When it comes to who gets child custody in Australia, we have previously answered some common related questions, such as “Can a mother refuse to let a dad see the kids?” and “What is supervised contact”. However, in this blog, New South Lawyers’ family Lawyers, set out to debunk some of the biggest myths surrounding who gets custody of a child in Australia.

Myth 1: Who gets more custody of a child in Australia - The mother

It is a misconception that courts favour mothers and that females are automatically entitled to more custodial rights than the father of a child. This is because Australian family law is gender-neutral. In fact, according to The Family Law Act 1975, instead of focusing on the rights of parents, the family court makes the rights of children its highest priority in parenting cases. Having said that, however, in practice, it is not uncommon that courts find that the best interests of the child often dictate that children stay with mum.

Myth 2: A parenting order is the same as a parenting plan

This is not entirely true either. A parenting order is a set of instructions (such as consent orders) made by a court about parenting arrangements for a child. Parenting plans, on the other hand, are written records of an agreement between the parents about the care of the children that are also signed and dated. However, they are not legally binding or enforceable.

Myth 3: Equal shared parental responsibility is the same as equal time

Section 61B of The Family Law Act defines Parental Responsibility “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” While it can be exercised either jointly or independently, in the absence of a court order suggesting otherwise, parental responsibility is deemed to be “equal shared” - meaning that parents have to consult the other and make joint decisions in relation to important issues (including education) affecting their children.Equal time on the other hand refers to a parenting arrangement for separated parents whereby children spend the same (or similar) amount of time with each parent - such as alternating weeks.

Myth 4: Sole parental responsibility means that the other parent has no access whatsoever to their children

This is another myth. While sole parental responsibility means that one parent has full decision-making powers regarding their children, it does not automatically follow that the other parent has no access whatsoever to their children. The truth is this will only be the case if it is shown that the children would be in danger if access is given. Read our article on how courts determine what is an unacceptable risk to learn more.

Myth 5: A parent with sole parental responsibility can make the decision to relocate with a child

If a parent (yes, even one with sole parental responsibility) wishes to relocate with their child, an official application must be made to the court requesting permission to relocate. While the application should outline why relocation is in the child’s best interests, Ultimately, it’s the court’s responsibility to resolve any completing proposals and reach a decision

Myth 6: Only a parent may issue child-related proceedings

While it is more common that a mother or father issues child-related proceedings, this legal right also extends to the child themselves, a grandparent, or even any person determined to be concerned with the care and welfare of the child.It is also interesting to note that a parenting order cannot be made for a child who is over 18 years or is or has been married or is in a de-facto relationship.

New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.