We hear it all the time. Family Courts prefer mothers over fathers when deciding who the children will live with. But is it really true? Are mums really an advantage as soon as they step into the Court room?
After working in the Family Courts for many years, we know things are not that simple. We have seen countless cases in which the Family Courts have ordered that the father is to have primary care of the children. We have also seen cases where the mother has been allowed no time at all with the children.
So, it is certainly not the case that mums will automatically get custody of children over dads, simply because they are the mother.
What is important to note is that the Family Court do not apply a cookie cutter one size fits all approach when making parenting orders. The circumstances of each child in each family will be assessed in an effort to formulate orders that will best serve the child’s needs and interests. In all cases, the Court must regard the ‘best interests of the child’ as the paramount consideration.
Under the Family Law Act 1975 there is no preference expressed for mothers or presumption that mothers can do a better job than fathers. As noted above, there are many cases in which fathers have been awarded primary care or ‘full custody’ of children.
Although the Family Courts do not assess the gender of each parent when considering what care arrangements would be best for a child, they will consider many other aspects, including factors such as:
- What type of care arrangements were in place during the relationship and whether one parent provided the primary care for a child; and,
- Whether the child has a ‘primary attachment’ to a parent. Research into child development suggests that as a part of normal development infant children bond to their first main carer and form a ‘primary attachment’ relationship. Infants and toddlers are likely to cope better when they are not separated from their primary attachment figure for extended periods.
In Australia, it is common for parents of young children to agree upon a care arrangement which involves the mother being the primary care giver, in particular for infants and young children during the pre-school years.
In practice, following separation this can result in a higher proportion of mothers ending up with orders for primary care of young children from the Family Courts. Where it occurs however, this is often a reflection of the care arrangements the parties already had in place before going to Court.
eDivorce Parenting eGuide
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We hope you enjoyed today’s blog.
The eDivorce team
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