One of the subjects that a family lawyer will be most asked about will come from mothers enquiring what their rights are regarding their children should she and the child’s father be going through a divorce. Often these questions come from the mother wrongly believing that she has more parental rights than the father.
It usually comes as a surprise to learn that far from the mother being the one who has sole responsibility for her children, that, instead, both she and the children’s father have joint parental responsibility. This was introduced in 1975 by legislation called the Family Law Act. This brought into the arena of parents. Children and divorce are the principle of equal rights for both parents.
It would seem this was a curtailment of the assumption that mothers would automatically be granted custody of a child, and with control came their right to choose and make decisions that affected that child. The Family Law Act did not remove that entirely but instead moved it to where both parents had those rights jointly.
What the Family Law Act also did was to enshrine the principle that any ruling or order made, whether with the parents’ agreement or to settle any differences they had, would be made in the child’s best interests.
Now we must point out that although the main principle of joint parental responsibility is that a child should have the right to benefit from having a meaningful and healthy relationship with both of their parents, that does not exclude the possibility that, in some instances, that might not be possible.
The child also has the right to be protected too, and often that will mean being protected from harm, be that of a physical, psychological, or sexual nature. Although this is not 100% the case, in the vast majority of these instances, the father will perpetrate the harm.
Suppose a child’s mother feels that the child’s interests would not be served by them having regular, or even any, contact with their father. In that case, that needs to be discussed with her family lawyers and submitted to the Family Court if necessary. Sole parental responsibility is possible in patients with an abusive or violent father.
Alternatively, a mother can request that an Apprehended Domestic Violence Order be issued to prevent her ex from inflicting abuse, violence, and intimidation on her or her children, albeit these are issued through the criminal courts, not the Family Court.
Even though a mother may be sharing parental responsibility with the child’s father, in most cases, those children will likely live primarily with her. This takes us to another right mothers have, the right to receive parental support from the child’s father. This will depend on each parent’s financial position; however, she should accept that support if warranted.
Finally, if a mother has the opportunity to start a new job that requires her to relocate, she may apply for a relocation order. Given the position of family law regarding visitation, there is no guarantee this will be granted. However, if she can show that it would be in the best interests of her children to relocate, the courts may allow the relocation to proceed.