Following a divorce or separation, one of the most frequently asked questions is what are my rights as a father.
It is often assumed that fathers get the short end of the stick, and mothers are usually favoured after a divorce or separation, when it concerns the custody of a child.
This is definitely not the case. Fathers enjoy equal rights as mothers.
If you are a father who has recently separated from your spouse, you must be in search for the answer to the question of what are my rights as a father.
This article aims to explore the rights that fathers enjoy in Australia.
My Rights As A Father
Under the Family Law Act 1975, it is presumed that both parents share equal parental responsibility.
This means that the father has an equal responsibility, and role in making major decisions in the child’s life. This can include both short-term decisions, and long-term decisions on education, and health matters.
Even for other significant aspects that concern the child’s welfare, care and development, both parents have equal shared responsibility.
To understand ‘what are my rights as a father’, it is essential to know that fathers have equal rights, which means that they can spend at least 50 percent time with their child.
The arrangements around this will differ from case to case, and the courts will take into consideration all specific circumstances of a family in making custody related decisions.
The most dominant consideration in making these decisions is the best interests of the child.
Best Interests Of The Child
As discussed in other articles published on the JB Solicitors blog, the best interests of the child include both long-term and short-term concerns, including the child’s health, physical well-being, and mental well-being.
It can also include moral, educational, financial, and religious interests, among others.
Under the Family Law Act 1975, it is explicitly stated that both parents need to take responsibility for the care and welfare of the child, until the child turns 18 years of age.
The best interest of the child also includes that there is a healthy cooperation between the parent and child, and that the parents make proper parenting arrangements.
Section 60CC of the Family Law Act states the various primary and additional considerations. The primary considerations include: –
Primary Considerations: –
- The benefits of the child sharing a meaningful relationship with each of his/her parents.
- The need to protect the child from all kinds of harm, including physical or psychological harm, abuse, neglect, and family violence.
When the court is to make decisions on parenting matters, it has to give greatest weight to the need to protect the child from any kind of harm.
Fathers’ Rights: How Can A Father Win Full Custody
As seen above, the legislation states that each parent has equal rights and responsibility towards their child/children.
As a father if you are asking yourself ‘what are my rights as a father’ because you wish to seek full custody of your child – it is important to understand the two avenues to do so.
Firstly, the most straightforward method is to reach an agreement with the mother of the child on how custody is to be split. If the mother agrees that the father should receive full custody, or more than 50 percent custody of the child, then a parenting plan can be made.
A parenting plan need not be submitted to the court. However, if you wish to formalise the plan and make it legally binding, you will be required to make an application to the court.
In cases where you are unable to reach an agreement, it will be necessary for the Family Court to intervene.
Based on the specific details and circumstances of the case, the Family Court will consider the best interests of the child, and make decisions on whether or not it is ideal for the child to live with his/her father.
After considering the submissions of both parties, the court will make a parenting order, which will be legally binding.
Before you approach the court for such cases, it is required that you seek the help of a mediator, to help reach an agreement on parenting plan. If this fails, only then will the court make an order.
Can The Mother Legally Withhold The Child From The Father?
The mothers cannot withhold the child from the father. In cases where the mother withholds the child from the father, the fathers have the right to apply for a Contravention Application which notifies the court of the breach of the parenting order.
Once such an application has been filed by the father, the court may order the mother to pay a fine, or compensate for lost time.
In some cases it is acceptable for the mother to withhold the child from the father. These include: –
- if the father is violent towards the child
- if the father is taking drugs in the presence of the child
- if the father presents some kind of threat to the safety of the child
- if the child is at risk of being exposed to sexual abuse
My Rights As A Father: Positive Steps To Take
In cases where the mother has always been the primary carer of the child, the father needs to ensure that he is more involved in the care of the child after separation.
To boost chances and to ensure rights of fathers are always protected, fathers need to change their routines and be more involved in their child’s life.
In certain cases where fathers are the sole income-earners, they will need to adopt a more flexible approach to working, so as to ensure that they are available for the care of the child at all times.
JB Solicitors’ Guidance On Fathers’ Rights
As family lawyers with a wealth of experience in child custody matters, we understanding that in many cases it is particularly stressful for fathers after divorce or separation.
Now that you have explored the article on ‘my rights as fathers’, we want you to know that our family lawyers are here to guide you through every step of the way.
JB Solicitors’ expert mediation services, and family law services will provide you with efficient legal guidance.
Contact our friendly family lawyers today.
