A common enquiry we get following a separation or divorce concerns a father’s rights to see their child. In modern times, a father’s right to see their child are not as limited as one may think. The objective of this article is to provide a quick guide and shed some clarity on the topic of what rights a father has to see their child.
Does The Court Always Rule In Favour Of The Mother?
A common misconception is that the courts will always award the mother of the child primary custody, and the father will only get to see the children on weekends. While this may have been the case once upon a time, it is simply not the case in modern times.
Each case is different and will be decided upon its own set of unique circumstances. Thus, if it can be shown that it is in the child’s best interests under Section 60CC of the Family Law Act 1975 to stay with the father, then the court may decide in favour of the father to that effect.
Is the Family court biased against fathers?
Australian child custody laws do not make any distinction between fathers and mothers. The Family Law Act provides that a “child has a right to be known and cared for by both parents“, indicating that preference shall not be given to either the mother or father. As such, there is not necessarily any bias against the fathers in the family court. The actual situation is that typically due to the social dynamics of common gender roles, the father is working, and the mother is the caretaker of the home and children. Accordingly, the mother would often be considered the primary carer of the children – and the court has a preference to side more with the primary carer of the children, which is often the mother.
However, despite who the primary carer of the children is – a common exception to this will be in situations where allegations of domestic violence or abuse are present. In such circumstances, the court will revert to the primary consideration of doing what is in the child’s best interests, in light of reasonableness and practicality.
Child Custody & The Family Law Act
If matters proceed to court following separation, the court must determine parenting arrangements such as who the child will primarily live with and spend time with.
Despite the outcome, both parents usually have the responsibility of caring for their children, including financial support. However, the law does not guarantee an equal-shared parenting arrangement in all matters that may negatively impact a fathers’ rights to see their child.
If the court decides that an equal-shared arrangement is in the child’s best interests, the court will consider allocating substantial time to the non-resident parent. As mentioned earlier, the exception to this would again be when there is a history of domestic violence or abuse. As the child’s best interests are the utmost consideration above all, the court will prioritise the child’s safety and well-being over maintaining a meaningful relationship with the child. Therefore, this can be a significant factor in determining a fathers rights to see their child.
Final Thoughts
In our experience, we often see that fathers are generally more intimidated by family court settings and the experienced involved in pursuing matters concerning their children’s living arrangements. However, this fear is unfounded as the family court, given the family court’s heavy prioritisation upon doing what is in the child’s best interests. Accordingly, denying a child contact with one parent may seriously impact the child’s development.
Therefore, a father’s right to see their child is not lesser than that of the mother unless allegations of domestic violence are involved, which weigh against the father that the court will be required to consider. However, generally speaking, the Family law courts and legislation do not stereotype based on gender, so there is nothing to fear.
Importance of Seeking Legal Advice
It is important to note that it does not necessarily diminish a father’s right to see their child when a divorce or separation transpires.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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