In Child Custody matters, does the woman always win?

By 1 March 2017Family Law

In parenting matters, there is an assumption held by many that the woman always wins.  This assumption is incorrect.

1. Firstly, the notion that one parent “wins” and the other party “loses” a parenting matter suggests that the winning parent is awarded 100% care of the child or children or to use the language of the Family law Act 1975, that one parent is awarded sole parental responsibility and an order that the child or children live solely with them with there being no orders for the child or children to spend time with the other parent.

In family law matters in Australia, it is actually quite uncommon for one parent to be awarded sole parental responsibility with no order for the other parent to spend time with the child or children.

Of course, there are some cases in which the court has made orders along these lines such as where there has been significant family violence and/or child abuse.   In most matters however, each parent ends up with orders allowing them to spend time with the child or children and often an order for a sharing of parental responsibility.

The amount of time that children often end up spending with each parent has changed over the years, blurring the distinction between “winner” and “loser”.  Gone are the days when the usual care arrangements for children post separation involved the children living with the one parent and spending only each alternate weekend and half-school holidays with the other.

Although this arrangement may still be followed in some families, a far more common arrangement particularly when both parent live close to each other, is for the children to live with one parent and spend time with the other parent for an extended weekend every second week (say from Thursday to Monday or Tuesday) and possibility a night or two in the off week as well as half of school holidays.

This shift in the more usual care arrangements is possibly a result of both parents working more and changes to the Family Law Act 1975 in 2006 which introduced the presumption of equal shared parental responsibility and a requirement for the court to consider an equal sharing of time in certain circumstances.

2. Even if we accept that in most cases, both parents end up with orders allowing them to spend time with the child or children, is it fair to say that the woman always ends up with the greater share? The answer is no.

Where there is a dispute about how much time a child should spend with each parent, the court must always approach the question by regarding the best interests of the child as the paramount consideration.

Section 60CC of the Family Law Act sets out the relevant factors that the court may have regard to when determining what is in the best interests of the child.  These factors include:

  • The child’s views;
  • The child’s relationship with each parent;
  • The impact of change on the child;
  • Each parent’s capacity to meet the child’s needs; and
  • Family violence.

The allocation of parental responsibility is usually dealt with before the question of time.  Parental responsibility refers to the making of major decisions in a child’s life such as where they go to school, what religion they practise and what medical treatment they have.  There is a rebuttable presumption in the Act that parents should have equal shared parental responsibility.  When this presumption applies, the court must consider making an order for the equal sharing of time provided it is reasonably practicable and in the child’s best interests.

Where an equal sharing of time is not reasonably practicable or in the child’s best interests, the court must consider making order for the non-live with parent to spend substantial and significant time with the child provided it is reasonably practicable and in the child’s best interests.  If not, the court then looks at what orders are in the child’s best interests.

It is rare that one parent, regardless of gender, ends up with 100% care of the child or children.  These days, a greater sharing of time between parents is far more common.  Where agreement cannot be reached as to how that time should be shared, the court will determine the matter based on the individual facts of the case and how they apply to the relevant section 60CC factors.   Sometimes, the evidence suggests that the child’s best interests would be met by living primarily with his or her mother.  Sometimes, the evidence will support an order for the child to live primarily with his or her father.  Each case is individual and must be determined on its own facts, all the while ensuring that the best interests of the child are the paramount consideration.