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.
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.
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:
- Financial status: Whether the parent can adequately provide for the child financially;
- Residence: Whether the child is strongly attached to their current school and community; and
- Moral character: Whether the parent is loving, kind and respectful towards the child and can give them a stable, safe environment.
Parenting issues that may arise for unmarried couples
While many unmarried couples who have separated can reach a parenting agreement without the need to go to court, there are a vast number of couples who do seek legal aid. Some of the most common parenting issues unmarried couples face regarding mothers’ rights vs fathers’ rights include:
The most common issue is determining paternity. This is because legally, unmarried dads are not assumed to be the biological parent by default. Unmarried dads generally have the burden to prove this. Proof may come in the form of paternity tests or proof of involvement in the child’s life.
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.
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).
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. An experienced, qualified family lawyer can assist you if needed, helping to 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.