Understanding Parents Rights in Australia
While parents’ rights in Australia are important, to understand them first requires an appreciation for children’s entitlements. Children are entitled to be safe, educated, given medical care, treated with affection and protected against abuse. A child’s guardians have a duty to defend these entitlements until the child is a legal adult.
This refers to the authority to make choices around the care, development and welfare of a child. The national family law outlines the following responsibilities:
- To provide education
- To provide financial support
- To provide supervision and safety
- To provide food, shelter and clothing
- To provide medical care
- To protect the child from harm
Those who are guardians by birth, adoption, artificial conception or surrogacy are the only people considered to have this (legally binding) responsibility. Other people, such as step-mothers or step-fathers, are not recognised as having final authority or parents’ rights in Australia by the court.
This responsibility continues until the child becomes an adult, not after separation or divorce. Both the mother and father are legally required to exercise their responsibilities for their child after separation, regardless of how much time they spend with their child.
Parents’ rights in Australia
The national family law gives parents rights in Australia, allowing them to raise their children based on their personal values and beliefs. Things like religion, choice of medical treatment, choice of discipline and education are up to the mother and father – their choices will not be interfered with unless the wellbeing and safety of the child is at risk (e.g. if there is evidence of neglect or abuse or a lack of quality education). Working mothers and fathers are entitled to child-care services and to be able to access information on services and payments they are eligible for.
Parents’ rights in Australia do not include the entitlement to sole custody of their children after a separation or divorce. In the situation that a court order is requested, the court will consider a number of factors in the best interest of the child when determining who spends how much time with the child. If a guardian has a history of neglect, violence or abuse towards the child then their contact with the child and parents’ rights in Australia may be restricted.
Factors considered by the court in child arrangements
To determine what is in the best interest of the child, the court will consider these factors when making their decision:
Benefit of having a relationship with both guardians
It is considered highly important that the child has a meaningful relationship with both their guardians wherever possible.
Protecting the child from harm
It is essential that care arrangements do not put the child at risk of physical or psychological harm, violence, neglect or abuse. This overrides the importance of having a relationship with both guardians and other parents’ rights in Australia.
The wishes of the child
Naturally, the court considers the wishes of the child when determining custody. However, factors such as the child’s age and level of maturity are also taken into account as this can affect their ability to understand the situation.
The quality of the child’s relationship to their guardians
The history and current nature of the child’s relationship with both their guardians is considered in the court’s decision.
The effect of a change in circumstances
The court also assesses how being separated from a certain guardian and/or people associated with that guardian (e.g. siblings) might impact the child.
Practical challenges that could arise if one guardian is given majority custody, such as barriers to finances, education or lifestyles, are also considered.
Guardians’ ability to provide
The court will assess each guardian’s ability to cater to their child’s intellectual and emotional requirements, especially if the child has a disability.
Guardians’ attitudes and commitment
The court also examines each guardian’s level of commitment and support for their child.
History of violence or abuse
Any instances of family violence, abuse or neglect will be taken into consideration when determining who will spend how much time with the child by child custody mediation. This may override parents’ rights in Australia.
As each case is different, the court will assess all factors they consider relevant before making their final decision.