What are my rights and obligations as the legal father?

The decision to have a child should be a joint decision, however, in many situations, a child may be conceived unexpectedly or where either or the other parent are not ready or are unwilling to have a child.

The decision about whether to continue with the pregnancy and give birth to the child rests solely with that child’s biological mother.

Your obligations as the father of the child do not commence until the child is born. Depending on the nature of your relationship with the biological mother and the surrounding circumstances, you may not be involved in, or informed of, the decision to continue with the pregnancy.

Following the passing of the Abortion Law Reform Act 2019, abortion has become far more accessible in NSW. Biological mothers are now no longer required to have a medical or other reason in order to undergo an abortion.

Am I required to contribute towards the child bearing expenses of the mother?

As the father you are liable to make a proper contribution towards:

• The maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and
• The mother’s reasonable medical expenses in relation to the pregnancy and birth; and
• In the unfortunate event that the mother dies and the death is as a result of the pregnancy or birth of the child, the reasonable expenses of the mother’s funeral; and
• In the unfortunate event that the child is stillborn or dies and the death is related to the birth, the reasonable expenses of the child’s funeral.

In determining your financial contribution the Court will consider the income, earning capacity, property and financial resources of both the mother and you, and any commitments each of you may have that are necessary to enable either or both of you to support yourselves and/or any other dependents (including any other child/children), and any other relevant considerations. The Court will also have regard to the capacity of both of you to derive an income but will disregard any entitlement of the mother to an income tested pension, allowance and/or other benefits.

The mother or her legal representatives must institute any proceedings for child bearing expenses at any time during the pregnancy or within 12 of the birth of the child. The Court might allow ‘leave’ (permission) to extend the time beyond that 12 month period in certain circumstances.

What are my financial rights and obligations to this child?

As the biological father of the child, you may be required to pay child support as assessed by Services Australia, formerly known as the Child Support Agency. Services Australia usually assesses the minimum child support that is required to be paid by one parent to the other after taking into consideration the care arrangement for the child and the earning capacity of both parents, among other things. Depending upon your and the mother’s respective incomes and level of care of the child, you may be assessed to pay child support to the mother.

You cannot opt out of or vary your obligation to pay child support unless it is by agreement with the other parent, however you may be able to apply to change a child support assessment in certain circumstances. In the event both you and the other parent agree to opt out of or vary an assessment of child support, the you should consider entering into a child support agreement, so that the agreement is enforceable.

A binding child support agreement is a written agreement between parents that relates to child support payments. It can be a ‘limited’ or a ‘binding’ child support agreement. The two types of agreements have different legal effect and requirements, most notably the period of time for which the agreement remains enforceable. A child support agreement reduce or vary any the child support that you have been assessed to pay. It can also provide for non-periodic payments, such as school fees and out of pocket medical and dental expenses.

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

The Family Law Act provides that both parents have shared parental responsibility for their child. This responsibility relates to making long-term decisions about your child. The legislation does not require you to make positive contributions towards making such decisions.

Do I have to spend time with this child?

Your child has a right to have a meaningful relationship with both parents. Broadly speaking, it would likely be considered beneficial to your child for them to spend time with you and build meaningful relationship you. However, if you do not wish to spend time with your child, the other parent cannot force you. Whilst the other parent could, in theory, file an Application in the Federal Circuit and Family Court of Australia, it is unlikely that the Court would consider it in the best interests of your child for an unwilling parent to be ordered to spend time with their child.

In the event you do not spend time with your child for an extended period of time, there is a risk that it will become increasingly difficult for you to recommence spending time with your child at a later stage. The child or the other parent, may be opposed and the Court is likely to be critical of your decision to not spend time with your child. Depending on your child’s age, the child’s views may attract significant weight. You may be required to engage in family therapy as well as participate in a number of other programs/courses in order to recommence spending time with your child in a developmentally appropriate and gradual way.

Not pursuing a relationship with your child is a serious decision and one that should not be taken lightly. You should obtain legal advice before deciding not to participate in your child’s life. For further information talk to one of our Family Lawyers today.