What if a mother leaves her child with father?

Under Australian family law, children have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm.

Table of Contents Show

Parental responsibility
Parenting time
Best interests of the child
Financial responsibility for children
Your child’s wellbeing
Related links
What Does Legislation Say About Father’s Rights?
The Best Interests of the Child
How Can a Father Win Custody of His Child?
What About Legal Rights to an Unborn Child?
What If the Mother Withholds the Child?
Speak to Our Family Lawyers About Father’s Rights After Separation in Australia

The Family Law Act 1975 is gender-neutral, and does not make assumptions about parenting roles.

When a family court is making a decision about a child, the court will make an order that is in the best interests of the child.

To talk to someone about your children and your family law matter, please contact:

Parental responsibility

Parental responsibility means all of the duties, powers, responsibilities and authority that parents have in relation to their children.

Each parent ordinarily has parental responsibility for the child regardless of whether they are married, in a de facto relationship, never in a relationship or otherwise. This means that both parents can independently make decisions about the child.

When the parents of a child under the age of 18 separate, they both continue to share parental responsibility for the child in this way.

If the parents would like to create a legal obligation to jointly make major long-term decisions relating to the child's welfare and upbringing, they should make or request a court order for Equal Shared Parental Responsibility'. 'Major long-term issues' includes things like where a child will go to school, major health decisions, and religious observance.

Equal shared parental responsibility is not the same as equal time.

A court may decide it is in the best interests of the child to remove parental responsibility from one or both parents. A court can also decide to assign parental responsibility to a legal guardian.

Parenting time

There are no hard and fast rules about making arrangements for which parent a child will live with or spend time with after their parents separate.

This used to be called making ‘custody’ or ‘contact’ arrangements. These terms are no longer used in Australian family law.

There is no rule that children must spend equal or "50:50" time with each parent.

In most cases, it’s best that both parents discuss their child’s individual needs, and come to their own agreement about where a child will live, and how they will spend time with their parents.

There are all sorts of different ways that separated families can make sure that their children have ongoing relationships with both of their parents. If you and your former partner agree on the future arrangements for children, you do not have to go to court. You can make a parenting agreement or obtain ‘consent orders’ for parenting orders approved by a court.

The Parenting Orders - what you need to know Handbook provides advice to parents about how to develop and obtain parenting orders.

For more information see Parenting Agreements and “How do I apply for Parenting Orders?”

You may also wish to seek legal advice.

Best interests of the child

When making decisions about children, what matters the most is that parents focus on what would be in the best interests of their child.

Most separated or divorced parents successfully agree on their own arrangements for the care of their children after joint discussions.

If parents can’t agree on arrangements for children after separation, specialist family mediation services can help parents come to a mutually agreeable decision or compromise.

If parents still can’t agree, a judge in a family law court will make a decision. The judge’s decision will be based on the best interests of the child in accordance with the Family Law Act.

Financial responsibility for children

Both parents also have a duty to support the child financially after separation, regardless of who the child lives with. Parents can manage this between themselves or apply for a child support assessment.

The Department of Human Services administers the child support program, assisting parents to provide support for their children.

Information about the child support program is available at the Department of Human Services’ website.

Your child’s wellbeing

It can be hard for children when their parents separate. It is important that you focus on what is best for your children right now, and into the future.

Don’t criticise your children’s other parent or pressure your children to make decisions about their own care. Children love their parents and it can be harmful to put them in a situation where they feel that they have to choose between their parents.

Jesse and Shayna were in a dating relationship for five months, during which time Shayna became pregnant, but they broke up shortly afterwards. When baby Jade is born, both Jesse and Shayna will share parental responsibility for Jade and will share in making decisions about Jade's welfare.

Jesse and Shayna are no longer together, but they continue to share parental responsibility for their baby girl Jade, who is currently 6 months old. Jesse and Shayna have discussed what is best for Jade and reached their own agreement about where she will live and spend time. Jade lives with Shayna, who is still mostly breastfeeding Jade. Jesse spends time with Jade twice a week, on Wednesday evenings and Sunday mornings. Jesse takes her for a walk in the pram to the local park, feeds her, changes her nappy and puts her down to sleep. As Jade grow into a toddler, Jesse and Shayna have agreed that Jesse will spend more time with Jade.

Legal advice

Federal Circuit and Family Court of Australia – Children

Parenting Orders - what you need to know

Next steps

Make a parenting agreement with the other parent.

Or consider if you prefer to have Parenting Orders by consent, approved by a court.

Check out the Parenting Orders - what you need to know Handbook for advice and examples about making parenting orders.

If you can’t agree, seek family mediation and /or legal advice.

There is a common misconception that when a couple separates or divorces, the Court will automatically favour the mother for primary custody and parental responsibility. Every case and relationship is unique, and as long as you are seeking parental rights that are in the best interests of the child, then the Court might make a decision in favour of the father. Here is what you need to know about father’s rights after separation in Australia.

What Does Legislation Say About Father’s Rights?

The Family Law Act 1975 does not specify that one gendered parent will receive more parental responsibility than the other parent after separation. In fact, legislation presumes that both parents have equal shared parental responsibility and have a role in making major, long-term decisions such as school and health issues. The father’s rights after separation are equal in Australia, meaning, a father could have at least 50% time with their child. Both the mother and the father can make a parenting agreement or obtain a consent order regarding parental responsibility. However, the Court will always prioritise the safety of the child, and if there is concern that the child’s safety is at risk with either parent, then the Court will most likely rule in the other parent’s favour.

The Best Interests of the Child

As with all family law issues, in order to determine the mother or father’s rights after separation, the Court will always focus on what would be in the best interests of the child.

Section 60CC of the Family Law Act 1975 states that the Court determines the best interests of the child based on the following primary considerations:

“the benefit to the child of having a meaningful relationship with both of the child’s parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

Other considerations include the child’s relationship with each parent, how much each parent is willing to participate in making long-term decisions, and any views expressed by the child.

How Can a Father Win Custody of His Child?

In order for the father’s rights after separation to include full custody of his children, there are two clear options.

Firstly, if both parents agree that it is best to split custody of their children, or for the father to receive more than 50% custody, then you can make a parenting plan without having to go to court to formalise the agreement.

If the parents cannot agree on a custody schedule, then it is up to the Family Court to determine whether or not it is in the best interests of the child to live with the father. The Court will hear submissions from both parents as to why they should receive equal or sole custody of the child, and then make a final decision with a parenting order. However, both parties must first attend Mediation or Collaborative Law where a mediator will attempt to bring the mother and father to an agreement. Only then can an Order be submitted to the Court and become legally binding.

What About Legal Rights to an Unborn Child?

The father’s rights after separation are limited in Australia in relation to an unborn child. Section 67B of the Family Law Act 1975 refers to the father making a proper contribution towards: the maintenance of the mother for the childbirth maintenance period; the mother’s reasonable medical expenses in relation to the pregnancy and birth; the reasonable expenses for the mother’s funeral if the mother dies and the death as a result of the pregnancy; and the reasonable expenses for the child’s funeral if the child is stillborn or dies and the death is related to the birth.

The Courts have no power to make an Order in relation to an unborn child. The father of an unborn child has no legal standing to prevent a pregnant woman from moving between States and Territories up until the birth. Once the child is born, the child also has rights, and their rights may impact their mother’s rights. The mother and father can then apply to the Court for any Orders relating to parenting arrangements.

What If the Mother Withholds the Child?

If you, as the father, find yourself in a situation where the mother is withholding your child, then you may be able to apply for a Contravention Application. A father can send this application to the Court, notifying them of the breach of the parenting order. The Court may then require the mother withholding the child from the father to pay a fine or compensate for lost time. The only instances where it is acceptable to withhold a child from the other parent is if the other parent is violent towards the child, taking drugs in front of the child, there is risk of child being exposed to sexual abuse, and the other parent may expose the child to harm.

Speak to Our Family Lawyers About Father’s Rights After Separation in Australia

Father’s rights are just as important as mother’s rights after separation in Australia. It is not uncommon to hear that fathers feel disadvantaged by Australia’s legal system. We are here to tell you that your rights matter, especially if you believe that your child will be better cared for in your custody. Please get in touch with our team of specialist family lawyers to see how we can help your case.