Rights, decision making power and custody – Myths and misconceptions

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Myth 1: I have a right to see my children and make decisions about their wellbeing.

There is a common question I have been asked by people seeking advice in relation to family law disputes that involve children.

That question is:

“What are my rights in relation to my children now that we are separated?” 

My answer to this is usually quite short, “None”.

The first thing we need to clear up in these situations, is the concept that children have rights – and parents have responsibilities.  We see this principle reiterated in both the Convention on the Rights of the Child and also in the Family Law Act 1975 (Cth).

The Convention on the Rights of the Child was adopted in 1989 and came into force in 1990.  A copy of the convention can be found at the Australian Human Rights Commission.  Under the convention, children in Australia have a right to a number of things including (but not limited to):

  1. be cared for with their best interests being the paramount consideration;
  2. be provided for in a manner consistent with the evolving capacities of the child;
  3. be protected against all forms of discrimination;
  4. be protected against harm;
  5. life;
  6. know and be cared for by his or her parents;
  7. maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests;
  8. express their views freely in all matters affecting the child where the child is capable of forming his or her own views.

The convention also states that “both parents have common responsibilities for the upbringing and development of the child” and that “The best interests of the child will be their basic concern.”

While a child has a right to have a meaningful relationship and spend time with both parents, it must also be safe and in the child’s best interest to do so.

Section 60CC of the Family Law Act 1975 (Cth) sets out a number of factors that the Court must consider when determining whether it is in the child’s best interests to spend time with both parents. Depending on the circumstances, a child’s best interest may find Courts imposing conditions on time spent with a parent.

The ability to make decisions concerning your child is referred to as “parental responsibility”. Under section 61B of the Family Law Act, parental responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

Under section 61DA of the Family Law Act, the court must apply the presumption that it is in the child’s best interests for both parents to have “equal shared parental responsibility”. This means that the starting point in any dispute regarding the parenting of children is that you and your partner are obliged to make major long term decisions about your children jointly.

However, under subsection 2, this presumption does not apply in circumstances of:

  • abuse
  • neglect
  • family violence.

In these circumstances, the court must be persuaded that it is in the child’s best interest for the parents to share parental responsibility. It is important to know though that the mere existence of historical family violence does not automatically prevent the court from making an order for equal shared parental responsibility and/or equal time between both parents.

For more information about what happens when equal shared parental responsibility is not ordered refer to our case note on sole parental responsibility.

Myth 2: If I am the primary carer of my children, I will be responsible for making all of the decisions about their care and well being.

This is a case of “putting the cart before the horse” for lack of a better expression.  Who bears the decision making authority must be determined before decisions are made as to the child’s residence.  This is because the Family Law Act makes it clear that if the court decides parents should share the decision making authority for their children, i.e. that the parents have equal shared parental responsibility, the court must then go on to consider whether equal time is in the child’s best interests.

There are of course a number of reasons why it may not be in the child’s best interests to have equal time with both parents including the maturity and development of the child and practicalities of facilitating such time. Such impediments may result in the child residing predominantly with one parent.  However, it does not necessarily follow that the parent with whom the child primarily resides will be the sole decision maker and it is often the case that both parents will be required to share parental responsibility and continue making decisions together. Read more about parental responsibility.