Separated fathers rights applies to fathers who have recently separated, or divorced from their former spouse. In traditional societies fathers were always considered to be the breadwinners, and mothers were considered to be the homemakers and primary carers of the child.
Because of the way things worked traditionally, it is often considered that upon separation mothers have more rights than fathers. This is not accurate. Separated fathers rights are no less than separated mothers rights. It is a misconception that mothers will be favoured by family courts in child custody matters.
This article aims to discuss separated fathers rights, which include aspects like child custody rights, and the current legislation around separated fathers rights in Australia.
Australian Law On Separated Fathers Rights
The legislation does not grant more rights to any single parent upon the breakdown of a relationship or marriage. Instead, the Family Law Act 1975 states that both parents have equal shared parental responsibility, and that both parents have an important role to play in making short-term and long-term decisions for the child.
Long-term decisions include decisions around education, and health issues. According to this, separated fathers rights are equal to separated mothers rights, and both will be given 50 per cent time with the child after separation.
This presumption of equal shared parental responsibility applies for all matters concerning the child’s welfare, care and development. However, this presumption will be rebutted in cases where there is evidence of family violence, or any other issue that proves to be harmful for the child’s safety.
A common avenue that parents consider after separation is parenting agreements or parenting plans that allot equal time to each parent, or they apply for consent orders at the court which is a more formalised approach.
However, in case of any specific circumstance or special situation, the court’s decisions may vary as ultimately the court will make decisions based on the best interests of the child. This mainly includes issues around the child’s safety and protection.
Best Interests Of The Child
The best interests of the child is listed in Section 60CC of the Family Law Act (1975). Under this section, there are certain primary considerations and secondary considerations.
The primary considerations include: –
- the benefit of the child having a meaningful relationship with both the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
Some of the secondary considerations include the child’s relationship with both parents, and views expressed by the child.
When Are Separated Fathers Rights More?
As stated above, according to the legislation both parents share equal rights and responsibilities towards the children.
In cases involving family violence, the best interests of the child will be given the paramount consideration. For instance, if the mother or the mother’s family has exposed the child to some kind of harm, the father can make an application to spend more time with the child.
In such instances if the court truly believes that spending more time with the father will be in the best option for the child’s safety, welfare and protection, the court can make orders wherein the father has more time with the child.
Separated Fathers Rights FAQs
1. What are some custody issues for fathers?
If the other party, i.e. the mother or mother’s family establishes that the father subjects the child to some form of harm, or neglect, or abuse, then the father will face custody issues.
This often happens when the other party wants to withhold the child from the father. This is not legally allowed, and the courts have various avenues to ensure that fathers get equal rights, and equal opportunities to establish themselves as reliable parents.
2. Can a father ever have full custody of child?
To have full custody of the child, the father will need to do one of the following things:
- Formulate parenting agreements with the mother which state that the father has full custody of the child. Once a parenting agreement is in place, it will also be necessary to make this a consent order by the court to make it more legally binding.
- If the parents can’t reach an agreement, the father will have to make an application in the court stating why this decision would be in the best interests of the child.
3. Do the courts favour mothers over fathers?
This is a misconception that has been perpetuated because of traditional family structure and society dynamics. The court may prefer the “primary carer” since the child has always been spending time with them.
The primary carer can be the father or the mother, this differs on a case-by-case basis. However, the court still presumes equal shared responsibility, so separated fathers rights are equal to separated mothers rights.
Separated Fathers Rights Case Study: Banning & Wylie [2009] FMCAfam 1049
- In this case the father previously had less time to spend with the child, and had then made a court application to have equal time with the child.
- In making the application, the father stated that the child spend an extra night with him every fortnight.
- The mother argued that spending an extra night would not be in the best interests of the child.
- However, the court’s decision was that both parents would have equal care of the child, and that the court would assist in making this possible by gradually increasing the amount of time the child spends with the father.
How Can JB Solicitors Help?
Family law cases that deal with separated fathers rights are complicated because of prevailing notions that mothers enjoy more rights as the primary carer.
Our experienced family lawyers have dealt with a wide variety of cases and are well-equipped to deal with all complex matters. We understand the stress that fathers go through during custody matters, and are committed to helping them reach their desired outcomes. At JB Solicitors, we have fixed-fee pricing for family law, giving all clients a clear sense of the costs from the start.
Get in touch with our expert team to discuss your legal concerns.
