Fathers’ rights NSW: Does it really exist beyond the gender equality standards? Before we answer this, we must first know what it means to be a parent. Yes, in this article, we won’t favour fathers, but parents as a whole. Now, you might have clicked on this article because you may wonder what your rights are after divorce or separation.
Divorce and separation can end up not just in legal disputes, but also in the legal costs involved. Children also suffer from the separation and end up wondering how this will change their lives. The only way parents can manage this crisis is how they will handle parenting arrangements.
Common Misconceptions in Family Law
We’ve all heard it before:
“Mothers can do better with childcare”
“What do fathers know about being a parent? Clearly, mothers are more capable of it”
For the longest time, there has been a common misconception about mothers being more capable parents than fathers. Maybe this is why some people or fathers wonder if fathers’ rights in NSW exist.
This assumption is deeply flawed. Each case in the Australian family court provides equal rights to both the mother and the father. This means that fathers’ rights are the same as mothers’ rights. Only certain factors can affect how courts will assume who will have responsibility over a child, such as violence, neglect or abuse.
Where these complexities arise, the courts always consider the best interests of the child while making any decisions or orders. Why is the child’s best interests important? Let’s keep reading to know more.
So, Do We Follow Mothers’ Rights or Fathers’ Rights in NSW?
Neither! In fact, Australian family law prioritises the child’s rights above the parents. Under Section 60CC of the Family Law Act (1975), the primary considerations about 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 that 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
Fathers’ Rights In NSW: The Current Legislation
One of the laws under the act is the creation of a parenting order under Section 61DAA, which states:
“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared responsibility.”
Parental responsibility includes playing a role in making long-term decisions for 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 time with the child.
The only case where this presumption of equal shared responsibility is not considered is in cases where the other parent has engaged in:
- Child abuse, or another child who, at the time, was a member of the parent’s family (or the other person’s family); or
- Family violence
Note: Did you know that the presumption of equal shared parental responsibility was abolished? Click here to read our article discussing about the abolishment.
Fathers’ Rights In NSW: Custody Of Child
As mentioned above, in the absence of exceptional situations like violence and neglect, both mothers’ and fathers’ rights in NSW are equal. This means that both parties may have equal custody of the child.
Parents can make various arrangements – both formal and informal – for parenting arrangements. For example, if both parties agree on the terms of an informal agreement and can chalk out the amount of time the child will spend with each of them, they can make an informal parenting plan.
However, in some cases, issues may arise 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.
When Will Parents Undergo Family Dispute Resolution?
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 assist the parents in reaching an agreement on custody issues. Sometimes, during these sessions, there are parents who claim to have fathers’ rights when in fact, the children come first.
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. Yes, you read that right, there are cases where sole custody is the only option to resolve parenting arrangement disputes.
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 the parenting order.
Case Study Example
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 father’s 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.
We Value Your Child’s Best Interests
As mentioned, the child’s best interests are prioritised above fathers’ rights and mothers’ rights in parenting disputes. Yes, fathers’ rights in NSW are the same as mothers’ rights, but our family law team have seen divorce cases where the father goes through more stress because of misconceptions revolving around fathers’ primary care status.
However, we have also seen cases where mothers also undergo the stress of divorce because of an unruly or abusive father. To summarise, it’s not the gender that defines a good parent, but their character, capability, and commitment to parenthood.
At JB Solicitors, our family lawyers offer a range of services in divorce cases. We have fixed-fee pricing for family law services, giving you a clear sense of your legal costs. In case of conflicts, we offer expert mediation services.
Contact our friendly lawyers to discuss a father’s rights and obligations during divorce.
