+61 2 9929 8840
    Posts Tagged :

    parental responsibility

    Unplanned Pregnancy: Your Obligations as a ‘Parent’ 1024 671 Dorter

    Unplanned Pregnancy: Your Obligations as a ‘Parent’

    Becoming a parent isn’t always planned. While some people may meticulously plan when they have children, for others, pregnancy and parenthood can come as a surprise, such as a one night stand resulting in a pregnancy.

    In situations where an unplanned pregnancy occurs and a child is born, it’s common for questions to arise about responsibilities and obligations.

    In this article, we’re exploring the topic of unplanned pregnancy, parenthood and the obligations of biological parents.

    Am I a parent? And if I did not consent to the birth of a child, do I have any obligations?

    Where a child is conceived unintentionally, and irrespective of whether you agreed to the child’s birth or not, you may be liable to pay certain costs associated with the child’s birth and maintenance over the subsequent 18 years.

    In Australia, a presumption of parentage arises in a number of circumstances: –

    • when your name is recorded on the child’s birth certificate and thus in a register of births, you are presumed to be a parent of the child; or
    • if a child is born while you are married to the mother of the child, you are presumed to be a parent of that child; or
    • if you are living with the mother of the child beginning 44 weeks and ending 20 weeks before the birth of the child, you are presumed to be a parent of that child.

    One might assume that refusing to admit that you are the father of a child would release you of some or all of your parenting obligations. However, the mother can still apply to the Federal Circuit and Family Court of Australia and seek a declaration of parentage.

    Evidence such as DNA parentage testing can rebut the presumption of parentage and the Court can issue a declaration of paternity.

    What if the DNA parentage testing confirms you are the father?

    If a person is found to be the biological father of a child through DNA parentage testing, various obligations arise.

    Liability During and After Pregnancy

    You, as the father, may be liable to contribute towards the maintenance of the mother and the mother’s reasonable medical expenses in relation to the pregnancy and birth. Such expenses will commence either two months before the child’s due date or from an earlier date if the mother stops working based on medical advice related to the pregnancy. The period ends three months after the child’s birth. This is classified as the ‘childbirth maintenance period’ under section 67B of the Family Law Act 1975 (Cth) (“the Act”).

    In deciding what amount is appropriate, the Court will consider the following: –

    • income earning capacity, property and financial recourses of the mother and father;
    • the parents’ necessary commitments for supporting themselves, any other child or other person;
    • any special circumstances which if not taken into account would result in injustice or hardship to any person.

    When deciding on an amount payable by the father, the Court will not take into account any income-tested pension allowance or benefits that the mother is entitled. Nor, will the Court take into account expenses associated with the child, such as baby items. These are not categorised as ‘maintenance of the mother’, whereas the mother’s living costs may be considered.

    Parenting and Child Support

    A common question that arises is whether a father is required to pay child support if he did not agree to the child’s birth.

    Child Support

    As a parent, you may be liable to pay child support up until your child attains 18 years of age, particularly if the mother has the primary care of the child.

    In certain circumstances, it may be appropriate to enter into parenting orders by consent or execute a Binding Child Support Agreement (“BCSA”) pursuant to section 80C of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”).

    There are two principal ways in which a mother can receive child support:-

    • by applying to the Child Support Agency for an administrative assessment in accordance with the Assessment Act; or
    • by applying for the acceptance of an agreed BCSA under Pt 6 of the Assessment Act.

    An administrative assessment is based on the parents’ taxable income, how many nights the child spends with each parent, and the age of the child. If you refuse to pay child support as assessed, the amount becomes a debt due and payable and can result in legal action being brought to recover the debts.

    A BCSA can be a more appealing alternative for you as opposed to being assessed by the Child Support Agency. The benefit of a BCSA (entered into after each parent has received independent legal advice) is that it provides certainty as to any child support payable, is an arrangement that suits each parents’ particular circumstances and can be a substitute for any child support assessment.

    What if I am not the father and the mother has applied for a Child Support Assessment?

    If you do not believe that you are the father of the child and thus not liable to pay child support, an application can be made to the Court for a declaration under section 107 of the Assessment Act. The Court may order DNA testing prior to making such a declaration.

    Is the law any different for a child of a de facto partner?

    You may be considered to be in a de facto relationship if you are a couple living together on a genuine domestic basis.  The birth of a child can affect whether a relationship may be defined as being a de facto relationship for the purpose of claim for property settlement or spouse maintenance.

    The Act makes provision for parentage of children of de facto partners. One scenario that arises is if your de facto partner adopted a child and you consented to the adoption, you are considered to be a parent of that child.

    Another scenario that can occur is where a child is born as a result of artificial conception. For instance, by way of artificial insemination or the implantation of an embryo in the body of a woman. At the time the child is conceived, if you are in a de facto relationship and you consented to the artificial conception, you are considered to be a parent of the child.

    What rights do both parents have in relation to the child?

    Under Australian family law, both parents hold joint parental responsibility for their child, regardless of the circumstances of their conception. This means that both parents have a right to be involved in making important decisions about the child’s life, even if the child was conceived from a one night stand. These decisions encompass various aspects, including education, medical treatment, and religious upbringing. The law acknowledges the importance of fostering a meaningful relationship between the child and both parents.

    What if you don’t have a relationship with the person but you wish to be involved in the child’s life?

    When a child is conceived as a result of a one night stand and there is no established relationship between the parents, the question of involvement in the child’s life often arises. The Australian family law system does emphasise the importance of joint parental responsibility and the child’s best interests.

    Parenting plans and arrangements become essential tools in such cases. While you may not have a pre-existing relationship with the other parent, it is still possible to develop a parenting plan that outlines how you both intend to share parental responsibilities. These plans are tailored to the unique circumstances of each situation and can help define the roles, responsibilities, and time-sharing arrangements between parents.

    In a situation where you have no relationship with the other parent, you may face unique challenges in these circumstances. We highly recommend seeking legal advice from experienced family lawyers so that you know the options available to you.

    Do I have to be involved with making decisions for this child?

    Even if the child’s conception was unplanned and arose from a one night stand, both parents are expected to share in making significant decisions about the child’s life. However, the law does not require each parent to make equal or positive contributions to these decisions. The way you handle your parental responsibility is unique to your situation, however, we highly recommend seeking legal advice to ensure that you are fulfilling your legal obligations.

    Do I have to spend time with the child?

    While the child’s conception might have been unplanned, both parents still have a responsibility to consider the child’s best interests. This includes the child’s right to have a meaningful relationship with both parents. Deciding not to spend time with the child is a significant choice and should be made thoughtfully, as it may impact the child’s emotional well-being and development.

    Is there such a thing as entrapment in Australia?

    It is important to note that entrapment is not recognised as a legal defence in the context of unplanned parenting resulting from one night stands under Australian family law. Regardless of the circumstances of conception, the focus remains on the best interests of the child and the legal rights and responsibilities of both parents.

    Seeking Legal Advice

    Ultimately, each scenario is unique and determining the steps to take when faced with an unplanned or unexpected birth can be challenging. Whether it is determining what costs you may be required to pay the mother, if you need to file an application seeking a declaration of paternity, or you wish to execute a BCSA, discuss your situation with us at Dorter Family Lawyers & Mediators. We understand that parenting is complicated at the best of times, even more so when it is completely unexpected and our firm is well-versed in these areas and highly experienced in all areas of Family Law.

    Parental Responsibilities and the Rights of a Child 611 373 Dorter

    Parental Responsibilities and the Rights of a Child

    Parenting is rewarding but it is rarely easy. It can be made even more challenging when you and your child’s other parent are not in a relationship.

    Whether you’ve recently separated from your child’s other parent, or you were never in a long-term relationship with them, chances are that as parents you’ve had disputes arise between you.

    When it comes to parenting after separation, disputes regarding living arrangements and being able to spend time with your children are common. There is also a common misconception that as a parent you have certain rights by law to be able to control these aspects, however, the family law system, governed by the Family Law Act 1975, affords rights to children and responsibilities for the parents to children.

    What does this mean for you as a parent? In this article, we’ll discuss the concept of parental responsibility in Australian family law. We’ll also discuss the rights of the child and how this impacts your responsibility as a parent.

    Parents rights, responsibilities, and the law

    The Family Law Act 1975 is the main legislation of the Australian Family Law system and includes information about the various matters that may arise for families in Australia and how they should be handled, especially when disputes arise.

    When parents of a child separate, they are often concerned about their rights, usually in relation to being able to see and spend time with their child. While the family law system in Australia certainly encourages meaningful relationships between parents and children, the parents do not have dominant rights in the legislation.

    In parenting matters, children have rights and parents have responsibilities, these responsibilities are known as parental responsibility. Parental responsibility involves parents having the duty, responsibility, and authority to make major decisions for their children, such as those relating to the child’s health, education and living arrangements. The aim is that the parent’s responsibility to make these decisions is to ensure the child benefits from them rather than the parent.

    What are the rights of a child?

    Children have numerous rights in Australia with the aim being to ensure the child’s wellbeing – their physical, emotional and psychological wellbeing – is protected.

    When matters impact a child, according to the Australian family law system, a decision should be made with the best interests of the child in mind. Two key primary considerations and a number of other considerations help to guide parents and lawmakers when making decisions that are in the best interests of the child.

    The primary considerations are:

    • The benefit of the child of having a worthwhile and meaningful relationship with both of their parents.
    • The need to protect a child from the risk that they may suffer any harm, whether physical or psychological. This includes the need to protect them from being subjected to or exposed to any form of abuse, neglect or family violence.

    While the family law system encourages the relationship and presence of both parents in a child’s life, of these two primary considerations, the second one is given more weight.

    Other considerations of the best interests of the child include:

    • The child’s views (depending on age, maturity and understanding of the situation)
    • How the child relates to their parents and other important persons.
    • The willingness and ability of the parents to facilitate their child’s relationship with the other parent.
    • The effect of any change in circumstances of the child.
    • Each parent’s ability to look after the child’s needs.
    • Each parent’s attitude to the child and their parental responsibilities.
    • Any domestic violence incidences or orders involving either the child or a family member.

    What exactly is parental responsibility?

    Parental responsibilities are the powers, responsibilities, and authority that a parent has in relation to the child by law. Protecting the child’s wellbeing is the main goal of parental responsibility and involves parents having a say in the major decisions that will have a long-term effect on the child and ultimately coming to a decision together.

    Major long-term issues are those that may have a long-term or lasting impact on your child’s care, welfare and development. It may include decisions about religion, their name, living arrangements, education, and their health.

    Unless there is an Order stating otherwise, both parents have parental responsibility and can have a say on these major decisions, even if the parents are separated. This is known as equal shared parental responsibility.

    This means that even though you and your child’s other parent may no longer be in a relationship, you cannot make a major long-term decision for your child without the agreement of the other parent. If you’re unable to make a decision, you may be able to apply to Court to have the Court decide for you.

    While there is the presumption of equal shared parental responsibility, sometimes, it’s not in best interests of the child for both parents to have parental responsibility and one parent may be designated sole parental responsibility. This may occur where abuse, negligence and/or family violence exists.

    Sole parental responsibility is sometimes referred to as sole custody, however, the correct legal term to use is sole parental responsibility and this means that the duties, responsibilities and powers of making long term decisions for the child rests with one parent.

    Who can have parental responsibility?

    As families can be created in a number of different ways, you may be wondering who can have parental responsibility. The Family Law Act notes that birth parents, adoptive parents, and those who have become parents through surrogacy and artificial conception all have parental responsibility.

    It also doesn’t matter whether the parents of the child were married, in a de facto relationship or even in a relationship at all for parental responsibility to apply.

    Other important persons in the child’s life, such as family members who help to raise a child may be able to be designated parental responsibility, however they will not automatically have it just because they help to raise a child – it will need be to be granted by the Court and could be designated to Grandparents for example.

    Another important fact to note is that while stepparents may take on the role and responsibilities of raising their partner’s child, they are not automatically granted parental responsibility, even when they marry the child’s parent. A stepparent can make an application for parental responsibility.

    Equal shared parental responsibility vs sole parental responsibility – which is better?

    While the family law system in Australia has the presumption of equal shared parental responsibility, as we mentioned earlier, it may not always be the right option in your situation.

    The child’s welfare is of great importance and should be the key factor in deciding whether it’s appropriate for both parents or only one parent to have parental responsibility for a child.

    If you’re concerned about the role of your child’s other parent in your child’s life and are considering applying for sole parental responsibility, it is highly recommended that you seek legal advice. Designating parental responsibility to one parent can have significant long-term consequences for all parties and many factors need to be considered. You can talk to our experienced family lawyers to learn more about parental responsibility.

    Equal Parental Responsibility and Equal Time

    It’s common for parents to assume that equal shared parental responsibility for a child also means that each parent is entitled to equal time with their child. This is not the case.

    The amount of time each parent spends with their child can be decided by the parents, through private agreements, negotiation or mediation, or it may be decided by the Court and is heavily dependent on the unique factors of your situation.

    Factors such as the work demands of each parent, where each parent lives, where the child goes to school, and the ability of each parent to provide for a child will all have an impact on this. These are only some of the practical factors that could impact this. The most important factor in working how much time the child will spend with each parent is whether its in the child’s best interest to spend an equal amount of time with each parent.

    Parenting arrangements, plans and orders can also be discussed with experienced family lawyers.

    Resolving parenting matters in Australia

    If you’re experiencing disputes related to parenting matters and you need help, here at Dorter Family Lawyers and Mediators we can help you. Our family law team is highly experienced in a vast range of family law matters, including parenting and children’s matters. Discuss your situation with our team today. You can get in touch with us by calling 02 5566 2998 or booking a consultation online here.