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Myths about child custody in Australia

By July 26, 2019February 23rd, 2024No Comments

Family law is an area ripe for confusion as it has been routinely politicised in the media in Australia, leading to widespread misconceptions about how parenting arrangements are worked out in the courts. Here, we debunk some of the most common myths surrounding children’s care.

  • Parents have a ‘right’ to see their kids

This is one of the biggest misconceptions. While parents have obligations towards their kids, they do not have any ‘rights’ in relation to their children as such, such as a right to have time with the children. Australian family law is all about the rights of the children. One of these rights is the right to a meaningful relationship with each parent, and this imposes an obligation on each parent to facilitate their child’s relationship with the other parent, provided there are no safety issues.

  • “Our divorce application will deal with the kids’ custody”

No. Your divorce application only relates to the divorce itself and does not formalise or make binding any situation relating to the children. This needs to be done separately via an informal parenting plan or formalised via Consent Orders.

  • The parent who currently has custody of the children has an advantage

Whether a child lives fulltime with its mother or father, both parents have a role in the decision making in their child’s life, if they have equal shared parental responsibility. This means an equal say in decisions relating to things like education, medical treatment, religion etc. Just because the child is already living with a particular parent, this does not mean the courts decide it’s best if the child just stays put.

  • Parenting Plans enforceable

This is incorrect. Only formal Consent Orders are actually legally binding on parents on enforceable against them. In saying that, though, if either parent subsequently makes an Application to Court, the Judge must consider any existing Parenting Plans.

  • “I’ll just go to straight to court to get custody”

Parents are unable to begin proceedings in family court without first having attempted mediation and genuinely tried to come to an agreement. There are exceptions to this in cases where there is a risk of abuse to the child, if matters are urgent, or if factors such as domestic violence make mediation impossible.

  • “I have Court Orders, but I don’t have to follow them exactly”

Yes, you do. There are serious consequences for not following all the Court Orders relating to your children. Consequences can range from penalties to jail time. Make sure you seek legal advice if you wish to vary the Court Orders or if you don’t feel you can comply with the Court Orders.

  • “I don’t have to advise my co-parent about decisions I make around major children’s issues”

If there are orders in place that say the parents have equal shared parental responsibility over long-term or significant issues relating to the child, such as medical treatment or education, you could find yourself in breach of the orders if you do not involve your co-parent in the decision-making. This is different to ‘day to day’ decisions, which each parent can make without any reference to the other parent (e.g. what activities you engage in with the children, what they eat, what they wear, etc).

  • “I can just take my children and move away”

Children can’t simply be removed interstate without the other parent’s consent. Courts can order children to be returned to where they were living.

  • Once the kids are 12, they can decide if they want to see their other parent

There is no defined age where children’s views are taken into account in the family court process in Australia. The children’s wishes are always considered at any stage but in tandem with other factors, such as their age, their maturity level, their understanding of the ramifications of their wishes, and whether they have been coerced to hold a view.

If an older child is desperate to change parenting arrangements, a parent might ask the courts to change the parenting orders, but to do this, it is necessary to convince the court that the new solution would be in the child’s best interests. This requires evidence, usually in the form of a Family Report (a written report provided by an impartial court expert, often a psychologist or social worker), which conveys the child’s wishes to the court. These reports hold a lot of weight in the courts. The court expert has the relevant expertise to assess how much weight should be placed on a child’s wishes based on the above factors. A Court does not have to make Orders just because that’s what a child wants, though, and ultimately the Court must make Orders that are in the child’s best interests, which may not align with their wishes.

  • “My co-parent is talking trash about me to our child, and there’s nothing I can do”

Actually, it is common to seek Orders that stop parents denigrating or insulting each other in front of the children.

  • “My co-parent isn’t paying child support, so I don’t have to let them have time with the kids”

There’s no legal basis to withhold the child from the other parent based on non-payment of child support. Child support, being a financial issue between parents, is completely separate from how the child’s relationship with the parents is facilitated. However, non-payment of child support is sometimes considered as a factor in the courts when determining a child’s best interests. Do not withhold the child as some kind of bargaining chip if the other parent is failing in their child support obligations, but rather seek legal advice on how to proceed. If child support is not being paid, you should contact the Child Support Agency to discuss options with them.

  • Equal shared care laws mean Dad gets 50% of the child’s time

In Australia, shared parenting laws were introduced in 2006 but have been widely misinterpreted over time to mean that parents automatically have a right to 50:50 shared care of their child. However, equal time is not mandatory due to the laws. The rebuttable presumption of equal shared care is worked out based on whether the arrangement is safe, practicable and in the child’s best interests.

  • The system is skewed in favour of mothers

This is probably the biggest and most highly politicised debate. There is often a mistaken perception that mothers have the automatic right to have the children live with them. This is false.

When parents split, they can decide between them how to arrange the childcare going forward without the involvement of the courts. However if they do not agree on the arrangements, the courts can be tasked with making the decision on their behalf. Any decision made in relation to who the children live with is not based upon gender—nothing in the law gives women an inherent advantage over men.  The family courts will base their decision on what they determine to be the best interests of the child, taking into account a number of factors.

Society has changed over time so that parenting roles have evolved and fathers are more often taking on a bigger role in the children’s care. Sometimes they may have full custody. Slightly more mothers than fathers do end up with a bigger percentage of children’s care but this is not due to the law itself. It’s more often to do with the fact that during the relationship the mother was the primary caregiver and when court proceedings are underway involving young children, courts will take those primary attachments into account and may make orders that at least temporarily aim to preserve the primary attachment rather than disrupt it. However, each case is determined on its own unique circumstances, and there are certainly cases where fathers have been given full custody of young children.

Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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