THE COURT FAVOURS MOTHERS
There is nothing in the family law in Australia which gives women an inherent advantage over men in child custody matters.
It is probably true that in child custody Court proceedings, slightly more mothers end up with a higher care percentage of children, but again, that is not because of anything within the law which places females at an advantage.
In truth, it likely relates to the fact that in most families, children, and particularly younger children in ‘traditional families’ (families where mum stays home and cares for the children whilst dad works) have a primary attachment to their mother. If separation occurs, and mum and dad engage in child custody Court proceedings, the Court will take notice of strong primary attachments, and may be more prone (particularly shortly after separation on a temporary basis at least) to Order parenting arrangements which preserve that attachment, rather than parenting arrangements which may disrupt it, and consequently the child.
There are also plenty of fathers who have been granted a higher care percentage of children, and even fathers who have been awarded ‘full custody’ of their children – it all depends on the facts of each case.
PARENTS HAVE A ‘RIGHT’ TO THEIR CHILDREN
Technically speaking, parents do not have a ‘right’ to their children. Parents have obligations to their children, such as an obligation to financially maintain them, and provide for their welfare, but they do not have rights to children, like a right to spend time with their children. It is the children who have all the rights.
One of a child’s most important rights is the right to have a meaningful relationship with both parents. A mother, therefore, is obligated to facilitate a child’s right to have a meaningful relationship with his or her father, and vice versa, provided doing so is safe.
A PARENT DOES NOT HAVE TO FACILITATE A RELATIONSHIP BETWEEN A CHILD AND THEIR OTHER PARENT IF THE OTHER PARENT DOESN’T PAY CHILD SUPPORT
Although non-payment of child support may be relevant in determining what is in a child’s best interests, it is not the case that a parent does not have to facilitate a relationship between a child and their other parent if the other parent hasn’t paid child support.
To put it simply, the relationships between the parents and the child, and making sure the child is safe are the two most important considerations. Child support is essentially a financial issue between the parents. A child most certainly should not be used as a bargaining chip to elicit child support out of a non-paying parent.
A CHILD CAN DECIDE WHO THEY LIVE WITH WHEN THEY TURN 12
‘Kind of’ true.
There is no law that says “once a child turns x age, said child can decide their parenting arrangements”.
What typically happens in matters where an older child (say 12+) is dissatisfied with spending time with a parent is the child will begin to refuse to changeover between parents, and the refusal will become more and more severe as time progresses. Once things get to that point, it obviously may not be in the best interests of the child for the parenting arrangements to continue.
Sometimes parents will then agree on alternative parenting arrangements, but sometimes parents will be stubborn and insist that the existing parent arrangement should continue, notwithstanding the fact that it may be causing a great deal of grief to the child. In those circumstances, it might be that the only solution is for Court proceedings to be initiated so that new parenting arrangements can be Ordered. A Court won’t just automatically make new parenting arrangements however – it would need to be convinced those arrangements are best for the child first, and the only way a Court could be convinced of that is via ‘evidence’.
One crucial piece of ‘evidence’ that is submitted to a Court in most parenting matters is a ‘Family Report’. A ‘Family Report’ is a written report compiled by a neutral Court expert (usually a psychologist or social worker) which typically contains recommendations to the Court as to what parenting arrangements the Court should Order. To compile the report, the Court expert will usually interview both parents separately, observe the parents with the children, and (especially when it comes to older children) interview the children to ascertain the children’s wishes, amongst other things.
A child’s wishes will essentially be conveyed to the Court via the Family Report. Further, in cases involving a child who is maturely considering their parenting arrangements, the Court experts’ recommendations in the Family Report may largely be guided by the child’s wishes.
So, where a mature child firmly expresses that they no longer want to live week-on, week-off with mum and dad, but would rather live with dad and spend weekends with mum for instance, a Family Report may recommend that such arrangement be Ordered by the Court. Such report would probably hold a great deal of weight with the Court (often more than mum and dad’s evidence) because the report writer is a neutral ‘expert’ party. In those types of cases, the child’s views will essentially ‘decide the matter’, as the Court will tend to comply with the recommendations of the Family Report.
The notion that “when a child turns 12, they can decide who they live with” has probably developed because parents of mature children who have gone through the Family Report process have ‘paraphrased’ their experience.
This article was published by Kyle Barram. Kyle is a family lawyer, criminal lawyer and wills & estates lawyer practising out of our Townsville office.