Understanding Australian Child Custody Laws
Australian parenting arrangements recognise that fathers have an important role in the caretaking of children by the creation of an equitable agreement between parents that is first and foremost in the best interests of the child.
There is a common misconception that mothers retain primary custody of children because they are traditionally viewed as more suitable for the role of primary carer. On the other hand, fathers were considered less likely to retain custody because they were considered more likely to be employed and have a better overall earning potential.
In Australia, parenting laws provide the framework for a fair allocation between both parents, however, there are often valid reasons why an equal split may not be possible.
Fathers’ Involvement in Their Children’s Lives after Separation
The Australian Institute of Family Studies have found that many parents, including both mothers and fathers, express a desire for the non-resident parent (often fathers) to be more involved in their children’s lives.
Fathers commonly want increased time with their children but face obstacles that limit this involvement.
The most frequently cited barriers preventing increased involvement include:
- Work commitments
- Belief that the child’s other parent would resist increased contact
- Physical distance or travel costs
The Best Interest of the Child
Australian parenting arrangements have been reformed in this area to make it clear that there are no specific parents’ rights and that there is no legal distinction between fathers and mothers. Further, the Federal Circuit and Family Court of Australia (“the Court”) considers the benefit of the children having a relationship with both parents and other people who are significant to the children, where it is safe to do so. The Court will take into account the best interests of the children above all else.
The Family Law Act 1975 (Cth) also covers diverse matters such as divorce and separation, parenting arrangements, property settlement and financial maintenance of one party by the other.
How the Family Law Act Applies to Parenting Arrangements
When considering parenting arrangements following separation, the Court has to determine who the child will live with and spend time with and specifically what is in the child’s best interests.
When determining the best interests of the child, the Court has broad discretion to make parenting orders and must take the following factors into account:
- The child’s safety (including history of abuse or family violence)
- The benefit of having a meaningful relationship with each parent where it is safe to do so
- The child’s views and developmental need
- Each party’s capacity to care for the child
- Any other relevant considerations
Conclusion
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 need to speak to an experienced family lawyer with respect to parenting arrangements, please contact Etheringtons Family Lawyers in North Sydney (02) 9963 9800 or via our contact form.