Mother vs Father Parenting Proceedings in Australia

It is a common misconception that in mother vs father parenting proceedings, Australian courts prefer to Order that children live with the mother. While statistics do indicate that the children of separated parents spend the majority of their time with their mothers, this is generally the result of a parenting arrangement made by consent between the parties. This article looks at some of the key statistics on ‘live with’ orders made between mother vs father in Australia and discusses the attitude of the courts towards each parent in relation to parental responsibility and long-term decision-making authority.

Divorce in Australia

Understanding child custody statistics requires a consideration of the prevalence of divorce and family separation in Australia. One of the most critical events in relation to divorce in Australia was the introduction of the Family Law Act 1975, which replaced the old fault-based divorce system with a system where the irretrievable breakdown of a marriage is the only basis for a divorce. After this legislation was introduced, divorce rates rose, reaching a height in 1980. Despite the lack of stigma around divorce in contemporary society, divorce rates have actually fallen in more recent decades. Forty years ago, 2.7 out of every thousand members of the population divorced every year; by 2018, the crude divorce rate had dropped to just 2 people per thousand.

Parenting proceedings in Australia

In Australia, the Family Law Act 1975 also legislates for the how parenting proceedings shall be dealt with. Under this Act, which was informed by the United Nations Convention on the Rights of a Child, ratified in Australia, the courts must always proceed in a way that prioritises the best interests of the child. 

As such, the court does not start from the assumption that children will spend more time with their mother as opposed to their father. The Court simply considers, ‘What is best for this child?’ The courts will consider the child’s views and the nature of the child’s relationship with each parent. The law presumes that a child has a right to a meaningful relationship with both parents and that children must be protected from family violence, harm, and abuse. 

Section 60CC of the Act provides a non-exhaustive list of the factors a Court will consider when determining the a child’s bests interests.

Division 2 of the Act, sets out the notion of parental responsibility and provides that the Court can, after considering the factors set out in section 60CC, make the following Orders:

• That one parent has joint long-term decision-making authority; or 
• That one parent has sole joint long-term decision-making authority.

It is important to note that the allocation of decision-making authority in respect of a child is not directly related to the time Orders made by the Court. for example, the children could be ordered to live with the Mother, yet both parents retain authority to make important long-term decisions.

Statistics in Australia

A 2014 survey discovered that the most common custody arrangement is for children of separated parents to spend at least two-thirds of nights with their mothers. This statistic may reflect a pattern of children living with mothers during the school week and spending weekends with their fathers. A much smaller proportion (less than 20%) of children spend every night with their mother and only spend time with their fathers in the day. This arrangement is most common for children under the age of two. Genuinely equal time, where the child spends an equal number of nights with each parent (for instance, alternate weeks), occurs in less than one in ten parenting arrangements. Less than 10% of children have no contact with one of their parents.

Reaching Parenting Agreements

It is a misapprehension that the courts are mostly responsible for parenting arrangements. In fact, only about 3% of separating parents in Australia make their parenting arrangements through the courts. The courts are much more likely to be involved in cases of family violence, child safety concerns, or other complex situations including mental health and substance abuse.

It is more common for separating parents to use a family dispute resolution service or solicitors to reach an agreement – nearly one in five parenting arrangements are facilitated through these services. This means that the great majority of agreements are actually arranged by parents without the intervention of the courts or the assistance of a mediator or solicitors.

When Court’s are required to make a determination, and even in cases where the sole decision-making Authority is given to one parent, it is still extremely rare for the Court to order that a child has no contact with the other parent. Out of the 3% of cases that go to court, only 3% of these cases result in an order that stipulates no contact with one parent. In 4% of cases, the court has ordered that the child should only have contact with one parent under supervision.

Armstrong Legal’s family law experts can provide advice about the care arrangements which are within the discretion of the Court to make, and likewise, the likely allocation of long-term decision-making authority.

Please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment with one of our friendly, professional family lawyers.