The topic of fathers rights custody essentially deals with all concerns around fathers’ rights after a divorce or separation to have continued access to their child/ren.
Fathers rights custody is often uncertain because of the traditional notions around custody rights, wherein mothers were awarded custody rights as they were the primary caretakers of the child/ren. However, in our contemporary society, fathers rights in custody matters are the same as mothers’ rights because family structures have evolved.
Australian legislation does not make a differentiation between the mother and father after a divorce or separation, and both parties are given equal rights with regards to having access to the child/ren of the relationship, and with regards to visitation rights.
Importantly, when discussing fathers rights custody, it is necessary for us to understand the topic of parental responsibility. According to Section 61B of the Family Law Act (1975), parental responsibility can be defined as follows:
Parental responsibility, in relation to the child, means all the duties, powers, responsibilities and authorities which, by law, parents have in relation to the children.
Under parental responsibility, there are two types i.e. sole parental responsibility, and equal shared parental responsibility. According to Section 61DA of the Family Law Act (1975), the courts apply a presumption of equal shared parental responsibility when making any parent orders.
Equal shared parental responsibility means that all decision-making authority will lie with both parents equally, and all short-term and long-term decisions for the child will need to be made unanimously by both parents.
Fathers Rights Custody And Equal Shared Parental Responsibility
As mentioned above, there is a presumption that both parents will have equal shared parental responsibility. Hence, fathers rights custody will be equal to those enjoyed by mothers.
In this case, decisions in the child’s life which will be made by both parents include:
- Decisions concerning the child’s healthcare;
- Decisions concerning the child’s education;
- Changing the child’s name;
- Decisions related to the child’s religious and cultural upbringing;
- Making or authorising travel documents (such as passport) for the child.
The only circumstance where equal shared parental responsibility will not be enjoyed by both parents is in extreme cases such as:
- if family violence occurred because of one of the parties;
- if there was abuse of the child, or another child who was at the time a member of the family
In these cases, the presumption needs to be rebutted by providing evidence to the court. The court makes all decisions by considering the best interests of the child. Ultimately, if awarding equal shared responsibility to both parents is not in the best interests of the child, the court will make parenting orders accordingly.
Fathers Rights Custody: Parenting Arrangements
While parental responsibility is an important concept, it is not the same as “custody.” Custody may include who the child lives with. Both parties, i.e the mother and father can enjoy equal parental responsibility even if the child lives with one party only.
Generally the term “custody” is used to denote who the child lives with. To ensure fathers rights in custody matters, the best method is to make parenting arrangements or parenting plans with the mother. Parenting plans are informal arrangements which can be made either verbally or in writing.
These plans can include information about visitation schedules, custody arrangements and other relevant matters which concern the child/ren. Parenting plans are good options if both parties agree on the custody and visitation arrangements which are being chalked out.
In cases where both parties are able to formulate a parenting plan based on mutual agreement, it might also be wise for the parties to apply for consent orders at the court. Consent orders make these parenting plans formalised by making them legally binding.
Parenting Orders
If the parties are not able to agree on custody matters, applications will need to be made to the family court. Based on the circumstance of the cases, and after considering best interests of the child, the courts will make parenting orders. These are legally binding and breach of parenting orders can lead to penalties.
Can A Father Be Denied Custody Or Access To The Child?
Like we’ve explored above, Australian legalisation considers the role of both parents in a child’s life for their wellbeing and development, and so fathers rights custody is equal to those of mothers.
However, because the safety of the child is given primary consideration under the best interests principle, if an arrangement with one parent poses a threat to the safety of a child, the courts can order that the other parent have sole parental responsibility.
For example, in the case of Theophane & Hunt [2014] FamCA 1038, the mother was given sole parental responsibility, and it was ordered that the child is to live with the mother. This was because there were domestic violence orders against the father, and it was found that the father exhibited anti-social traits.
Considering this, it can be understood that a fathers rights to custody can be denied if this is deemed to be in the best interest of the child.
Why Legal Advice Is Important For Fathers
Dealing with fathers rights custody can be complicated in family law proceedings. In families where the divorce or separation was not amicable, these issues become even more complicated, with there being many disputes and disagreements between involved parties.
At JB Solicitors, our family law team has provided legal guidance to fathers who have experienced difficulties in making custody arrangements. We have the experience of handling unique cases, and we provide market-leading advice which is tailored to each circumstance.
To make the process more transparent, we offer cost agreements before starting any legal procedures so as to give you a clear sense of all costs invovled. Moreover, we also offer fixed-fee pricing for many essential services.
In case of disagreements between parties on parenting plans, we offer mediation to facilitate a healthy discussion, and to reach satisfactory outcomes.
Contact our compassionate and experienced team of solicitors for all enquiries.
