Law Act 1975

Consent Orders

Your Child’s Best Interest

Children and the Divorce Process

At Antwan Lawyers we understand that your first priority in the case of divorce and separation are the needs and interests of your children. We will provide you with advice in keeping with your best interests and primarily the interests of your children; we also want to maintain a commitment to the individual needs of your case and a continued sensitivity in this difficult time.

The following is a guide to help you understand the legal requirements and considerations made for children in a divorce proceeding.

The Family Law Act 1975

In 1995 amendments to the Family Law Act 1975 now place your child’s needs above all others involved. Parents are considered equally in regards to their rights and responsibilities to the children, but they are not considered before the best interests of the children. As a result, terms you may be familiar with like ‘custody’ and ‘guardianship’ are no longer terms employed by the court. Instead the Court considers the child’s needs in three categories:

*Residence ,which is where the child will live

*Contact, that is, who the child is to be in contact with and usually details, times regularity and place that contact is to take place, and

*Specific Issues. Specific issues encompass the day-to-day needs of the child, the long term responsibility for the child’s care and welfare and the continued an over all development of the child. In other words the Court will place no order that will detract from the child needs.

Specifically this last consideration may relate to the party responsible for transporting the child on a daily basis and in relation to contact with the other party, regards the child’s surname after the divorce, the provision of information pertaining to the child, like telephone numbers and addresses and also addresses any moves interstate or overseas.

It is the function of section 65E of the Family Law Act 1975 that in all matters concerning children, the best interests of the children are the most important and the Courts first priority.

Consent Orders

Divorce can be a huge emotional and physical strain on children, as much as on the parties involved in the divorce. If agreements can be reached outside of a Court proceeding the children and parents can avoid further stress. Reaching an agreement and applying for a Consent Order detailing all aspects concerning the children is usually very simple and does not require a Court appearance. You can still rely on your solicitor to help with negotiating and offering advice on the legalities of obtaining a Consent Order. If you have not already, read our section regarding Consent Orders and Reaching an Agreement through Negotiations.

[ILW1] In the absence of a Court Order, each parent has the same rights regarding children of the marriage. A Court order is the only ay to formalize and make certain agreements and arrangements. A Consent order issued by the Court is the only way that both parents are fully aware of the rule and obligation they have in relation to the children. There can also be action taken when one parent does not abide by the Court order, where there can be none if there is not a Court order.

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There can also be a breakdown of informal agreements when either parent has a new partner. Without a Consent Order this may result in parties ceasing to adhere to informal agreements which can be a further stress on both the children and all parties. It is natural that parents should have an emotional response to issues concerning their children; new partners can raise doubts and resentment in parties. It is in everyone’s best interest to obtain a Court order first to ensure all parties have a clear understanding to their obligations and responsibilities and that the agreements are binding.

Your Child’s Best Interest

Below is a list of considerations that must be made when determining the best interests for your children. The Court will take these issues into consideration as will you solicitor in negotiations. As you go through the process of divorce and determining parental responsibilities and making agreements with your spouse, consider these questions

What has the child expressed? What do they want and how relevant are these expressed factors to their wellbeing?
What will be the effects of a separation from one parent and subsequent friends and family of that parent?
What is the individual relationship of each parent with each of the children?
What is the capacity of each parent to provide for the child on all levels, including physically, financially, emotionally and intellectually? This includes protection for the child on a physical and psychological level.
What are the associated expenses of contact with the other parent? Would the difficulty associated with contact with the other parent be detrimental to the child and their relationship with either parent?
The court will also consider the following;

family violence
the age, and maturity of the child
relevant background and social factors
any other specific needs the court deems relevant

All considerations for the children’s welfare in a divorce will be considered as part of negotiations or Family Court proceedings. In cases where agreements can not be reached they will be referred to a Family Court proceeding. Please read our section Family Court Proceedings [ILW2] that outlines this process in more detail.

[ILW1]Suggest direct links to these sections of main article.

[ILW2] [ILW2]Suggest link to Family Court Proceedings. [ILW2]

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