Over the many years in practice, whether our client is a father, a mother or a person who has a significant relationship to a child, we see a pattern of common misconceptions about parenting and the law. Let’s bust some of those myths!
- Since our child lives with me, I am the only one who should have the right to make decisions.
The law provides that each of the parents of a child has parental responsibility for the child. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This includes, for example, ensuring the welfare of the child, the name of the child, where the child lives, what education the child receives, what religion (if any) the child should practice, what medical care the child receives, and other major issues.
There is a clear presumption that it is in the best interests of the child for his/her parents to have equal shared parental responsibility. A parent’s responsibility is taken away from them only in limited circumstances (1) where the Court finds that parent has engaged in the abuse of the child, or another child who at the time of abuse was a member of that parent’s family, or (2) if that parent has engaged in family violence.
Parents have equal shared parental responsibility, unless the Court is satisfied that this is not in the best interests of the child. In other words, just because your child lives with you, does not mean you have the sole responsibility in making major decisions for the child. You must convince the Court it is in the best interests of the child for you to have that sole responsibility. This is of course separate to day-to-day responsibility, such as sleeping.
The law says that I have a right to have my children spend equal time with me.
Unlike equal shared parental responsibility, there is no presumption about the time that the children spend with each of their parents. Equal shared parental responsibility (above) does not translate to equal time. But, where there is equal shared parental responsibility, the Court must consider whether it is in the best interests of the child to also spend equal time with each parent.
The child’s best interests is the underlying and paramount consideration when determining what time the child spends with his/her parents. In determining what is in the best interest of the child, the Court’s primary considerations are (1) the benefit of the child having a meaningful relationship with both of his/her parents and (2) the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
The Court may take into account additional considerations such as any views expressed by the child (depending on the age, capacity and maturity of the child), the nature of the relationship of the child with each parent, the practical difficulties and expense of the child spending time with and communicating with the parent, the capacity of the parents, any order relating to family violence.
The system always favours mothers.
Very often we find that fathers take the view that the system favours mothers and that the Court will automatically prefer for the children to live with the mother.
Following from the law outlined in myths 1 and 2 above, this is not the position at all. We have represented many fathers with whom the child lives and spends time with the mother as agreed/ordered.
As above, the Court’s concern is the paramount consideration being the best interest of the child which is determined by taking into account the primary and additional considerations. The Court is gender neutral in determining children’s issues.
Our team of experienced family lawyers can help guide you through this difficult time. If you have any queries about parenting or other family law matters, please do not hesitate to contact us on 02 9411 4466.