The rights of mothers and fathers after separation or divorce in Victoria are important to know. What rights do mothers have after separation? Fathers? Is there even a difference?

Are There Separate Rights for Mothers and Fathers in Australia?

Technically, no. There are no actual rights for ‘mothers’ or ‘fathers’ at all! Instead, mothers and fathers are both seen as ‘parents’ according to the Family Law Amendment (Shared Parental Responsibility) Act 2006.

What this means is that the gender of each parent is, all things being held equal, completely irrelevant. The presumption is based on shared parental responsibility and as such custody rights are determined with the idea that both parents should share custody rights and that the child/children deserve to be spending time and developing quality, meaningful relationships with both parents.

What the court cares about is that both parents are demonstrating that they will strive towards a respectful arrangement in terms of child custody. The most important thing, in the eyes of the court, is that the outcome of the child/children is best, which often means granting child custody according to terms that benefit the child/children.

Parental Responsibility vs Child Custody

Perhaps you’ve heard parental responsibility and child custody being used somewhat interchangeably. Colloquially, that might be fine since both pertain to the wellbeing and upbringing of the child.

There is a difference, however:

• Parental responsibility: all of the decisions made about a child’s upbringing and wellbeing by one parent or the other contribute towards parental responsibility. Where the child goes to school, their religious observances, choice of medical treatment, or how much screen time they’re permitted in the evenings are all examples of parental responsibility. When both parents agree, no problem! When one parent disagrees with the other parent’s decision(s), however, there will be an inevitable clash of interests that can lead to litigation.
• Child custody: in Australian family law, child custody is centred around two main tenets for children. Firstly, the child has the right to a meaningful relationship with both of their parents. Secondly, the child has the right of protection from abuse and violence, including physical, sexual, and emotional. If these two rights are infringed, the other parent can take action on the basis of an abuse of child custody rights.

But Are There Really No Differences Between Mother’s and Father’s Rights?

Before 2006, the vast majority of separation cases favoured mothers since they were traditionally seen as the primary caregivers for their children whilst men were seen as the breadwinners. That may have changed, at least in terms of definitions, with the Shared Parental Responsibility amendment in 2006, but old habits die hard.

Yes, it is true that even though the definitions have changed to simply ‘parents,’ mothers statistically end up being favoured for full or primary custody of their children. There are many activists pushing for more men’s rights with regards to these matters, especially when unfavourable cases leave fathers with little to no access to their offspring.

No matter whether you’re a mother or a father, the best course of action to obtain a favourable outcome with regards to child custody is to retain the services of a qualified team of family law experts.

National Family Lawyers

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