Historically, when considering a mother’s or father’s rights when it comes to custody of the children, mothers were granted custody in the far majority of cases.
Legislation enacted in 2006 was the foundation for this weighted decision-making by family courts.
However, now, mothers’ rights are not recognised by Australian family law. Fathers’ rights are also non-existent.
This is because, rather than prioritising the rights of parents, the family court prioritises the rights of children in parenting issues.
In other words, neither parent receives preferential treatment, and the court’s decision is based on the child’s best interests.
The child’s best interests will be discussed in greater depth further down.
The presumption of shared parental responsibility is the basic premise behind the Family Law Amendment (Shared Parental Responsibility) Act 2006.
This promotes shared custody rights and is based on the premise that children ought to have meaningful relationships with both of their parents, and that a parent’s responsibility and duty of care for their kid remains unchanged regardless of their marital status.
When court proceedings for parenting orders commence, the court assumes that the child’s best interests are served by maintaining contact with both parents.
It makes no difference whether you are a mother or a father.
Parents must demonstrate their willingness to collaborate respectfully in order to obtain a solution that reflects their child’s best interests.
A relevant article here to understand the father’s rights in family law:
After separation or divorce, what happens to the child or children?
It’s crucial to keep in mind that parental responsibility isn’t the same thing as child custody.
The parent with whom the child lives is not always the parent who is capable of making all key long-term decisions for them.
Parental responsibility includes decisions such as where the child attends school, medical treatment, and cultural upbringing.
Mothers and fathers must make these decisions together if equal shared parenting responsibility is preserved.
Mothers’ rights include major decision-making authority over their children’s upbringing and lives.
Because they both have shared custody rights, if the child’s father wishes to make a crucial parenting decision with which the mother disagrees, she can stop it from happening.
Mothers’ child custody rights
In Australian family law, there are two fundamental tenets of the best interests of the child:
- A child has the right to have a positive relationship with both of his or her parents.
- A child’s right to be safe from physical, psychological, emotional, and sexual damage is unalienable.
The second and more essential point is that if a child’s relationship with one of their parents results in abuse – including exposure to, risk, or threat of abuse – the child’s contact with that parent will be limited.
Because children have a right to know and be cared for by both parents, the presumption of equal shared parental responsibility was established.
Mothers’ rights to care for their children are so predicated on the best interests of the children.
During family law proceedings, it is critical for Mothers to demonstrate that they understand their children’s best interests and are prepared to act in their best interests and care for their welfare.
As the child’s most fundamental right is to be safeguarded from harm, a parent who exposes their child to abuse has no right to a relationship with that child.
The emphasis on the child’s best interests mirrors the UN Convention on the Rights of the Child, particularly articles 3, 9 and 18:
- All organisations that work with children should strive to achieve the best possible outcomes for each child.
- Unless it is for their own good, children should not be separated from their parents. Children with separated parents have the right to maintain communication with both parents unless doing so would endanger the child.
Both parents are responsible for their children’s upbringing and should always consider what is best for each child.
Focusing on the best interests of the children demonstrates that children’s rights are more important than father’ rights or mother’s child custody rights.
What Other Factors Affect Mothers’ Rights When It Comes To Parenting Orders?
The best interests of the child are important, but they are not the only factor in determining the outcome of parental orders.
The court considers a variety of other considerations, including the opinions of the parents and children.
These elements include:
- How the youngster thinks about the custody arrangements that have been proposed
- How eager are both parents to promote the child’s relationship with the other parent to continue?
- The existing way of life of the parents and the child
- How successfully the parents can meet the requirements of their children
- Both parents’ perspectives on parental duties
- Orders for domestic violence or evidence of domestic violence
Each case is assessed on its own merits, taking into account the circumstances of the couple in question.
When choosing how much weight to give each aspect, the court can use its discretion.
What are my rights as a mother in Australia following my divorce?
After a divorce, a mother’s rights include the ability to file a claim for child support, spousal maintenance, and property settlement.
Support for Children
Many women are granted primary or complete custody of their children.
Because both parents are responsible for their child’s financial support, regardless of marital status, a mother has the right to demand payments from her former spouse for the child’s benefit.
When parents divorce, the child has a right to be cared for by both parents, including financial assistance, and both parents retain this duty.
Child support is handled by the Department of Human Services.
The amount of child support a mother is entitled to is determined by the mother’s and father’s contributions, as well as their current salaries and the amount of time they spend with the child.
Spousal Maintenance
After a divorce, mothers are entitled to spousal maintenance.
Child support is money that is paid for the child’s benefit.
Spousal maintenance refers to payments provided to a former spouse.
After separation or divorce, not everyone receives spousal maintenance. It is contingent on one party’s reasonable needs and the other’s financial capability.
The court will consider the following factors for both spouses:
- Age and well-being
- Financial resources and income
- Ability to work What is a reasonable living standard?
- Whether or not the marriage has had an impact on one’s ability to earn a living
- With whom do any children reside?
When a person receiving spousal maintenance payments enters into a new relationship, the court will evaluate the spousal maintenance orders to see if the person can support themselves appropriately.
Is it possible to backdate spousal maintenance?
The application for spousal maintenance cannot be backdated because it is for that person’s future needs. A court will not retroactively award spousal support, so it is up to the applicant to file their spousal maintenance claim as soon as feasible.
Orders for Relocation
Following a divorce, it is not uncommon for parents to seek to relocate with their children.
For example, a mother may be granted primary custody of her child and wish to relocate, possibly even internationally.
However, the child’s primary caregiver may not be the only parent with parental responsibilities.
The family law system encourages parents to come to an agreement together in the interests of parental cooperation and prioritising the child’s right to know and be cared for by both parents.
If the child’s father retains parental responsibility – which means he must be engaged in key long-term decisions about the child – and refuses to agree that the mother and child should relocate, the mother will need to file a relocation order with the family court.
The court will prioritise the child’s best interests and welfare, as it does with other parenting concerns. They’ll strike a balance between her rights and the best interests of the child.
This includes things like the short- and long-term repercussions of relocation on the child, as well as the impact of relocation on the child’s parent-child interactions.
What to do next
If you need advice with respect to your family law situation, At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Sydney, Melbourne….and all other locations in Australia. We also do international family law matters.
