There is a common misconception that when a couple separates or divorces, the Court will automatically favour the mother for primary custody and parental responsibility. Every case and relationship is unique, and as long as you are seeking parental rights that are in the best interests of the child, then the Court might make a decision in favour of the father. Here is what you need to know about father’s rights after separation in Australia.

What Does Legislation Say About Father’s Rights?

The Family Law Act 1975 does not specify that one gendered parent will receive more parental responsibility than the other parent after separation. In fact, legislation presumes that both parents have equal shared parental responsibility and have a role in making major, long-term decisions such as school and health issues. The father’s rights after separation are equal in Australia, meaning, a father could have at least 50% time with their child. Both the mother and the father can make a parenting agreement or obtain a consent order regarding parental responsibility. However, the Court will always prioritise the safety of the child, and if there is concern that the child’s safety is at risk with either parent, then the Court will most likely rule in the other parent’s favour.

The Best Interests of the Child

As with all family law issues, in order to determine the mother or father’s rights after separation, the Court will always focus on what would be in the best interests of the child.

Section 60CC of the Family Law Act 1975 states that the Court determines the best interests of the child based on the following primary considerations:

• “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 from being subjected to, or exposed to, abuse, neglect or family violence.”

Other considerations include the child’s relationship with each parent, how much each parent is willing to participate in making long-term decisions, and any views expressed by the child.

How Can a Father Win Custody of His Child?

In order for the father’s rights after separation to include full custody of his children, there are two clear options.

Firstly, if both parents agree that it is best to split custody of their children, or for the father to receive more than 50% custody, then you can make a parenting plan without having to go to court to formalise the agreement.

If the parents cannot agree on a custody schedule, then it is up to the Family Court to determine whether or not it is in the best interests of the child to live with the father. The Court will hear submissions from both parents as to why they should receive equal or sole custody of the child, and then make a final decision with a parenting order. However, both parties must first attend Mediation or Collaborative Law where a mediator will attempt to bring the mother and father to an agreement. Only then can an Order be submitted to the Court and become legally binding.

What About Legal Rights to an Unborn Child?

The father’s rights after separation are limited in Australia in relation to an unborn child. Section 67B of the Family Law Act 1975 refers to the father making a proper contribution towards: the maintenance of the mother for the childbirth maintenance period; the mother’s reasonable medical expenses in relation to the pregnancy and birth; the reasonable expenses for the mother’s funeral if the mother dies and the death as a result of the pregnancy; and the reasonable expenses for the child’s funeral if the child is stillborn or dies and the death is related to the birth.

The Courts have no power to make an Order in relation to an unborn child. The father of an unborn child has no legal standing to prevent a pregnant woman from moving between States and Territories up until the birth. Once the child is born, the child also has rights, and their rights may impact their mother’s rights. The mother and father can then apply to the Court for any Orders relating to parenting arrangements.

What If the Mother Withholds the Child?

If you, as the father, find yourself in a situation where the mother is withholding your child, then you may be able to apply for a Contravention Application. A father can send this application to the Court, notifying them of the breach of the parenting order. The Court may then require the mother withholding the child from the father to pay a fine or compensate for lost time. The only instances where it is acceptable to withhold a child from the other parent is if the other parent is violent towards the child, taking drugs in front of the child, there is risk of child being exposed to sexual abuse, and the other parent may expose the child to harm.

Speak to Our Family Lawyers About Father’s Rights After Separation in Australia

Father’s rights are just as important as mother’s rights after separation in Australia. It is not uncommon to hear that fathers feel disadvantaged by Australia’s legal system. We are here to tell you that your rights matter, especially if you believe that your child will be better cared for in your custody. Please get in touch with our team of specialist family lawyers to see how we can help your case.