The term “custody” is no longer used in Australia. Instead the proper term is “ live with arrangements” or “parenting time”. The misconception that the children will always live with the Mother following a separation likely stems from traditional gender roles where the father was considered the primary breadwinner and the mother, the homemaker. But this is far from the truth. If you have doubts, please take the time to read the case below.

Pachis & Turnbull [2023] FedCFamC1A 110 (10 July 2023)

In this case, final parenting orders were made on 28 February 2023 stating that the two children live with the Father and spend unsupervised time with the Mother. However, the Mother did not comply with the orders and prevented the two children from living with the Father. As a result, the Father sought for recovery orders and requested the final parenting orders be varied to prohibit any contact between the children and the Mother until the matter could progress with a Primary Judge.

During the subsequent court hearing, the Primary Judge ruled in favour of no contact between the Mother and the children. The Primary Judge concluded that the Mother had consistently used her time with the children to undermine the Father, leaving the "No-time" orders as the only viable solution.

Ultimately the Mother failed in her appeal and the Father was granted sole parental responsibility for the children.

Child's best interests 

In Australia, when it comes to making parenting orders and determining parenting orders, the primary consideration is based on what is in the best interest of the child in the absence of physical or psychological harm. Section 60CC of the Family Law Act 1975 outlines the consideration the court considers when determining the child's best interests. These factors include the importance of the child having a meaningful relationship with both parents and the necessity of protecting the child from physical or psychological harm, whether it be abuse, neglect, or family violence. 

Subsequently, the court does not show preference towards the Mother when making parenting orders, instead, their main focus is on ensuring the child's best interests are met.

Other Family Law myths debunked

Seeking accurate and reliable information that will debunk some other common family law myths? Check out the recent post by our Family Lawyers - which aims to provide individuals with a clearer understanding of their rights and responsibilities in family law matters.

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