Mother’s Rights vs Father’s Rights After Divorce In Australia

Rights Of Mothers in Divorce

The rights of a mother after separation include child support, spousal maintenance and property settlement. A mother is entitled to receive financial support from the former spouse to help in the child’s upbringing. Spousal maintenance is provided when there is a real need for money and the spouse can pay. Payment made for the benefit of a former spouse is referred to as spousal maintenance whereas any financial help given for the child’s expenses solely like school fees, medical bills and other miscellaneous expenses is child support. If a mother who has primary custody wishes to relocate with her children after a divorce, she can do so after the spouse agrees in cases where the father shares parental responsibility. In case the father denies it, she has to make an application for relocation orders to the family court. 

The court will consider the child’s best interest and welfare and decide accordingly. In cases where the father withholds the child from seeing the mother, or moves the child to a different country without the mother’s knowledge, she can apply for recovery orders. Father’s rights include access to children and their whereabouts even when they do not have the primary custody of the child unless there is any evidence of violence or abuse. If parenting orders are breached, the father can send an application to the court, informing about the breach. It is always advisable for both parents to document any breaches, instances of violence or abuse and record witness statements. Any allegations of domestic violence or abuse should be addressed immediately.

Child Custody Rights For Mothers

There are no specific child custody rights for mothers technically as per the Australian Family Law. The same goes for fathers as well. The family court focuses on the rights of the children and makes the child’s best interest a priority over the rights of the parents as such. Neither parent is given any preference and shared custody rights are encouraged so that the child gets to spend quality time with both parents. This is done keeping in mind that staying connected with both the mother and the father helps the child’s emotional and overall growth in a better way. Being a father or mother does not make any difference technically when the proceedings for parenting orders begin and both parents are expected to work together amicably in the best interest of the child. There can be exceptions, however, if the child is vulnerable to abuse, violence or harm of any nature and type.

The mothers must establish that they understand the best interests of the child and can look after their welfare by being able to provide financial and emotional security to the child. In instances where an abusive parent exposes the child to violence or harm, that parent can be denied access from the child or given restricted and supervised access. As part of a mother’s right to save herself and the child from family violence, she can request interim orders in case urgent protection is sought from an abusive spouse or family member.

Law For Custody Of Child After Separation

Parental responsibility should not be confused with child custody. Also, the parent with whom the child lives may not be entitled to make all the important and long-term decisions. Decisions like which school is the best for the child, following specific customs and culture and choosing the medical treatment plan fall under parental responsibility. Both parents are expected to make the decisions together amicably and by giving respect to the other’s views, whenever equal shared parental responsibility is justified.

A mother has the right to make significant decisions to help with the best upbringing of the child. In instances where the father comes up with major decisions that the mother does not agree with, she can stop the same from going ahead. Separating children from either of the parents is not advisable unless it is going to benefit the child. Children have all the right to stay with both parents unless it may jeopardise or harm the child. Both parents are expected to share equal responsibilities for bringing up the child.

What Affects Mother’s Rights In Parenting Orders?

Many factors are considered while making parenting orders. It is believed that a child has the right to have an equal relationship with both parents unless there is physical, emotional, psychological or sexual harm to the child from either parent in which case contact will be limited or cut off as per the scenario to protect the child from abuse. Apart from the child’s best interest, the views of the parents and the child are also taken into consideration. How the child feels about the proposed custody arrangements and what the parents think about shared parental responsibility also matter. The lifestyle of the child and the parents and their ability to provide financially for the child’s education and overall needs is also looked into while proceeding with parenting orders.

Current family violence or any evidence of it previously is also taken into account and the court can exercise its discretion to determine the outcome as per the situation of the family. It is a mother’s right to protect her children and herself from the violence of any form and they can apply for an apprehended domestic violence order (ADVO). She needs to show that there is a fear of violence, stalking or intimidation based on reasonable grounds. The mother can also request interim orders if there is a need to get protection urgently. This can prevent future acts of violence as well. It helps a great deal if the mother can provide substantial evidence that she can take care of the children’s needs financially as well as emotionally. A mother needs to keep the best interest of the child as a priority during the custody proceedings.

Can A Mother Deny A Father’s Access In Australia

A mother cannot deny a father access to their children in Australia as equal and shared parental responsibility is stressed in the best interest of the child. Fathers have the right to see their children and taking a child away from the father can be considered unethical and illegal. However, a mother can restrict or deny a father access if she can show that the father is abusive or a potential risk to the child. In cases where a history of violence (physical/ emotional/ sexual/ psychological) is present, drug or alcohol abuse is involved or when the father is afflicted with extreme mental health issues, a mother can request the court to deny access after providing all the evidence that supports the claim.

Only an order from a local, federal or family court in Australia would be able to stop a father from accessing their child. Denying a child from either of the parents is usually seen as the last resort after exhausting all other available options like supervised or limited access. A child is denied access by the court only in cases where that is the best and safest option for the child.

Does A Father Have The Right To Know Where His Child Lives?

A father has the right to know where his child lives, even if the father is not the custodial parent. He also has the right to know what is happening in his child’s life including school and medical details. He can even request to see or access the child’s documents like health records, school report cards and details of any extra-curricular activities. Australian law emphasises shared parental responsibilities and equal rights for both parents and thus a father, even though a non-custodial parent, has all the rights to know the whereabouts of his child. There could be exceptions however where the father is abusive or there is evidence of family violence and not sharing the details of the child is the best solution for the safety and well-being of the child.

Fathers’ Legal Rights To Unborn Child In Australia

A father has very limited legal rights towards an unborn child in Australia. A father of an unborn child cannot restrict the mother’s movements or stop her from doing what she wants to of her free will and wish. A father can, however, be given legal rights to support the mother and the child in instances where there is a potential risk to the mother from external violence or abuse. A father can be given the right to provide financial support to the mother, bear the cost of childbirth and raise the child. He can also be given the right to spend time with the mother and provide emotional support whenever needed. Nevertheless, once the child is born, the child’s rights will take over the rights of the parents and any decision will be taken based on the child’s best interests and safe upbringing.

Shared Parenting

It is proven that children who get to spend time with both parents do well emotionally and psychologically and this reflects in their behaviour and attitude even after they become adults. Hence, courts these days advocate that a child should get equal time with both parents and encourage shared parenting wherever possible. There could be exceptions made where parental access could be restricted, supervised or denied as the last resort when there is evidence of violence or abuse in any form, criminal proceedings, mental illness and alcohol or drug abuse involved.

The court prioritises protecting children from psychological, emotional, physical and sexual violence, abuse or harm. It is in the best interest of the children that they receive sufficient time and support from both parents for their overall growth and well-being. A child should not be denied contact with one parent unless it is absolutely necessary and in the best interest of the child. Both parents should share the responsibility for the child’s upbringing including financial contribution, spending quality time and attending to the emotional needs of the child. Both parents should keep their differences aside in the best interest of the child.

Legal Help For Divorced Fathers And Mothers

The decision to go for separation or divorce can be emotionally and mentally challenging and more so when children are involved. Child custody battles and other legal proceedings can drain you out without proper guidance. Maatouks Law Group is a reputed law firm with offices across NSW that can help you during this challenging phase of your life. We understand the sensitivity involved in dealing with separation cases and treat all our clients with courtesy and respect. Our team is dedicated to achieving superior and the best possible results for our clients. 

We have the experience (25-plus years), confidence and resources to provide unparalleled service no matter what your legal requirements might be. We provide our clients with a full range of legal options so that they are aware of the proceedings. We work closely with some of the top barristers in NSW and can assist you with an array of legal issues including family law, criminal law, property law and traffic law. Our services also include debt recoveries, wills and estates, litigation matters, corporate law and conveyancing. You can call us to know more about our legal services and our friendly team can help with all your queries. We also provide free phone consultations to assist you.

Call us now and we can help you!