Something which shocks many parents, especially mothers, when they discuss with their family lawyers what is going to happen with regards to their children after a divorce, is that the chances of obtaining sole custody are often slim.
In fact, the concept of custody, meaning one parent makes all the decisions for their children to the exclusion of the other parent, doesn’t really exist in Australian family law. This is due to the family Law Act of 1975 enshrining the principle of shared parental responsibility.
This principle means that unless there are sound and valid reasons not to, the court will take the view that it is in the interests of children that their lives have input from both parents.
In practical terms this means a mother cannot change the school the children attend or agree to the child having a major medical procedure without discussing it, and normally agreeing on it with the child’s father.
Shared parental responsibility may not always seem fair, especially to mothers who may have had to put up with a husband who had affairs, or who did not contribute to the home, as they should have. A perfectly reasonable argument can be made that it is, indeed, extremely unfair to that mother.
However, the Family Law Act’s shared parental responsibility is not there to necessarily be fair to either or both parents. Instead, that part of the legislation is there to ensure that the best interests of the child is best served.
Like it or not, the overriding principle of Australian family law is that having both parents play role in a child’s life is better than just one parent doing so.