Welfare of the Child in Matrimonial Disputes

This article discusses the welfare of the child in matrimonial disputes and the considerations taken into account in custody cases. It explores the options of arbitration and litigation and provides insights from relevant laws and court cases. The conclusion emphasizes the importance of determining the child's happiness and suggests arbitration as a time and cost-saving option.

Business Law

Table of Contents
Part A..................................................................................................................................... 3
Question Presented............................................................................................................3
Short Answer...................................................................................................................... 3
Statement of facts..................................................................................................................3
Discussion.......................................................................................................................... 3
Conclusion.......................................................................................................................... 5
Part B..................................................................................................................................... 5
Part C a.................................................................................................................................. 6
Part C b.................................................................................................................................. 6
Bibliography........................................................................................................................... 7

Part A
TO:
FROM:
RE:
DATE:
Question Presented
Is the welfare of the child to be taken into account as far as parental responsibility is
concerned as a result of divorce or judicial separation with reference to matrimonial
disputes?
Short Answer
Yes, it is to be taken into account the beneficial aspects of the child as far as the custody is
concerned with reference to separation of parents as a result of matrimonial disputes.
Statement of facts
Mrs. Ada Agarwal has instructed regarding the issues in her marriage as far as the judicial
separation three years ago is concerned. She is also facing difficulties with regard to the
accessing her child Daniel due to the document of separation signed between her and her
husband which implies that Daniel would be the sole responsibility of her husband. She
claims that she was compelled to sign such a document as a result of cultural issues. She
has also sought psychiatric help due to such chain of events. Her issues related to mental
health aggravated to such an extent that she had to seek treatment as per the provisions
enshrined and envisaged in the Mental Health Act of 2016 as far as the jurisdiction of the
Australian state of Queensland is concerned1. Under such an authority she was declared as
an inpatient. Daniel has visited Mrs. Ada Agarwal three times in a year since the separation.
However, she does not get any opportunity to see him at least once. She is even restricted
to make any phone calls as far as the conversation with Daniel is concerned. She is
contemplating to go to court with regard to litigation or arbitration as far as alternative dispute
resolution is concerned. She has been advised not to go through mediation. It is also
observed from the facts of the case that she has immense faith and belief over the firm as
far as the derivation of a comprehensive solution in a timely manner is concerned. As a
1 Mental Health Act 2016

result, it has been assured to her that her issues would be addressed at the earliest as far as
the removal and elimination of hassles are concerned with regard to her battle as far as the
custody of Daniel is concerned.
Discussion
Taking account of the scenario concerned, the most feasible option for Mrs. Ada Agarwal
would be arbitration as would save time and expenses on her part as far as the complexities
involved in litigation taking account of the family court procedures in question2. Division 4 of
the Family Court Act of 1975 implies that the Family Court of Australia may refer certain
disputes to arbitration3. Sub-section 1 of Section 13 E of the Family Court Act of 1975
implies that certain proceedings arising under Part VIII or Part VIIIAB of the Family Court Act
of 1975 may be referred by the court towards arbitration. According to Sub-section 2 of
Section 13 E of the Family Court Act of 1975, if an order has been passed by the court as
per Sub-section 1, the matter may be adjourned and additional orders may be made by the
court as far as the capitulation over the commencement of arbitration is concerned.
However, it is up to Mrs. Ada Agarwal to decide whether she should go for arbitration or
litigation as far as the proceeding with her case in a proper and appropriate manner is
concerned with regard to the derivation of a comprehensive solution since ultimately the
outcome of the case should be in her favour ultimately. Here, court implies the Family Court
of Australia as per Section 20 of the Family Court Act of 1975. As far as Section 13 G of the
Family Court Act of 1975 is concerned, the Family Court or the Federal Circuit Court may
take into account the substantial questions of law which are referred to by the arbitrator
concerned with reference to the facts of the case. Section 13 H of the Family Court Act of
1975 implies that an arbitral award made under Section 13 E can be subject to registration
as far as the discretion of the court is concerned. Section 13 J of the Family Court Act of
1975 states that registered awards are subject to review by the Family Court or the Federal
Circuit Court. As imbibed from Section 13 K of the Family Court Act of 1975, the court is
empowered to set aside any registered award if it is void, cannot be enforced, contravenes
the arbitral agreement or the arbitration clause in question or is not made in the interest of
fairness as per the actions of the arbitrator. If it is implied from the facts that Daniel would
receive an appropriate parenting from Mrs. Ada Agarwal, an excluded child order may be
passed by the court as per Sub-Section 1A of Section 26 B of the Family Court Act of 1975.
It is implied from Section 31 of the Family Court Act of 1975 that the Family Court of
2 Commercial Arbitration Act 2013
3 Family Court Act 1975

Australia has original jurisdiction over the case as far as the facts are concerned. Section 34
of the Family Court Act of 1975 enables the Family Court of Australia to issue writs in certain
matters in which it considers appropriate. Such writs as per the English common law imply
the orders passed by the court in a written form stating the performance of an act or
omission accordingly. A writ can be issued by the Family Court of Australia in the case as far
as the custody of Daniel to be claimed by Mrs. Ada Agarwal is concerned. Australia is under
the ambit of English common law. In the case of Chard v Young4, it has been held by the
Family Court of Australia that the welfare of the child is to be taken into account as far as the
issuing of parenting order under Sub-Section 1A of Section 26 B of the Family Court Act of
1975 is concerned. The court took account of Sections 60 B, 60 CA, 60 CC, 61 DA and 65
DAA of the Family Court Act of 1975 as far as the benefits of the child with regard to
parenting are concerned. As a result, it is to be inferred upon whether Daniel is happy with
his mother or father as far as the facts of the scenario are concerned. It would help in the
capitulation of the averment of Mrs. Ada Agarwal regarding the custody of Daniel in an
effective and efficient manner. In the case of Bradbury v Lander and Others5, it has been
held by the Family Court of Australia that the father would be solely held responsible as far
as the welfare of the child is concerned. But he would have to provide the details regarding
the care of the child before and after school hours along with the contact details concerning
the doctors and health professionals with regard to the maintenance and upkeep of the
physical and mental health of the child. The living arrangements were also capitulated upon
by the court as far as the spending of vacations of the child with both the parents is
concerned by the virtue of an executed agreement. The order of the court further implied
that the no parent would criticize each other in front of the child. As a far as the facts of the
case are concerned, the custody of Daniel should be granted to the parent who responsibly
acts in the interest of the child. It is also to be seen whether shared responsibility would be a
feasible option as far as the benefit of Daniel is concerned. In the case of Campbell v
Morgan6, it has been held by the Family Court of Australia that the parents would have a
shared responsibility as far as the welfare of the child is concerned. It would help in the
benefits of the child in the long run. The child would be living with his mother as decided by
the court.
4 Chard & Yong [2019] FamCA 26
5 Bradbury & Lander and Ors [2019] FamCA 21
6 Campbell & Morgan [2019] FamCA 19

Conclusion
Taking account of the facts of the given scenario along with the provisions enshrined and
envisaged in the Family Court Act of 1975 and the cases decided by the Family Court of
Australia recently, it is observed that the custody of Daniel should be granted to Mrs. Ada
Agarwal by the court of competent jurisdiction or the arbitral tribunal only if it is determined
and identified that Daniel would be happy with his mother. It is also imperative from the facts
of the case that since Mrs. Ada Agarwal wants to settle the case within a week, arbitration
would be the moist suitable option for her as far as the saving of expenses and time to a
huge level is concerned in comparison to litigation in courts. By the virtue of making an
application in court, the proceedings must be conducted through arbitration as far as timely
result in favour of Mrs. Ada Agarwal is concerned.
Part B
For a person with impaired capacity, the tribunal may appoint any person who could be an
administrator or a guardian as far as decision making in a substitute form is concerned. In
such an aspect, a person with an impaired capacity is a person who is who cannot make
decision on his or her own as far as legal proceedings are concerned. On the basis of the
principles enshrined and envisaged under the Family Court Act of 1975, the arbitral tribunal
in the case can appoint an administrator or a guardian to capitulate upon the averment of
Mrs. Ada Agarwal as she has been declared as inpatient with reference to the provisions
enshrined and envisaged under the Mental Health Act of 2016.
Part C a
It is extremely necessary for a lawyer to communicate in an effective and efficient manner as
far as the fostering of an amicable relationship with the client is concerned. The Australian
Solicitor Conduct Rules imply that ethics must be followed by a lawyer as far as conversation
with client and presenting a prayer before the court is concerned7. The written
communications by a lawyer imply the emails and postal letters to be made to client or fellow
colleagues in a lucid manner as far as the positive outcomes of the case are concerned.
The substantial matters must be incorporated in an incredible manner in such letters and
emails as far as the specific aspect to be mentioned and the appropriate messages to be
delivered are concerned. The oral communication involves the conferences to be held with
clients and fellow lawyers regarding the case as far as the undertaking of the appropriate
course of action is concerned. It is also inclusive of the presenting of the arguments before
7 Australian Solicitor Conduct Rules

the court in an effective and efficient manner as far as the obtaining of the order in the favour
of the client is concerned. It would also include the making of argument s regarding appeals
as to how the judge at the lower court of or judicial authority made a grievous error of law
with regard to the concluding upon a judgement thereby misreading the facts of the case.
Effective communication on part of a lawyer would play in important role with regard to
client’s defence.
Part C b
As far as the method related to Issue, Rule, Application and Conclusion is concerned, it is
essential to think creatively. The issue must be identified at the earliest taking account of the
facts of the case. The law with regard to the legislations and case laws which are relevant
would play in extremely important role in the defining of the rule as far as the capitulation
upon the case is concerned which involves in depth research along with brainstorming to a
huge level. It involves a lot of reasoning and understanding along with analyses. The
application of the law must be done in such a manner so as to ensure that the legal issues
raised as per the scenario must be resolved in a proper and appropriate manner so as to
make sure that the solution which is to be deduced must be comprehensive in nature as far
as the capitulation upon the scenario is concerned taking account of the facts and the law
through the relevant statutes and cases as per the understanding in a creative manner is
concerned. Finally, the conclusion must be provided in a proper and appropriate manner as
far as rolling up is concerned. The conclusion must be presented in such a manner so that it
summarizes the whole context in an incredible manner as far as guiding the reader in an
appropriate manner is concerned. It is to be made sure that nothing should be presented in
the conclusion in a newly manner as far as avoiding confusion is concerned.

Bibliography
Australian Solicitor Conduct Rules
Bradbury & Lander and Ors [2019] FamCA 21
Campbell & Morgan [2019] FamCA 19
Chard & Yong [2019] FamCA 26
Commercial Arbitration Act 2013
Family Court Act 1975
Mental Health Act 2016