Divorce and Child Custody

Under section 55A of the Family Law Act 1975, if there are children of the marriage under 18 years of age, a Divorce Order cannot take effect unless the Court has made a declaration 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.

A child, including an ex-nuptial child (ie, a child born outside of the marriage) of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them, is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.

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.

It is important to note that neither Parenting Orders nor a Parenting Plan need to be in place for the Court to be satisfied that proper arrangements have been made for the children. To learn more about how we can assist you in formalising and finalising arrangements for children by way of agreement or Court Orders, see our section on Child Custody.

Prime Lawyers can assist you with ensuring that your Application for Divorce addresses the above requirement by properly presenting information about the children and their care arrangements.

We have offices in Sydney, Chatswood, Parramatta, Sutherland and Wollongong.