This article explores how Australian law views a father’s role when it comes to access, shared or sole care and co-parenting.
What are a fathers’ rights in child custody matters?
For many separated fathers, obtaining the right to see their child is an issue that frequently causes stress, as it can seem like an intimidating process. And it’s easy to understand why – there’s a general belief that, when it comes to child custody law, courts will always favour the mother over the father. But this is untrue; in the eyes of the law, both the mother and the father are actually on equal footing – and, ultimately, it’s the child’s wellbeing that’s prioritised over all else.
What are a fathers’ rights after separation in child custody matters in Australian family law?
While the traditional mother-first notion may be grounded in history, times have changed significantly. The Family Law Amendment in 2006 moved the system away from a sole custody model, where one parent was the dominant decision-maker, and embraced a cooperative parenting stance, where the child is afforded the opportunity to nurture their relationship with both their mother and father.
In 2024, recent amendments to the Australian family law system still support co-parenting but focus on what is in the best interests of the child or children involved. This has always been a guiding force in Australian family law issues, but recent changes to the Family Law Act have reaffirmed this. The laws in Australia do not give priority to either parent—their aim is for a child’s needs to be placed first, above all else.
Two Parents, No Prejudices
How does the Australian Family Law Act see each parent’s role after separation or divorce?
Nothing in the law discriminates by gender. It’s the factors surrounding both parents’ involvement, as well as their living situations, that play the biggest part. For example, if one parent was the primary earner and the other the primary carer, it can mean that the primary carer is afforded more time with the child, as primary earners generally have less time available for childcare responsibilities.
With traditional parenting roles in mind, this can be misconstrued as favouring the mother. But this isn’t true, as gender isn’t what’s considered – it’s how much either parent has contributed to the child’s upbringing that’s really important.
How we arrived at the current view of father’s rights after separation in Australia
In Australia and most Western countries, it’s increasingly common for children to be born to parents who do not continue to live together for the duration of their childhood. From the 1980s through to the early 2000s, a very common parenting arrangement after divorce or separation in Australia was ‘every second weekend with dad’. This mostly came down to the fact that most men were working full-time and providing for the family, and many women were stay-at-home mothers or not the primary ‘breadwinner’.
Having said this, no law has ever said that’s how things have to be; it was just a default scenario at that stage. Many fathers have solely raised their children since then or have had some form of shared care in place.
Changing schedules over time, child support and care arrangements
In 1988, an administrative child support scheme was introduced in response to difficulties arising from court-ordered maintenance schemes for children. This brought with it a new set of challenges, with payments based on the child’s parents’ individual earnings and percentage of care. Parents who did not have sole custody rights and were earning an income were often paying significant amounts of child support without being able to enjoy a relationship with their children or spending very little time with them.
In 2006, Australian family law matters shifted to a ‘co-parenting’ view in many cases, with a 50/50 or ‘week-about’ parenting agreement growing in popularity. This change balanced previous standards in custody arrangements, providing fathers with more access to being present parents and also accommodating the shift to many more women in the workforce.
For many families, with both parents working, this provided equal access and shifted the older concept of primary custody being held by one parent, which often resulted in child support liability and little contact for the other parent. Even though parents with similar work commitments (such as full-time jobs) are allotted equal shares of the child’s time, there are certain circumstances that can impact this – for example, if a child is breastfeeding, the mother may be granted full custody. But, in instances like these, the father is often afforded a few hours every two to three days in order to cultivate their bond with the child.
Fathers’ rights in 2024 – who chooses where a child lives? In family law, the child comes first.
The most influential consideration in this process is what’s best for the child. When an Australian court reviews a child custody case, they prioritise a child’s wellbeing above all else. If either parent presents a potentially harmful environment for the child, their right to care for them is seriously affected—whether it’s the mother or the father.
The Family Law Act states, “a child has a right to be known and cared for by both parents.”
Recent amendments to the Family Law Act came into place on May 6th, 2024, which highlight what the Courts must look at when determining what is in a child’s best interests. This law encourages parenting matters to be considered on their individual circumstances, ensuring a child’s living arrangements reflect what is good for them.
The Courts understand that a child will want to spend time with both of their parents in most cases, as well as their wider family.
In most cases, it’s in a child’s best interests to have a strong relationship with both parents.
Outside of being ordered to stay away due to safety reasons (for example, domestic violence cases) or matters concerning child abuse from one parent, a father and a mother have the same right – and responsibility- to care for their child. According to Australian child custody law, both parents should be able to share the responsibilities of a child’s upbringing and wellbeing without infringing on one another’s rights.
The recent amendments leverage the emotional and psychological needs of children as paramount, with it being the responsibility of both parents to meet their children’s needs. Parental rights, whether a father’s rights or a mother’s rights, are looked at through the lens of what will best serve their children.
While each family law matter is unique, this generally means that some form of shared care custody agreement will be possible after a separation. It’s also worth noting that the circumstances of each parent may change over time, and the needs of the children, which can affect future care arrangements.
Staying focused on what is important – the best interests of the child involved.
The focus of both parents should always be on raising a child well, in a loving and supportive environment in which they will have their full range of needs met. The law prioritises a child’s needs while recognising that a meaningful relationship with family members is an integral part of healthy development. It does not define when or how often a child spends time with either parent.
This arrangement is generally arrived at by making a parenting plan, or having parenting orders formalised through a court application. A family lawyer can help you draft a parenting plan or parenting orders, which will cover important details about your child’s life, such as living arrangements and things like your child’s education, health and other aspects that each parent agrees up.
Court proceedings are generally not necessary, as most parenting matters can be resolved through agreement, mediation or family dispute resolution. Only if parents are unable to agree would the matter end up in the family law court.
Other factors that can influence a father’s right to see his child in Australia include:
- the physical and mental health of both parents;
- the consistency of parental care leading up to the custody arrangement;
- both parents’ living environments and any risks they may pose to the child;
- both parents’ desired levels of involvement.
Each father’s situation is different, and there’s no out-and-out answer to ensure you get what you rightfully should. But for those who were the primary earners in their family, it may be a good idea to take steps that demonstrate an active commitment to child care – such as changing work routines (where possible), staying on top of school updates regarding your child and taking commute time to schools into account if relocating.
What can I do if my child’s mother is withholding access to our children?
The courts will always consider the denial of contact with one parent—and the negative impacts this entails. If a court order already in place stipulates a shared care arrangement when access is withheld, a recovery order can be sought to have a child returned. It is important to speak to a family lawyer about your legal rights as soon as possible if this has occurred.
If there are no formal arrangements or parenting plans have been made, but no court order exists, it may be necessary to apply to the court for access. If the child is old enough, they have the opportunity to state their wishes, too.
If you are a non-custodial parent, it can be harder to get access and will likely need to be applied for in court. They will look at each parent’s ability to provide care, and if you have been actively involved in the child’s life previously. Any issues of family violence can also impact a mother or father’s access, as well as each parent’s relationship with their child.
Again, these are dependent on your circumstances, and it’s worth seeking legal advice specific to child custody before taking any measures.
To ensure your rights as a father are fairly upheld, and that you are granted the time you deserve with your child, speak to Testart Family Lawyers today.
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Frequently Asked Questions
Will a parent be able to get custody if there is a history of family violence?
A history of family violence can significantly impact custody decisions. Courts prioritise the safety and wellbeing of children. If a parent has a history of violence, it may influence the court’s decision, potentially limiting custody or visitation rights. Each case is evaluated on its specifics, considering the safety of the child.
Do the courts have a preferred percentage of time for each parent when making parenting arrangements?
The courts do not mandate a specific percentage of time for each parent. Instead, they focus on what arrangements best serve the child’s welfare. Parenting time is determined based on various factors, including the child’s needs, the parent’s circumstances, and the ability to provide a stable environment.
What is equal shared parental responsibility?
Equal shared parental responsibility means that both parents are equally responsible for making major decisions about their child’s welfare, such as education, health care, and religious upbringing. It does not necessarily mean equal time spent with the child but ensures both parents have a say in significant matters.
How does a Court determine what is in a child’s best interests?
When determining the child’s best interests, the Court considers the child’s emotional and physical needs, the quality of each parent’s relationship with the child, the child’s safety, and any potential risks. The Court also evaluates each parent’s capacity to provide for the child’s needs and stability.
Can a mother stop a father from seeing a child in Australia?
In Australia, a mother cannot unilaterally stop a father from seeing his child without a court order. The Australian Family Law Act emphasises equal shared parental responsibility, meaning both parents have the right to be involved in their child’s life unless there are concerns about physical or psychological harm. If a mother believes the father’s presence is harmful, she must seek a parenting order from the family court. The court will assess the child’s best interests, considering safety, emotional needs, and the meaningful relationship with both parents.
What rights does a father have to see his child in Australia?
Under Australian family law, a father has equal parental rights to see his child, provided there are no safety concerns. The Australian Family Law Act supports equal shared parental responsibility, allowing fathers to have a meaningful relationship with their children. This includes the right to spend time with the child and make decisions about their upbringing. If disagreements arise, the father can seek a parenting order from the family court, which will consider the child’s best interests, including safety, emotional needs, and the child’s relationship with both parents.
Do mothers have more rights than fathers in Australia?
In Australia, mothers do not have more rights than fathers under family law. The Australian Family Law Act establishes equal parental responsibility for both parents, ensuring that decisions about a child’s life are made collaboratively. Both parents have equal rights to be involved in their child’s upbringing and to seek parenting orders if needed. The family court’s paramount consideration is the child’s best interests, including their safety, emotional needs, and meaningful relationships with both parents, regardless of the parent’s gender.
Can a child choose not to visit a parent in Australia?
In Australia, a child’s wishes about visiting a parent are considered but not determinative. The family court evaluates the child’s preferences to assess their best interests, balanced with other factors such as the child’s safety, emotional needs, and the parental relationship. A parenting order may be necessary if disputes arise. The court may involve an independent children’s lawyer to represent the child’s views and ensure the child’s wellbeing, which is paramount in making custody or visitation arrangements.