People often assume that singles fathers rights are not the same as mothers rights. In reality, single fathers rights are equal to rights which single mothers are entitled to. This misconception has for long been perpetuated because of traditional societies’ structures.
In the past, the mother was always considered to be the primary carer of the child. On the other hand, the role of fathers was mostly limited to that of being the family’s sole earner or breadwinner.
Because of these roles which were assumed traditionally, it is thought that single fathers rights are not the same as mothers’ rights. However, as the legislation in Australia states – both fathers and mothers have the same rights in obtaining custody of the child, or sharing parental responsibility of the child.
In discussing single fathers right, another important consideration is that in Australian legislation, the focus is not so much on the “rights” that parents enjoy, as much as it is about the “responsibilities” of the parent and the best interests of the child.
The Family Law Amendment Act (2006) changed the focus from the parents to the children. This is why during legal proceedings and court procedures, the courts don’t necessarily consider single fathers rights versus single mothers rights unless there are instances of family or domestic violence where one party can he held liable.
What Is Parental Responsibility?
When talking about parents’ rights in Australia, the most important aspect which comes up is related to “parental responsibility.”
Parental responsibility means all the duties, rights, powers and responsibilities which parents have in relation to their children. An important part of parental responsibility is making both long-term and short-term decisions in the child’s life.
Some of these decisions include:
- about the child’s education;
- about the child’s health and medical-related issues;
- about the child’s culture and religion
When discussing single fathers rights, it is important to note that both parents have equal shared parental responsibility. Under the Family Law Act (1975), Section 61DA states that there is a presumption of equal shared parental responsibility.
This means that before making any parenting orders, the court applies this presumption stating that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The best interests of the child is the paramount consideration in all family court and parenting proceedings. Similar to equal shared parental responsibility, when courts decide custody-related matters, they make decisions by checking what’s in the best interests of the child.
As stated under Section 60CC of the Family Law Act, the two primary considerations related to best interests include:
- The need to protect the child from all forms of harm. This includes harm in the form of family violence, psychological harm, abuse or neglect.
- The benefits to the child of having a meaningful relationship with both his/her parents.
There are certain additional considerations under best interests of the child such as – the opinions and views of the child; the kind of relationship the child shares with his/her parents; any specific characteristic of the child or parent which may be important to consider including their lifestyle or background etc.
Single Fathers Rights: Case Studies
As noted above, as long as it is in the best interests of the child, single fathers rights will be the same as single mothers rights. In fact, if the court considers that giving the mother more rights over the child is not the best decision, the father can also be entitled to receive more rights.
Single fathers rights can also be influenced by factors such as how the parents communicate between each other, and if there are any practical difficulties like if the two parties’ houses are situated far apart from each other. Certain case studies illustrate how single fathers rights are also equally considered – contrary to popular belief.
In the case of Banning and Wylie [2009] FMCAfam 1049, the father only spent one/third of the child’s time with the child.
The father made an application to be able to send equal time with the child. Although the mother opposed the application stating the father’s work commitments will create potential issues – the court ruled in favour of the father and stated that both parents are to spend equal time with the child.
In another case study – Maluka and Maluka [2009] FamCA 647 – the mother was given sole parental responsibility of the children because the father posed a threat to both the children and the mother.
The father had been violent towards the children and the mother, and the court made an order for sole parental responsibility for the mother as this was considered to be in the best interests of the child. Moreover, the father was not allowed to contact the children.
Generally, even if one parent has sole parental responsibility, the other parent will have certain custody and visitation rights. This depends on the details of the case. In serious cases where there is violence involved the court can make no contact orders as well.
Importance Of Seeking Legal Advice
As we have seen, misconceptions around single fathers rights still exist. However, in summary, fathers enjoy equal rights as mothers, and the court does not favour one parent over the other.
The only cases where equal shared parental responsibility will not be considered is when the court finds that it will not be in the best interests of the child if both parents have responsibility over the child.
It is important for single fathers to gain legal advice from expert family lawyers. Whether you are in the midst of a custody dispute, or simply need to make a case to be able to spend more time with your child/ren, legal professionals can help you.
At JB Solicitors, our family law team have the experience of handling various cases to do with single fathers rights. They have a wealth of experience in all such matters.
Contact our compassionate and experienced team of lawyers today.
