What Are a Mother’s Rights When It Comes to Child Custody in Australia?

Separation or divorce can be emotionally draining and difficult. When there are children involved, this can add another layer of complexity and stress. As Family Lawyers, one of the most common questions we hear from a separating parent is in regards to parents' rights, such as, ‘Are child custody rights for fathers different from mothers?’. In this blog post, we'll answer the question: “what are a mother’s rights when it comes to child custody in Australia?”. It’s a valid question, but one that requires further exploration in order to answer. Our Family Lawyers share some information below.


What Does The Law Say About Mother's Rights and Child Custody in Australia?

Technically speaking, a mother’s rights regarding child custody do not exist in Australia. In the same vein, a father’s rights do not exist either.

That’s because the law focuses on the rights of children first and foremost. This wasn’t always the case though: the change in emphasis from parents’ rights, to the responsibilities they have towards their children, was brought about via the Family Law Amendment Act 2006 which introduced the term “shared parental responsibility” to Family Law Act 1975.

Thereafter, the Court considers the best interests of each child first, with no preferential treatment given to either parent. The Courts believe that children should have a meaningful relationship with both parents where possible.

These parenting arrangements were previously called ‘custody’ arrangements. While these terms are no longer used in Australian family law, many parents still use the term colloquially when navigating a separation.


What is Shared Parental Responsibility?

As per the Family Law Act 1975, there is a presumption that both parents will have an equal parental responsibility. This is ordinarily the case regardless of whether the parents are married, in a de facto relationship, have never been in a relationship or otherwise.

This means that both parents will have a role in the decision making process when it comes to major long-term issues.

Section 61B of the Act defines Parental Responsibility “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

Under the definition, this includes:

  • making decisions about the children’s upbringing, religion, and education;
  • disciplining the children;
  • consenting to the children being adopted;
  • applying for a passport or visa for the children;
  • taking legal proceedings on behalf of the children.

Grounds For Terminating Parental Rights in Australia

There may be instances where a court believes it is in a child’s best interest to terminate the parental rights of one or both parents. It may be that the mother’s rights are terminated, or the father’s rights, or even both.

These rights might be taken away if either parent violates the law, or the father fails to claim paternity. In some instances, a parent, or parents, may also choose to voluntarily give up these parental rights.

Each state has their own law regarding the termination of mothers’ or fathers’ rights in relation to child custody in Australia.

In Queensland, as in most other parts of the country, the most common involuntary termination of parental rights is due to:

  • Severe abuse or neglect
  • Sexual abuse
  • Abuse or neglect of other children in the household
  • Abandonment
  • Long-term mental illness or deficiency of the parent(s)
  • Long-term alcohol or drug-induced dependency of the parent(s)
  • Failure to support or maintain contact with the child

A parent can also lose their parental rights after being convicted of certain crimes.

If you as a parent believe the other parent’s rights should be terminated, you will need to apply for an order for ‘sole parental responsibility’.


Applying For Sole Parental Responsibility

Sole parental responsibility means that one parent has full decision-making powers regarding their children. Whether you are the mother or father looking to take on sole responsibility of your child or children, you can apply.

To receive sole parental responsibility, you must show the Court evidence that it would not be in the best interests of the child if equal shared parental responsibility is given.

An order for ‘sole parental responsibility’ may set out the following:

  1. That one parent can make all or most decisions regarding their children’s lives, without needing to consult the other parent;
  2. That the children will live with one parent full time; and
  3. How much contact the children will have with the other parent.

Sole responsibility does not automatically mean that the other parent has no access whatsoever to their children; this will only be the case if it is shown that the children would be in danger if access is given.


Still Have Questions About A Mother’s Rights When it Comes to Child Custody in Australia?

If you are negotiating parental obligations, our experienced family lawyers can work with you to ensure the best possible outcome. We have over 30 years’ experience dealing with family law issues, as well as matters relating to divorce and spousal maintenance. Our lawyers are familiar with situations involving mother's  rights and child custody and sole parental responsibility in Australia, and are here to help. Please contact us to make an appointment for an initial telephone call. You can also call us to speak to one of our Brisbane specialist family lawyers (07) 3144 1641 or one of our Gold Coast specialist family lawyers (07) 5526 3646.