It is widely considered that mothers rights are more than fathers rights in divorce cases, in relation to child custody.
However, this is simply not the case. Fathers enjoy equal rights in divorce cases, and they are equally eligible to get custody of their child.
The question to explore then is what are fathers rights in divorce?
Family Courts In Australia
The Famil Act 1975 states that each parent has equal responsibility, known as parental responsibility until the child turns 18 years of age.
Even in cases of a change in the parents’ relationship, such as in events of a divorce or separation, or if one of the parents remarries, the parental responsibility that both parents have still remains the same.
Australian family courts follow a no-fault divorce system, i.e., when a marriage or relationship breaks down, the law will not look at whose fault it is. Instead, in cases where two people have separated, or divorced, and there are children involved, the main concern for family courts is the best interests of the child.
The best interests of a child in family law include ensuring that the child is protected from any form of psychological or physical abuse, and the benefits for the child in having a meaningful relationship with both parents.
Especially because of this, the court ensures that fathers rights in divorce and mothers rights in divorce are the same.
This means that the notion about the mother enjoying primary custody of the child after divorce is inaccurate. In fact, if for any reason, the court deems that it is in the best interests of the child to live with his/her father following the separation of his/her parents, the court will make orders accordingly.
Why Is It Thought That Fathers Rights In Divorce Cases Are Less?
This idea of the mother enjoying primary custody of the child after divorce is widespread simply because of the dynamics that are in place since ancient times.
Traditionally, the mother was always considered to be a homemaker, whereas the father of the child would be the breadwinner of the family. Due to this, it is always assumed that the mother takes care of the child at home and is hence the ‘primary carer.’
However, in modern times, there are no fixed rules or conventions around family dynamics, with there being an increasing possibility for fathers to stay at home and take care of the child, and for mothers to go out to work.
In other terms, this myth has its roots in how families would function in traditional societies.
When Are Fathers Rights In Divorce Cases Actually Less?
The only case in which both parents will not enjoy equal rights is when it involves family or domestic violence.
In cases of family or domestic violence, the court will consider the child’s best interests i.e., the child’s proper care, welfare, and development, and make court orders accordingly.
Fathers rights in divorce cases will not be the same as mothers if the child has been physically, psychologically or sexually abused by the father. In this case, the court will make orders wherein the mother will have all the rights, and parental responsibilities because the father poses a threat to the safety of the child.
Child Custody And Parenting Plans
Often, parents can come up with plans on how to take care of their child, without needing to approach the court.
In terms of child custody, fathers rights in divorce cases are the same as mothers rights, and both parties have equal parental responsibility.
Parents who are recently divorced are encouraged to formulate parenting agreements, or parenting plans that detail: –
- how the child is to be taken care of
- where the child will live
- how the child is to be financially supported
- what relationship will the child share with other family members like grandparents
In other words, parenting agreements must consider all aspects in relation to the welfare of the child.
Such written parenting agreements are known as parenting plans. Some parents wish to make verbal agreements.
Under parenting plans, it is ensured that fathers rights in divorce cases are equal, i.e., the child will spend the equal amount of time with both parents (except in cases where it is not practically possible to do so).
Child Custody And Consent Orders
In some cases, parents who reach an agreement wish to formalise their agreements by approaching the court.
The court then makes a consent order, which reflects the agreement or plan that the parents have formulated.
Consent orders are legally binding, and the parents cannot breach the order. Doing so can result in the parent getting a penalty.
Child Custody And Parenting Orders
In cases where parents are not able to come up with parenting arrangements, or if the process causes disputes among the parents, they can approach the court.
In this case, the courts will make parenting orders, which are orders about the parental responsibilities of both parties. Parenting orders are legally enforceable. If parenting orders are breached without there being reasonable grounds for doing so, the court may ask the party who has breached the order, also known as the contravening party, to attend parenting programs or counselling services.
There can be other penalties if parenting orders are breached.
How Can JB Solicitors Help?
Because of the common misconception that fathers rights in divorce cases are by-default lesser than those enjoyed by mothers, many fathers don’t consider approaching lawyers in cases where they feel the parenting agreements are unfair.
Our family lawyers have a wealth of experience in dealing with divorce and child custody cases, and we have the expert knowledge of navigating through court processes in ensuring that fathers enjoy equal rights in divorce cases.
Contact us today to speak with our compassionate and experienced lawyers.
