Mum vs Dad who wins?
I’m sure you are wondering whether the Courts favour mum over dad when considering who the child should live with. Well I’m here to tell you the truth. It is often assumed that the child or children are automatically given to mum, because, well…. Mum’s have always been the primary care giver, right? Well let me tell you, its 2016 and times are changing.
The Federal Government, in 2006 tried to clarify that it is the parent who can best provide for the child by making amendments to the Family Law Act 1975 (Cth) (FLA) to state that the Court’s paramount interest is for the child to live with a person whom will provide the most optimum environment, which is in the child’s best interests, regardless of whether it is mum or dad.
As the writer’s intention is to show that the Court does not discriminate between sexes, it should be stressed that parents are not an exclusive domain of heterosexual parents. This article also applies to Mum and Mummy and Dad and Daddy too. When the Court is asked to look at best interest of the child, it is the characteristics of the adult and environment that adult can provide that is the most optimum for the development of the child (and or children), and with whom the child will live with as their primary carer and the time to spend with the other parent.
So what does the Court look for?
The Court has a starting point when assessing conflicting parenting proposals. The Family Law Act (1975) provides the legislation that governs this area at Part VII. The legislation states the Court must consider the meaningful involvement of the child with each parent. The paramount necessity is to protect the child from psychological harm and from being subjected to, or exposed to, abuse, neglect and or family violence.
The Judges must also be satisfied as to whether the presumption of equal shared parental responsibility of the child should apply (s61 FLA).
This does not mean that the child spends 50% of their time with each parent, in summary it means:
- That decisions for major long-term issues about the child have to be made jointly (s65DAC FLA).
- These decisions can include, amongst other,
- where the child goes to school,
- the application for a passport for the child,
- medical procedures and
- other decision which will affect the child in their future.
The Court also must assess the competing proposals of both parties, which is contained in their Initiating Application and Response.
Firstly the Court must look for any agreement between the parties. For example both parties agree the child should live with one parent, but disagree on the time the child should live with the other parent.
In considering the parties issues in dispute, the matters the Court needs to determine from the evidence contained in each party’s affidavit and, witness affidavit (if any. are set out at s60 CC FLA. Some of the matters to be considered are:
- The extent as to which a parent has provided a relationship between the child and the other parent, or hindered that relationship.
- Just because the child has always lived with one parent, does not mean that it is the optimum environment for the child, as
- Just because you have always spent 7 days each with the child, for example, it may not be the optimum environment for the child, or
- Which parent is able to provide a healthy relationship for the child so s/he can have a relationship with the other parent and their family, and new partner present and or future?
- A parent with whom the child usually lives with, may not necessarily be the best person for that child to live with on a permanent basis.
- If the primary carer unreasonably withholds the child from the other parent so as to be detrimental to the child’s emotional well-being, the Court may reverse the situation to enable the child to live with the other parent to develop and maintain that relationship. Specifically if the Court is satisfied that the other parent can facilitate the relationship with the other.
- This is always subject to protecting the child from emotional and physical harm.
- Which parent has a stable and safe home for the child to live?
- It may not be in the best interests to live with the au pair or extended hours in day care, or share house, if the primary carer is required to spend long and extended periods away from the home for work or other reasons and the other parent can provide a safe home with emotional support.
- If there are other occupants of your home, this will impact on the Courts decision when making an order for the child to live with one parent and spend time with the other.
- The practical difficulty of the child spending time with each parent and how each parent is prepared to overcome that difficulty.
- Children can still have meaningful relationships with parents that live in different states; it is how the parents can provide the means and opportunity for the child to maintain that relationship with the other parent that the Court needs to consider if it is appropriate for the child, not the parents.
- The views of the child, depending on the age and maturity level of the child as assessed by a Family Consultant (psychologist).
- It should be noted that if the child expresses the wish to live with one parent because that parent does not make them stack the dishwasher or do their homework, or spends more money on them and does not monitor their social media content, their views will probably not be reflected in the Judge’s decision.
How do you show the Court the child/ren should live with you?
You must provide evidence to the Court that supports that you have the best interests of the child at the heart of your request for your proposal for parenting orders.
So in answer to your question of who wins between mum or dad, the answer is neither. It is all about the child and which parent can provide the better environment for the child.
The Court is concerned as to how responsible the parents are in providing for the rights of their children, and if the parents can make decisions together. If a parent provides evidence that there are reasonable grounds that the parties cannot make decisions together for the sake of the child, (s61DA FLA), the most competent parent will be given sole responsibility of the child’s long term decisions. This does not mean that the other parent cannot spend the most optimum time with the child, which is in the best interests of the child’s emotional and physical needs.
Do you wish to have further detailed information to assist you provide a positive and happy environment for your child/ren? Do you want to provide certainty to help them adjust to their new way of living whilst keeping them safe from the problems that you and the other parent, and or grandparent and or significant other person have with each other? Please do not hesitate to contact our office on 5679 8016 to speak with one of our solicitors.