I don’t want to be the father of this child, what are my rights and obligations

This is a sticky situation in which some men find themselves. The decision to have a child should be a joint decision, however, in many situations, a child may be conceived unexpectedly and where either or both parties are not ready or are unwilling to have a child.

A woman is currently only able to terminate a pregnancy in New South Wales if her doctor believes, on reasonable grounds, that it is necessary to do so to avoid a serious danger to a woman’s life or her physical and/or mental health, taking into account economic and social factors as well as medical factors.

Your rights and obligations as the father of the child do not commence until the child is born.

Am I required to contribute towards the childbearing expenses of the mother?

If you are not married to the mother of the child, as the father you are liable to make a proper contribution towards:

• The maintenance of the mother for the child birth 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 some 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 the Child Support Agency. The agency 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.

You cannot opt out of or vary your obligation to pay child support unless it is by agreement with the other parent. In the event both parents agree to opt out of or vary, any assessed child support payments the parents should usually enter into a child support agreement.

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, and the two types of agreements have different legal effect and requirements. Notably, a binding child support agreement requires both parents to obtain independent legal advice in relation to the effect, advantages and disadvantages of the agreement. A child support agreement can deal with the entirety of child support obligations or only part of the obligations.

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 children. This responsibility relates to making long-term decisions about your children. The legislation does not require you to make positive contributions towards making such decisions.

Do I have to spend time with this child?

The child has a right to have a meaningful relationship with both parents, subject to the child’s best interests. Therefore, the child has a right to spend time with you and build a relationship with you if it is in the child’s best interests. However, if you are not keen on spending time with the child, this is unlikely to be required given that it would not be in the child’s best interests to have to spend time with an unwilling parent.

In the event you do not spend time with your child for an extended period of time, it will be increasingly difficult for you to recommence spending time with your child at a later stage. The child, as well as the mother, may be reluctant to offer you time and the Court is also likely to be critical of your decision to not spend time with the child. Depending on the child’s age, the child’s views may be significant, and you may be required to engage in family therapy as well as participate in a number of other programs/courses to recommence spending time with your child.

Not pursuing a relationship with your child is a serious decision and one that should not be taken lightly, and not taken until you have full legal advice. For further information talk to one of our Family Lawyers today.