There are some important legal topics which need to be discussed when we talk about visitation rights for fathers. Notably, these are the same rights which are awarded to mothers following a divorce or separation.
The assumption about visitation rights for fathers is that they will be given less rights in comparison to the mother of the child. However, this is not true as under the Family Law Act 1975, both parents have equal shared parental responsibility.
According to Section 61DA, there is a presumption of equal shared parental responsibility which states that both parents have decision-making authority in the child’s life.
Importantly, the topic of ‘visitation’ comes up when the child/ren is residing with only one parent – known as the custodial parent. In such cases, the non-custodial parent will then be awarded certain visitation rights.
Visitation rights for fathers is an important topic for fathers who are the non-custodial parent of their child. Under Australian law, the primary consideration of the best interests of the child – as stated in Section 60CC of the Family Law Act (1975) – is that the child should share a healthy relationship with both her/his parents.
How To Ensure Visitation Rights For Fathers Are Guaranteed?
Unless the father has exposed the child to harm or violence, visitation rights for fathers can be guaranteed by using certain avenues such as parenting plans, parenting orders or consent orders.
Often people choose to formulate certain visitation schedules which detail information about how the non-custodial parent can spend time with the child. For instance, details around which days the father can spend time with the child, and the timings during which the father can visit the child are included.
Having a fixed schedule is helpful as the father, the mother as well as the child can get accustomed to a routine. In this way visitation rights for fathers can be guaranteed without causing stress or anxiety.
For non-custodial parents this subject is very sensitive and can cause a lot of stress. For these reasons, having fixed written plans can be beneficial.
A parenting plan is one such written plan. However this is an informal arrangement where both the mother and father come up with a schedule and discuss it either verbally or in writing. To make this plan more legal, you can opt to apply for consent orders at the court.
Unfortunately, in some cases, both parents are unable to reach an agreement about visitation schedules and parenting plans. This happens often in divorces or separations which were not as amicable. In this scenario, the parties have to either attend mediation or family dispute resolution to reach an agreement.
If these fail, the parties will need to approach the court where a parenting order will be made. This is a legally binding order which needs to be followed by both parties. Details about visitation rights for fathers can be included in this parenting order.
In case one party breaches these orders, the other party can file for contravention applications. The court will then evaluate whether it was a serious or minor breach of order. However, it is very important to seek legal advice before applying for contravention orders.
If it is a serious breach of order, the court may take actions accordingly. However a contravention application is not the first option in all cases where there has been a breach of order.
For example, if the father was not able to visit his child as per stated in the parenting order due to the child being sick, this cannot be considered a breach of order from the mother’s part. This is a reasonable breach of order.
Can Visitation Rights Of Fathers Not Be Awarded?
As we discussed before, Australian legislation gives equal importance to both parents with regards to their rights and responsibilities over the child.
However, because the best interests of the child is given paramount consideration in family law matters, if it is deemed that maintaining contact or sharing a relationship with either one of the parents is detrimental to the well-being of the child, the court can make “no access” parenting orders.
No access parenting orders mean that a parent will have no rights to access or visit their child. These orders are made in cases where the parent has exposed or subjected the child to family or domestic violence and thereby caused sexual, physical or psychological harm to the child. No access parenting orders are also termed as no contact orders.
For example in the case of Zaccardi & Zaccardi [2019] FamCA 39, a no contact or no access parenting order was made against the father. The father was found guilty of harming the mother, and posing a threat to the security of the mother and the child.
What Are Supervised Visits?
Sometimes, in cases where there are serious conflicts between the parents, and/or if the non-custodial parent poses some sort of risk to the child or the custodial parent, the non-custodial parent will be allowed to have visits with the child only when they are supervised by another adult.
The reasons for supervised visits could be because the non-custodial parent has a history of alcohol or drug abuse, or if the parent has neglected the child etc.
JB Solicitors’ Legal Advice For Parenting Matters
There are often many misconceptions around the topic of visitation rights for fathers. Because of these reasons, having professional legal guidance from experienced family law solicitors is very important.
Our family lawyers at JB Solicitors can help with making parenting plans/agreements, visitation schedules, mediation, dispute resolution services and legal representation during court procedures. We have the compassion to understand how stressful these circumstances can be for you and your child/ren.
This is why we facilitate transparency throughout our legal procedures. The first step through which do so is by providing fixed-fee prices for family law services allowing you to plan your legal costs before the process begins.
Contact our friendly and experienced team of lawyers today.
