A Father’s Rights After Separation in Australia

A divorce or separation can be one of the most challenging times in a person’s life – a time that is made even more difficult when children are involved.

When a relationship breaks down, there are a lot of things that need to be thought about and taken into consideration. In addition to working your way through your own personal upset, you also need to take care of the more practical things, like working out who gets what from your asset pool.

If you have children, then you also need to work out new living and parenting arrangements. For many dads, when they separate from their child’s parent, there arises a real concern over their rights as a parent. This concern stems from the common misconception that a mother has more rights as a parent than a father.

In this piece, we’re going to discuss the rights of separated fathers (and parents in general), answer some of the common questions we’re asked about father’s rights after separation, including how often do fathers get 50 50 custody Australia as well as provide helpful tips on how to be a good dad if you do separate.

Whether you’re currently involved in the early stages of a separation or you’re already deep in the process of divorce, keep reading to learn more about your rights as a father.

A mother’s rights vs a father’s rights – a common misconception

Many parents incorrectly assume that a mother has more parenting rights than a father and that upon separation, custody or parenting arrangements are going to favour the mother.

This belief likely stems from more traditional family roles in which the husband/father was the breadwinner for the family, and the wife/mother was the primary carer of the child/ren and the homemaker for the family.

If you’re wondering how often do father’s get 50 / 50 custody of a child in Australia, unfortunately, it’s not a black and white or simple answer. Every situation is entirely unique and needs to be treated so, however, each parent has the same chances of having custody of the child with the way the Family Law system is structured.

Some mothers do spend more time with their children after a divorce or separation, however, this is often decided by both parties, and is reflective of each person’s role prior to the divorce or separation rather than decided by the courts or based on the law.

The way a parenting and custody arrangement will work for your family is different to any other family and is dependent on a variety of different circumstances. Factors such as where parents live, the work hours and schedules of the parents, the commitments of the parents and children, and the children’s wishes, are only some of the things that could impact the parenting arrangements that works for you.

So, it’s not about whether you’re the mother or father when it comes to your rights and responsibilities as a parent.

Custody rights of a father: Can a father win custody?

The custody rights of parents are determined by either an agreement made between the parents or by a decision made by the family court.

Agreements between parents may be made privately or through dispute resolution services, such as mediation, and a parenting agreement can be oral or written. A written agreement – known as a parenting plan – can be approved and formalised by a court to make it legally enforceable – this is known as a consent order.

Both parents have the same legal rights when it comes to the custody of their children. It is the unique circumstances of the parents and children that will help to shape a suitable custody arrangement. A father could have 50/50 joint custody of their children, or they could end up with full sole custody. Factors such as the work schedules, where they live, the needs of their child, and various other factors all play a role in working out the best custody arrangement – rather than whether you’re the mother or the father of the child.

It’s important to remember that both the mother and father or other parent start on an equal footing under the Australian Family Law Act, ergo a father’s rights after separation are not disadvantaged under the family law system. The most important factor is that decisions are made in the best interests of the child.

This can be difficult to accept because this might mean that child spends less time with one parent than the other, rather being able to spend equal time. However, decisions about parenting and child custody need to be made without emotions clouding the understanding of what is best for the child.

Tips to make fathering easier after separation

Though you will be going through many changes when you separate or divorce from a partner, if you have children, they should be your first priority. Separation can make parenting more challenging but this doesn’t mean to say that being a good dad isn’t possible. Here are some of the things you can do to make being a parent easier during a divorce.

Be involved

As we mentioned above, it can be common for societal norms to influence parenting and custody roles. This can sometimes see fathers taking a step back or even disengaging from the situation and not speaking up about what they want.

We recommend that fathers play an active role in the decision-making process, especially when it comes to talking about custody arrangements and parenting plans. Parents have the same responsibilities and access rights to their children.

Develop a parenting plan to provide consistency

Separation and divorce are a time of change for everyone involved, including both parents and the children.

To ensure everyone understands their responsibilities and how parenting matters should be handled moving forward, a parenting arrangement should be developed. This could include details such as where the child lives and custody schedules, as well as how decisions are to be made.

If you and your former partner plan to co-parent, a parenting arrangement can help to outline each of your responsibilities, as well as provide consistency to your kids.

You can learn more about co-parenting here.

Keep the kids out of disputes

Your children should never be involved in arguments or disagreements you may have with their other parents. Nor should they be used as messengers or pawns in your relationship.

Your child/ren has the right to have a meaningful relationship with both of their parents, and even though they may have done something that has hurt or upset you, this is not something that a child should be burdened with.

If you do need to talk about the other parent to your children, ensure you do so in a healthy and positive way.

Listen to your child

During the early days of a separation, it can be common for parents to try to shield their kids from the reality of the situation.

While we highly recommend that you don’t let the kids be involved in disputes, however, we also suggest that you take the time out to listen to your children about their thoughts.

Children are often keen observers and aware of the situation, and they may even have an opinion – after all they are a stakeholder in the situation.

Make sure you ask them how they are feeling and understand their thoughts. You may find that over time they become more open and comfortable with you as well, which can help to strengthen your relationship.

Take care of yourself

One of the best things you can do for your child is to take care of yourself including your emotional and psychological needs. This may mean that you undertake counselling or therapy to discuss your thoughts and feelings.

Talk to a family lawyer

Many people think they only need to talk to a lawyer when they are involved in a legal dispute or matter already, but that is not the case.

You can talk to a family lawyer at any point – whether you’re just enquiring about something or already involved in a complex legal matter.

For example, if you’re contemplating separation but you want to know where you stand legally as a parent, you’re already involved in a divorce and need help understanding the steps you need to take, or your former partner is withholding your child from you, you can talk to a family lawyer.

A family lawyer who is experienced in divorce, separation and parenting matters can provide you with advice and information to help you make informed decisions, as well as negotiate and represent you in legal disputes too.

Don’t leave your parenting matter until it’s too late, be proactive and discuss it with a family lawyer today.