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When couples are going through a separation or divorce, child custody quickly becomes an issue. As the mother and father of the child will not be living together, determining how much time the child spends with whom becomes an inevitable problem that former partners have to sort out between themselves or, have the court decide. A popular but very incorrect view that people have regarding child custody is that the mother has more rights than the father. While that may be true in some countries, in Australia’s family law, it is not.
Who has more custody rights in Australia’s family law?
Australia’s child custody laws are not biased towards the mother or the father; they are created around the welfare of the child or children. The Family Law Amendment Act 2006 changed the emphasis from the parents to the children, placing the focus instead on co-parenting and the interests of the child.
The term ‘shared parental responsibility’ is used referencing the fact that no parent is given preferential treatment as children should have a meaningful relationship with both parents, where appropriate.
Why do Australian family courts get to determine child custody and what is included?
In some cases, parents cannot come to a mutual agreement through mediation regarding the custody of the child. When this occurs, they go to Australia’s family courts to get a parenting order. A parenting order is a set of formal orders made by a court regarding the parenting arrangements for the child.
If the latter occurs, then the court will have to determine the following:
- Who the child will live with
- How much time the child will spend with each parent and other people
- The allocation of parental responsibility (e.g. day-to-day care, development of child’s religion etc.)
- How the child will communicate with a parent they do not live with/spend time with
How do Australian family courts determine child custody?
As mentioned previously, Australian family courts determine custody based on what is in the best interest of the child. The following facts are what they use to determine what is in a child’s best interest.
- The child’s entitlement to have a meaningful relationship with both parents; and
- The child’s entitlement to be protected from psychological, sexual, physical and emotional abuse or violence.
As you can see, the above bears no mention of the mother or father because custody is solely dependent on the child’s wellbeing. If either breaches the second point, the court will restrict their rights to the child.
When considering visitation, again, only the core of the court’s decisions is with the child’s best interests. Generally, the child’s best interests include spending equal time with each parent, however, the court may also consider the following factors. Please note that these factors do not favour the mother nor the father, but instead, directly affect the comfort, security and wellbeing of the child.
- Financial status
- Whether the parent can financially support and provide for the child.
- Residence
- The child may be attached to one parent’s neighbourhood, school and community.
- Moral character
- This refers to the nature of a parent's interaction with the child as well as their relationship with them. It should be loving, kind and respectful.
To further reject the inaccurate idea that mothers have more rights than fathers, family courts, may, in some cases, request the view of the child or children regarding their custody. However, it should be noted that this view, though requested, may not always be considered by the court, especially in cases where the safety of the child is in question.
To conclude, it is clear that Australia’s Family Courts do not, in any way, give preference or weight to a mother’s right over a father’s right to custody. In all cases, the child’s best interest is at the centre of the court’s decision.
We hope this helps you to understand how family courts in Australia make their decisions on child custody cases. If you have any other questions regarding child custody or family law or concerns about your specific case, feel free to contact Prominent Lawyers. We will offer you the best legal advice and guidance for your situation. Our lawyers are here to support you and get you the help you need.
*The contents in this article are solely intended to provide general information in summary and do not constitute legal advice. We recommend seeking the assistance of a legal professional to discuss any matters at hand.
