Understanding Australian Child Custody Laws
The supposed differential treatment of fathers and mothers in Custody battles is a hotly debated topic. Historically, parents would often agree for the mother to retain custody. This is because the fathers were considered more likely to be employed and have a better overall earning potential. In addition, mothers were traditionally viewed as being more suitable for the role of the primary carer of children, especially if the children were young.
Research from the Australian Institute of Family Studies
However, the Australian Institute of Family Studies has recently found that approximately half of mothers would prefer to see increased paternal involvement in their child’s life. In the same study, a majority of fathers also expressed a preference for increased involvement. Interestingly, the fathers cite the following most common factors that prevent such involvement:
- work commitments;
- belief that the child’s mother would oppose more involvement; and
- physical distance/travel costs.
The Concept of Custody
The legal concept of custody was abolished in Australian family law in 1995. In fact, the law in this area makes it clear that there are no specific parents’ rights and does not make any distinction between fathers and mothers. The Court is instead governed by, and legally obliged to consider, the child’s rights and best interests above all else.
This was confirmed by the HCA in the 1979 case of Grofenow, where Judges agreed that an historical shift had occurred in the traditional family structure in Australia – debunking the myth that the fathers still receive the metaphorical “short end of the stick.”
The Family Law Act
The Family Law Act 1975 covers such diverse matters as divorce and separation, parenting arrangements, property settlement and financial maintenance of one party by the other.
With respect to parenting matters, the Act states that a “child has a right to be known and cared for by both parents”, without prioritising the father or mother’s rights. Unless there are allegations of domestic violence or abuse, the Court would adopt a view that it is in the child’s best interests to spend as much time as reasonably and practically possible with both parents.
How the Act Applies to Children
When considering parenting arrangements following separation, the Court has to determine who the child will live with and spend time with.
Both parents have a responsibility for the care of their children, including their financial support. Despite this, the law does not guarantee an equal-shared parenting arrangement in all matters. If the Court does not decide that an equal-shared-care regime is in the best interests of the child, the Court will consider allocating substantial or significant time to the non-resident parent. The exception is in a case where there is a history of domestic violence or abuse. In the latter case, the Court will prioritise the child’s safety and wellbeing and make appropriate parenting orders.
Further Considerations for Child Custody Rights for Fathers
In determining what’s in the best interests of a child, the Court will consider the wishes of the child, as well as the nature and history of the relationship the child has with each parent. There might be practical difficulties of long-distance parenting and specific emotional or intellectual needs to consider, as well. Communication between both parents and availability of either parent will also be taken into account.
The family law legislation does not enable the Court to take into consideration stereotypical gender roles. Rather, the Court’s decisions are strictly governed by the principle of the children’s best interests. If you have any questions with respect to parenting arrangements of your children, please, contact us today for advice or assistance.
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