Divorce can undoubtedly be difficult for children and families, and after separating from their partner many women find themselves wondering what mothers’ rights are.
It is not a light decision, making the choice to separate and end a marriage or de facto relationship, particularly when there are children involved, and ensuring the welfare of their children is the main consideration for most parents.
In the past, the majority of child custody cases favoured the mother, with children perhaps seeing their father on weekends.
This is due to old-fashioned ideas about men as breadwinners and women as child carers.
Today, courts prefer to focus on shared custody and to establish which parent is the most suitable primary carer, regardless of whether they are the mother or father.
The basis of this comes from legislation made in 2006.
Family Law Amendment (Shared Parental Responsibility) Act 2006
Mothers’ rights do not technically exist within Australian family law. Fathers’ rights do not exist either.
This is because instead of focusing on the rights of parents, the family court instead makes the rights of children its highest priority in parenting cases.
Neither parent is treated preferentially and the court bases its decision on its consideration of the child’s best interests.
The best interests of the child will be explained in more detail below.
The main idea of the Family Law Amendment (Shared Parental Responsibility) Act 2006 is the presumption of shared parental responsibility.
This encourages co-parenting and stems from the belief that children deserve to enjoy meaningful relationships with both of their parents, as well as that a parent’s responsibility and duty of care for their child does not change if their marital status changes.
When the proceedings for making parenting orders begin, the court works with the assumption that it is in the child’s best interests to remain connected to both of their parents.
Being a mother or a father makes no difference.
Parents must show that they are willing to work together respectfully in order to achieve a result that reflects what is best for their child.
It is important to remember that parental responsibility is not the same as custody.
The parent the child lives with is not necessarily the parent who can make all major long-term decisions for them.
These decisions, such as where the child goes to school, medical treatment and cultural upbringing, are part of parental responsibility.
When equal shared parental responsibility is upheld, mothers and fathers need to make these decisions together.
Holding significant decision-making power for their child’s upbringing and life is part of mothers’ rights.
If the child’s father wants to make a major parenting decision with which the mother does not agree, she is able to stop such a decision from going ahead.
There are two main tenets of the best interests of the child in Australian family law:
A child has the right to benefit from a meaningful relationship with both of their parents
A child has the right to be protected from physical, psychological, emotional and sexual harm
The second point here is the more important one: if a relationship with one of their parents means the child is subjected to abuse – including exposure to, risk or the threat of abuse – then their contact with that parent will be limited.
Children have a right to know and to be cared for by both parents, hence the introduction of the presumption of equal shared parental responsibility.
Mothers’ rights to care for their children are therefore dependent on the children’s best interests.
During family law proceedings, it is important for mothers to show that they understand the best interests of their children and that they are willing to act to promote their interests and look after their welfare.
A parent who exposes their child to abuse has no right to a relationship with that child, as the child’s most important right to be protected from harm.
The focus on the best interests of the child reflects the United Nations Convention on the Rights of the Child, especially articles 3, 9 and 18:
All organisations concerned with children should work towards what is best for each child.
Children should not be separated from their parents unless it is for their own good. Children whose parents have separated have the right to stay in contact with both parents unless this might harm the child.
Both parents share a responsibility for bringing up their children and should always consider what is best for each child.
Concentrating on the children’s best interests shows that children’s rights are more important than fathers’ rights or mothers’ rights.
What Else Affects Mothers’ Rights In Parenting Orders?
Although they matter greatly, the child’s best interests are not the sole consideration in determining the outcome of parenting orders.
The court takes many other factors into account, such as the parents’ and children’s views.
These factors include:
How the child feels about the proposed custody arrangements
How willing both parents are to encourage a continuing relationship between the child and the other parent
The parents’ and child’s current lifestyle
How well the parents can provide for the child’s needs
What both parents think about parental responsibilities
Current family violence orders or evidence of family violence
Each case is considered on its own according to that particular couple’s situation.
The court can exercise its discretion when deciding how much weight to accord each factor.
During the custody proceedings, it is important, as a mother, to keep a focus on the children’s best interests.
Women have the right to be protected from violence and to protect their children from violence, including abuse that occurs in their own home due to another family member.
An ADVO is an order that prevents someone from committing future acts of violence against the protected person.
These orders are not in the jurisdiction of family law but come instead under criminal law.
In her application for an ADVO at the Local Court, the mother who wants protection from abuse by the father or another family member must show that she fears violence, intimidation or stalking committed by the other person and that this fear is based on reasonable grounds.
The court will then determine whether the other person’s behaviour warrants an ADVO.
The court can specify the period of time for which the ADVO will last. If no time period is specified, the ADVO remains in force for one year.
During this time, the defendant against whom the order has been made is bound by the contents of that order.
Any contravention of the ADVO will result in a penalty.
The maximum penalty is two years in jail.
As with order court processes, it may be a rather long wait between the initial application for the ADVO and the final orders.
The person wishing to be protected can request interim orders if they urgently need protection.
Interim orders are immediately enforceable and will protect the person until all evidence has been heard and final orders have been made.
In some circumstances, the court is obliged to make an ADVO, whether or not an application has been made.
If the defendant pleads guilty or is found guilty of stalking, intimidation or a domestic violence offence, the court must protect the victim with an ADVO.
Many mothers receive full or primary custody of their children.
As both parents are responsible for the financial support of their child, regardless of marital status, a mother is entitled to receive payments from her former spouse that go towards the benefit of the child.
The child has a right to be cared for by their parents, and this includes financial support, and both parents retain this responsibility when they separate.
The Department of Human Services looks after child support.
The amount of child support to which a mother is entitled depends on the contributions made by the mother and the father, their current incomes and the amount of time they spend with the child.
Child support is money paid for the benefit of the child.
Payments made to benefit a former spouse are called spousal maintenance.
After a divorce, many women find that they are financially far less well-off than their former husbands, particularly if they spent a lot of time caring for their children.
This can affect their future income earning capacity and their ability to support themselves.
Mothers’ rights include entitlements to spousal maintenance in situations where it is warranted.
Not everybody receives spousal maintenance after a divorce.
It depends on one party’s reasonable needs and the other party’s capacity to pay.
For both spouses, the court will consider:
Age and health
Income and financial resources
Ability to work
What is a suitable standard of living
Whether the marriage has affected income earning capacity
Who any children live with
When a person receiving spousal maintenance payments starts a new relationship, the court will review the spousal maintenance orders and reconsider if the person can adequately support themselves.
It is not uncommon for people to wish to relocate with their children after a divorce. This is an important part of mothers’ rights.
For example, a woman may be given primary custody of her child and wish to move somewhere else, even overseas.
However, the parent the child lives with may not be the only parent who has parental responsibility.
In the interests of promoting parental cooperation and privileging the child’s right to know and be cared for by both parents, the family law system encourages parents to come to an agreement together.
If the child’s father retains parental responsibility – meaning he must be involved in major long-term decisions regarding the child – and does not agree that the mother and child should move, the mother will then need to make an application for relocation orders to the family court.
As with other parenting issues, the court will principally consider the child’s best interests and their welfare. They will balance mothers’ rights with the child’s best interests.
This includes factors such as the short- and long-term effects of relocation on the child and the effect of relocation on the child’s relationships with their parents.
The court may not make orders in favour of relocation.
The other side of this is when the father prevents the child from seeing the mother or removes the child from the country without the knowledge or prior agreement of the mother.
The mother can then apply for recovery orders, as part of mothers’ rights.
The mother can make an application in either the Family Court or the Federal Circuit Court.
The application should include an affidavit that details:
Where the child usually lives
Previous court hearings and orders
The circumstances of when the child was removed from or not delivered to the mother’s care
Ideas about where the child might be
Why it is in the best interests that the child be returned to the mother