Does Gender Matter in Family Law, most people faced with the harsh reality of a family law case start out with many preconceptions. A common preconception is that the law is unfair to a particular group, whether that group is men or women or wealthy people or particular religious or cultural groups. The most common issue is with regard to gender. Using very big generalisations (and of course there are many exceptions), men often perceive that the law favours women especially in parenting cases, and women often perceive that the law favours men in financial cases.
These preconceptions are usually based on misunderstandings. Sometimes however people develop such perceptions after we give advice on their situation, especially when we give difficult advice that what they seek is likely to be unsuccessful. Recently our client was the respondent in an application to have a child returned to the mother. Our client had made a decision to refuse to return his child to the mother, who lived in another State. That decision seemed logical to him in the circumstances, and given the frustrations he had experienced, it was understandable. On hearing our advice, which was not favourable to his position, his initial reaction was “So she gets to win, I suppose it is automatic as she is the mother, I can’t win”. Of course we understood our client’s disappointment and even anger but we worked with him to help move past the raw emotion and to realise that his very young child’s primary attachment was with the mother, who had been the stay at home parent during the relationship. We explained the relevant law, which is that gender plays no part. Instead the focus is on the best interests of the child. The attachments of a very young child will normally play a very large part in complicated cases where parents live a long way apart, thereby preventing frequent time between the child and the other parent.
It was heartening here that the parents were able to negotiate an agreement, which involved the child being returned to the mother, and providing for the child to spend regular time with dad. Our client no longer had to rely on what appeared to be the whim of the mother for him to see his child.
If the circumstances were reversed in that case, we almost certainly would have provided the mother with the same advice that she needed to return the child to the care of the primary carer, the father.
Sometimes risk factors play an even bigger part in a case than the attachments of a very young child. In another of our cases, the young child had lived with the mother all of his life until the mother’s new partner, who had a long history of serious violence and drug use, perpetrated a shocking and horrific assault on her. He was jailed for over a year for that assault, but the mother stood by her new partner throughout. She could not acknowledge or accept the risk her new partner posed to her young child. The father and the child’s maternal grandparents worked together to provide a safe and stable home for the child. As the father worked long hours he responsibly acknowledged he could not have the child in his primary care, and so the Court ordered the child to live with his maternal grandparents. Again in this case, gender played no part, as there are many factors the Court must consider when determining a parenting case, and the most significant of these factors is protection from harm.
The traditional role of women has changed dramatically over the years, and now the majority of women are in the workforce, and are even quite commonly the primary breadwinner in a relationship. However, it is still more common for mother to stay home and assume primary responsibility for the children in their younger years. This fact means that more children, especially young children, remain living with their mother following separation, whether by agreement or Court order. This situation is one that comes about as a result of factual circumstances, and not any bias in the legislation towards mothers, or gender in any way.
If you feel the need to discuss your parenting arrangements, do not let misconceptions and misunderstandings hinder your chance of moving forward as smoothly as possible. Please do not hesitate to contact our Family Lawyers Sydney for an obligation free consultation where we can give you advice based on your specific circumstances.