Unified Lawyers Alex Burne

Alex Bourne

Alex practices almost exclusively within Family Law, where he has extensive experience in all family law related matters, including Property, Parenting, Divorce, LGBTI property settlements, De-Facto Relationships and Child Support.…
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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.

cartoon image of a person standing in front of legal instruments.

What are a father’s rights under Australian family law?

The Australian family law act does not favour one parent over the other when it comes to parenting matters and child custody.

The key legislation for family law in Australia is the Family Law Act 1975 (the Act). The Act talks about parenting in terms of the responsibilities of a parent and the rights of a child, rather than parental rights.

Under the Act, all decisions regarding a child and parenting matters are made in consideration of the best interests of the child. The primary factors when it comes to determining the best interests of the child are:

  • The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • The need to protect the child from physical or psychological harm.

The Act also presumes that unless there is a court order saying otherwise, the parents have shared equal parental responsibility. This equal shared parental responsibility. This means that both parents have a role in making major long-term decisions about the child and their future. These kinds of decisions include things such as health care and where they will go to school.

Unless it is unsafe – like in instances of family violence – for the child to have a relationship or spend time with their father (or mother), the parents of a child have the same rights and responsibilities as each other, regardless of gender as it is in the interests of the child to have a meaning relationship with both parents.

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.

cartoon image of a father reading a book to his child.

Custody issues a father could face

There are many potential issues a father could face when it comes to the custody of their children and spending time with them.

Some of the more common issues include:

Withholding of a child

This is more common in situations where the relationship between the parents is a contentious one. Sometimes the mother withholds the child from the father and them or another family member may attempt to establish that the child is at risk of harm when they are with their father . This can impact the father’s attempts to spend time with their children or their drive to fight for their rights as a father, making them feel undeserving of the relationship with their child.

Unless there is a family court order stating that a parent cannot be around their children, then a father or mother withholding a child from their other parent is not allowed. This type of behaviour can lead to parental alienation or even physical or psychological harm to the parties involved.

Societal norms

Often a father may not think that they have the same rights or responsibilities as the other parent of their child due to traditional societal norms and values. As we mentioned earlier, a father was once traditionally seen as the breadwinner of the family, while the mother was the child’s primary carer. While families and the roles of family members have evolved over time, it’s not uncommon for people to still apply these traditional social dynamics to their situations.

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.

cartoon image of lawyer talking to a judge about parenting matters and a father's rights after separation.

Unified Lawyers can help you

If you’re looking for a family law firm with excellent experience in parenting and child custody matters, then here at Unified Lawyers, we can help you.

Our team is very well versed in all kinds of family law matters, including divorce and separation as well as family law matters involving parents and fathers rights. So, whether you’re concerned about your rights as a father, you want to ensure that you’ll be able to spend time with your child or you’re trying to understand your options and rights after separation in Australia, our team is here to help with your family law matter.

We also offer a free, no obligation consultation. Call us on 1300 667 461 or book in to see us at one of our family law firms in Brisbane, Melbourne, and Sydney

Unified Lawyers Alex Burne

Alex Bourne

Alex practices almost exclusively within Family Law, where he has extensive experience in all family law related matters, including Property, Parenting, Divorce, LGBTI property settlements, De-Facto Relationships and Child Support. Alex regularly appears before the Federal Circuit and Family Court of Australia in often complex Family Law litigation including Parenting and Property matters.

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