If you are based in NSW, Australia and have recently gotten a divorce, or separated from your former spouse then the article of fathers rights in NSW is applicable to you.
Fathers rights has always been been a somewhat contested topic because many people just assume that following a breakdown of a relationship, if children are involved, all responsibility regarding care, welfare and development of the child falls on the mother.
This assumption is deeply flawed. Family courts in Australia provide equal rights to both parents. This means that fathers rights in NSW are the same as mothers rights. Of course, this will be the case when the matter is straightforward and does not involve any instances of violence, neglect or abuse.
Where these complexities arise, the courts always consider the best interests of the child while making any decisions, or orders.
The Best Interests Of The Child
Under Section 60CC of the Family Law Act (1975), the primary considerations in relation to the best interests of the child are stated. The primary considerations include:
- the benefit to the child of having a meaningful relationship with both of the child’s parents;
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are also some further considerations, or additional considerations which factor in when considering what is in the best interests of the child. Some of these additional considerations include:
- the wishes of the child
- nature and history of the relationship the child has with each parent
- any practical difficulties which may arise, especially due to long-distance parenting
- specific emotional and intellectual needs of the child which need to be considered
- how the communication between parents is to take place, and also the availability of each parent
Current Legislation On Fathers Rights In NSW
According to the Family Law Act (1975) both parents are said to have equal shared responsibility of the child. According to Section 61DA of the Family Law Act (1975) there is a presumption of equal shared responsibility which the courts consider.
Parental responsibility includes playing a role in making long-term decisions of the child such as those related to education and health issues. If the separation or divorce was straightforward, i.e., without there being any neglect or abuse in the household, fathers rights in NSW are equal – meaning that in case of custody matters, they can share equal, 50 percent time with the child.
The only case where this presumption of equal shared responsibility is not considered is in cases where the parent has engaged in:
- abuse of the child, or another child who, at the time, was a member of the parent’s family (or the other person’s family); or
- family violence
Fathers Rights In NSW: Custody Of Child
As mentioned above, in the absence of exceptional situations like violence and neglect, both mother and fathers rights in NSW are equal. This means that both parties can have equal custody of the child.
To ensure this happens, there are various arrangements – both formal and informal – that the parties can make. For example, if both parties agree on the terms of an informal agreement, and are able to chalk out the amount of time the child will spend with each of them, they can make an informal parenting plan.
The parenting plan can be a written informal arrangement between both parties. However, in some cases, there might be issues if one party refuses to agree with the terms of the plan in the future. To avoid this scenario, they can apply for consent orders in the courts.
Consent orders formalise the existing parenting plan and make it legally enforceable. This is a prudent method to ensure that unnecessary conflicts do not arise in the future.
In cases where parents can’t reach an informal agreement because of differences, they are advised to go to mediation or family dispute resolution. The accredited mediator will help the parents reach an agreement on custody issues.
If mediation or family dispute resolution does not work, the only method is to approach the court. During the court proceeding, both parties will present their arguments on why they should receive equal custody, or sole custody of the child.
Once the court receives submissions from both parties, the court will consider what is in the best interests of the child, and make parenting orders accordingly.
These parenting orders are legally binding. There are legal consequences in cases where a party has breached the parenting order, also known as ‘contravention’ of parenting order.
Case study example: Banning & Wylie  FMCAfam 1049
In this case, the father made an application to the court for equal time when the child starts school, and until then an extra night every two weeks.
The mother opposed this request by stating that the fathers work commitments might cause issues. However, the court considered that equal care and equal custody is the best option for the child, and decided that the child’s time with the father would be increased gradually.
Takeaway: This reflects that fathers rights in NSW, or in Australia are equal to those that mothers enjoy. In this case, the court considered the best interest of the child in having a meaningful relationship with both parents.
JB Solicitors’ Legal Guidance
Although fathers rights in NSW are the same as mothers rights, our family law team have seen divorce cases where the father goes through more stress because of misconceptions revolving around fathers’ primary care status.
We have the experience of dealing with a wide range of complex cases. We understand the details of the case thoroughly and provide tailored advice to ensure that you receive the best possible outcome in your case.
At JB Solicitors, our family lawyers offer a range of services under divorce cases. We have fixed-fee pricing for family law, giving you a clear sense of your legal costs. In case of conflicts, we offer expert mediation services.
Contact our friendly lawyers to discuss fathers rights in NSW.