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Family Law Myth #1: Children Will Always Live With The Mother Post-Separation

There are a lot of misconceptions around how family law operates, largely influenced to a degree by Hollywood and what we see in the media and on television. One particularly popular myth relates to the idea that the family court favours mothers in parenting disputes (previously called child custody). This myth seems to be based on some poorly conceived notion that mothers are naturally more fit for childrearing than fathers.

In reality, the court ascribes equal responsibility to both parents when arbitrating cases involving children. So, let’s do away with the idea that the court has a gendered bias with respect to child custody.

Now, if the court is required to step in and make a decision about custody on behalf of parents who can’t agree amongst themselves, how are these issues actually determined?

What is in the child’s best interests?

Above all else, the court will make its decision based on what it believes is in the child’s best interests. The two primary considerations, as set out in the Family Law Act 1975, are:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

If these two points conflict, the second point will always be given greater weight. Additional points the court will consider are:

  • The views of the child, if their maturity and level of understanding permits;
  • What relationship the child has with each parent and other family members;
  • How involved each parent has been in major decisions concerning the child’s future;
  • Whether each parent has met their obligations in maintaining the child;
  • The likely effect of changes to the child’s circumstances, including separation from either parent or other relative;
  • Any practical difficulties either parent may have in maintaining contact with the child, and how that affects the child’s relationship with each parent;
  • The attitude of each parent toward their parental responsibilities;
  • Any family violence impacting the child.

Sharing parental responsibilities equally

Unless convinced otherwise, the court assumes it is in the child’s best interests for both parents to be equally involved in making long term decisions about the child’s future. These decisions include issues such as:

  • The child’s education;
  • Religious and cultural considerations in the child’s upbringing;
  • The child’s living arrangements;
  • How the child’s health and wellbeing will be attended to. 

Time spent with each parent

Parents sharing equal responsibility for a child’s upbringing does not necessarily entail spending equal time with them. The court will consider separately the practicalities of each parent spending time with the child on weekdays, weekends, holidays and special events like birthdays. Relevant issues include:

  • How time spent with each parent will affect the child;
  • Whether or not both parents live close by;
  • The ability of the parents to communicate with each other;
  • Any other relevant consideration.

You’ll notice that none of the factors used to determine parental arrangements make any specific reference to the gender of either parent. All relevant points relate equally to both parents and are applied by the court without any presumptions as to the abilities of a parent based on their sex. 

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