Separation cases are notoriously complicated and stressful, and they are made even more so when there are children involved – what are mothers’ rights vs fathers’ rights?

Between visitation disputes and figuring out child support, it’s not a particularly pleasant task. Things can get even trickier legally when the parents are unmarried, especially when paternity has not been established.

This article explores the complexities of parental rights and responsibilities in separation cases involving unmarried couples in Australia, focusing on the legal shift from individual parental rights to shared responsibilities and the child’s best interests.

Let’s dive in.

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Mothers’ Rights vs Fathers’ Rights

Technically, mothers’ rights vs fathers’ rights do not exist in Australia. The Family Law Amendment Act 2006 changed the emphasis from the parents to the children; the term ‘shared parental responsibility’ is now used instead. This places the focus on co-parenting and the best interests of each child, giving no parent preferential treatment as it is believed that children should have a meaningful relationship with both parents where possible.

Rather than thinking about things in terms of mothers’ rights vs fathers’ rights, shared parental responsibility decrees that both parents have responsibilities in long-term decision making for their child.

Read our article on family law for dads for more information on the subject.

Best interests of the child

Australian family law considers the following two points to represent the best interests of a child:

  • The child’s entitlement to have a meaningful relationship with both parents; and
  • The child’s entitlement to be protected from psychological, sexual, physical and emotional abuse or violence.

However, if the final point is not adhered to by a parent; i.e. they expose the child to abuse or violence, their contact with their child may be restricted.

It is important that both parents understand the concepts of equal parental responsibility and the best interests of the child (as opposed to mothers’ rights vs fathers’ rights), especially in the court context.

Factors considered by the court in parenting orders

The court considers a number of factors when determining visitation in the making of parenting orders. However, the core component of their decision comes down to the best interests of the child – rather than thinking about things in terms of mothers’ rights vs. fathers’ rights. This should generally include both parents receiving quality time with their child and being involved in their upbringing. Other factors they consider include:

Child support 

The parent who spends the most time with the child may be eligible to receive child support from the other parent, even if they are not married. The amount of child support paid may be negotiated or lowered under certain circumstances.

Surname changes 

Rather than being a matter of mothers’ rights vs fathers’ rights, deciding upon the child’s last name should ideally be agreed upon by the parents outside of court. If an agreement cannot be reached, the court will reach a decision based on a number of factors (such as the short- and long-term effects a change of name may have on the child, and if the child’s surname has been changed in the past).

Beyond Mothers’ and Fathers’ Rights: The Importance of Shared Responsibility

Rather than thinking about parenting after separation in terms of mothers’ rights vs fathers’ rights, it is best to consider it from the perspective of shared responsibility and the best interests of the child.

For expert guidance and support in navigating the complexities of parental rights and responsibilities, O’Sullivan Legal stands ready to provide professional legal assistance, ensuring the best interests of your child are at the forefront of any separation or family law matter.

Contact us today, and our lawyers can help inform you of your legal entitlements and represent you in court. If you or your child is in danger, contact the police or call 000 in the event of an emergency.