If you have been searching for mothers’ rights, you are probably worried about something specific: whether your children will live with you, whether you can make decisions about their schooling or health, or what happens if you and your former partner cannot agree. Those are the right questions. But I want to start with something that surprises many of my clients. Australian family law does not give mothers, or fathers, rights over their children at all. The Family Law Act 1975 deliberately speaks of the responsibilities parents have, and the rights of the child. Once you understand that, the rest of the law makes much more sense.
The Law Changed in May 2024, and Much of What You Will Read Online Is Out of Date
On 6 May 2024, the Family Law Amendment Act 2023 made the most significant changes to Australian parenting law in nearly two decades. Two long-standing rules were repealed entirely.
- The presumption of equal shared parental responsibility, in the former section 61DA, no longer exists. Courts are no longer required to start from any presumption about how decision-making should be shared.
- The requirement to consider equal time, or substantial and significant time, in the former section 65DAA, has also been repealed. There is no statutory pathway that pushes towards any particular division of time.
Any parenting matter decided by a court today is decided under the new framework. If a website, a friend, or a former lawyer’s advice refers to ‘equal shared parental responsibility’ as a presumption, that information is out of date.
What the Law Says Now
Three provisions do most of the work.
- Each parent has parental responsibility for a child under 18 (section 61C). Separation does not change this. It continues unless and until a court orders otherwise, and importantly it belongs to each parent individually, not to mothers or fathers as such.
- Parents are encouraged to consult each other about major long-term issues, things like schooling, health care and religion, if it is safe to do so, with the child’s best interests as the paramount consideration (section 61CA).
- If a court makes an order for joint decision-making on major long-term issues, the parents must consult and make a genuine effort to reach a joint decision on those issues (section61DAA). Day-to-day decisions, like what the children eat or watch while in your care, remain yours alone when the children are with you.
How a Court Decides Where Children Live and How They Spend Time
There is now a single question: what is in the child’s best interests? Section 60CC sets out six general considerations, with no hierarchy among them:
a) what arrangements would promote the safety of the child and of each person who cares for the child, including safety from family violence, abuse and neglect. The court must consider any history of family violence and any family violence order, past or present;
b) any views expressed by the child;
c) the child’s developmental, psychological, emotional and cultural needs;
d) the capacity of each person who has, or is proposed to have, parental responsibility to meet those needs;
e) the benefit to the child of a relationship with both parents, and with other significant people such as grandparents, where it is safe;
f) anything else relevant to the particular child’s circumstances.
For an Aboriginal or Torres Strait Islander child, the court must also consider the child’s right to enjoy their culture and the support the proposed arrangements give to that right.
So What Does This Mean for You as a Mother?
It means the outcome turns on your child’s circumstances, not on your gender, and not on any starting presumption in anyone’s favour. In practice, some things that matter a great deal under the six considerations include who has been meeting the children’s day-to-day needs and how well; the stability of each home; each parent’s capacity to support the children’s relationship with the other parent where that is safe; and, above everything else, safety. If there has been family violence, the Act now puts that squarely at the front of the analysis.
A short example. Suppose the children, aged seven and nine, have lived mainly with their mother since separation, and their father seeks a week-about arrangement. No presumption operates in either direction. A court would look at the children’s ages and needs, the practicalities such as the distance between homes, school and each parent’s work, the children’s views, and each parent’s capacity, and would craft the arrangement those particular children need. The answer might be week-about; it might be primary residence with one parent and substantial time with the other. The law no longer nudges the court towards any template.
Do Mothers Win Custody More Often?
You may have heard that the courts favour mothers. The honest answer is that in many families the mother has been the primary carer, and continuity of care is often important to young children, so arrangements frequently reflect that history. That is the six considerations at work, not a preference for mothers. Where fathers have been equal or primary carers, orders reflect that too. The word ‘custody’ itself no longer appears in the Act; courts make ‘live with’, ‘spend time with’ and ‘parental responsibility’ orders.
Where to From Here
If you can reach agreement with your former partner, the law encourages exactly that, and an agreement can be made binding through consent orders. If you cannot, or if safety is a concern, get advice early. The first conversation is usually about protecting what matters and understanding your position, not about going to court.
I have practised family law since 2008, first as a barrister and now as the principal of this firm. If any of the above touches your situation, we offer an initial consultation where we can talk about your children, your circumstances, and your options.
Book a free consultation today to discuss your situation and protect your rights – ensuring the best possible outcome for both you and your child under Australian family law.
