One of the subjects that a family lawyer will be most asked about will come from mothers enquiring what their rights are with regards to 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 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 custody, came their right to choose and make decisions that affected that child. What the Family Law Act did what not take that right away completely, but instead moved it to where both parents jointly had those rights.
What the Family Law Act also did was to enshrine the principle that any ruling or order that it made, whether with the agreement of the parents or to settle any differences they had, would be made in the best interests of the child.
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 cases, in the vast majority of these instances it will be the father who is perpetrating the harm.
If 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, then that needs to be discussed with her family lawyers, and if necessary, submitted to the Family Court. Sole parental responsibility is a possibility in cases where there is 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 it is likely that those children will be live primarily with her. This takes us to another right that mothers have and that is the right to receive parental support from the child’s father. Obviously, this will depend on each parents’ financial position, however, if it is warranted, she should receive that support.
Finally, if a mother has the opportunity to start a new job that requires her to relocate, she may apply for a relocation order. There is no guarantee this will be granted, given the position of family law with regards to visitation. 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.