Common Child Custody Misconceptions People Believe In Australia

January 4, 2022    divorcelawyersperthwa
Common Child Custody Misconceptions People Believe In Australia

Divorce is an unfortunate yet real phenomenon that can occur in any marriage. Legally, a married partner has equal rights on the assets and belongings of the other partner – unless they have completed a pre-nuptial agreement. If the couple has children born during their marriage period, they would also face the question and decision of the appropriate legal authority for the children’s future. 

In Australia, the Family Law Act 1975 dictates the rules of child custody awarding and the avenues to implement them. Still, many married and separated partners are not fully informed about these laws. It is better to consult with experienced child support lawyers before registering a claim in court. 

Reasons For Divorce And Child Custody

The basis for awarding divorce to a married couple has changed after introducing the Family Law Act 1975 – which dictated the irretrievable breakdown of the marital relationship as the only viable cause for divorce than the earlier fault-based system. With these changes, the divorce rate increased up to 1980. However, the divorce rates gradually decreased over the years. The crude rate of divorce lessened from 2.7 divorces per thousand people per year to 2 divorces per thousand per year – over forty years. The ongoing stigma of divorce has also lessened considerably. 

The basic parameters of child custody also changed with the Family Law Act 1975 – nowadays, the child isn’t automatically transferred into the mother’s custody. The court looks at the situations and every related factor of both the parents – so that the “best interest” of the child is preserved. The law postulates that a kid has a right to a significant affiliation with both parents and that the parents must shelter children from family ferocity, damage, and manipulation. 

According to the statistics, mothers have been awarded the greater percentage of custody orders –they have received 45% of the sole parenthood orders, whereas only 11% of the fathers had that chance. However, contact with both the parents is encouraged by the court. The instances of court-ordered restriction on a particular parent are very rare (3%), as well as contact with one parent only under supervision (4%). You can get complete information from the best teams of child custody lawyers Perth. They will provide you with the correct analysis of your situation and suggest appropriate legal pathways to strengthen your case. 

Misconceptions About Australian Child Custody

Child custody law primarily considers the welfare of the divorcing couple’s children. The established principle dictates the decision to provide the best benefits to the child. So, if it suits the child’s need, the court can deviate from the ideal “equal shared parental responsibility” and order a unique parenting arrangement. However, not all parenting conflicts need divorce lawyers; only 3% of them has reached court. Usually, the court concerns itself with complex and serious issues like family violence, child safety, or other issues leading to substance abuse and mental health. As any good divorce lawyer will tell you – not all facts you hear about Australian child custody is true. Here are some of the fallacies about child custody in Australia and their explanations:

The Parents Have The Right To Decide About Their Children

It is a common concept that after separation, the parents have the right to decide about the future and welfare of their children. Legally, it is incorrect because, according to the highlights of the Convention on the Rights of the Child and the Family Law Act 1975 (Cth) – the parents have responsibilities, and the children have rights. Their stipulated privileges according to the Convention are listed below:

  • The children have the right to be cared for and receive paramount consideration for their best interests.   
  • They have a right to live.
  • The children must be cared for appropriately for their developing abilities.
  • The children must shelter them against all forms of discernment. 
  • They have a right to be saved from harm;
  • The children can know and receive care from their parents;
  • They can claim maintenance of personal relations and uninterrupted contact with both parents consistently, except if it conflicts with the child’s best interests.
  • They can express their views liberally in all matters disappointing the child where the child is talented at forming their views.

According to the Convention and the Family Law Act 1975, both parents are held equally responsible for the development and upbringing of the child and for making decisions that affect the children’s life. Also, the parents have to undertake all obligations, authorities, accountabilities and rights related to their children – as divorce lawyers Perth will confirm (section 61B of the Family Law Act). 

In short, the opinions of the children will matter, and the court will consider it during its deliberation about the custody rights, or other related matters. So, depending on the relevant factors, the court may change an order of shared custody – although the court would need concrete evidence; other than a history of family violence or other issues. You should consult with an experienced legal counsel before taking any step.

Primary care of the child is the sole decision taker

The above statement is a pure myth –because under section 61DA of the Family Law Act, the court must presume equal shared parental responsibility for both parents is in the children’s best interest – which specifically means that both partners are obliged to make the most important long-term judgments about their children jointly. This fact is the starting point in resolving any dispute regarding parenting responsibilities. 

To provide the best development and upbringing of the children and ensure their best interest – the court may allow one predominant partner contact with the children. However, that doesn’t mean that the primary caregiver has the sole decision–making right. Both the partners have to discuss and decide about their child’s life unless the court has ordered anything else. So, if you are separated, and the children stay with one partner, you will have to decide on the children’s matter jointly. If you have misgivings about this arrangement, you should consult a child custody lawyer for your issues. 

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