Elevate Family Law

Fathers rights after separation Australia

Father's rights after separation featured image

Table of Contents

Traditionally, there has been a stigma surrounding the Family Court system and an unspoken bias towards mothers regarding children and custody disputes. 

Fathers often believe they are hard done by or treated unequally when it comes time to decide which parent will be the primary carer of the child .

However, based upon the legislation surrounding children and parental responsibility, this stigma is untrue and both parents should be involved in the development of their children equally.

Family Law act best interests of the child

If there is a family matter involving children, the major consideration of the court will always be the best interests of the child in the circumstances.

 The court must regard the best interests of the child as the paramount consideration (section 60CA), and thereafter have regard to the facts of each case and the relevant factors under section 60CC of the Family Law Act

Court determination of child's best interest

Section 60CC contains the factors on how a court determines what is in a child’s best interests, with the primary factors being:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence

In addition to the two primary factors, there are also 13 more non-limiting considerations for the court to consider. These can include:

  • any fact or circumstance the court thinks is relevant
  • the reasonable practicability of the orders
  • the parents’ capacity to meet the needs of the children
  • the relationship between the child and parent, and a variety of other factors.
parenting arrangements

Parenting Plans & Arrangements

  • In order to adequately further the development of the child and support their best interests, a parenting plan or parenting orders will need to be achieved regarding the child’s parental arrangements.
  • If both parties can compromise on an arrangement, a parenting plan can be developed and entered into without ever having to go to court.
  • But if the parties cannot agree, then it will be put to the court to decide what is in the best interests of the child.
  • In the case of a disagreement before going to court, both parties must attend a mediation to attempt to settle their dispute.
  • It is only after a failed mediation that proposed orders can be submitted to the court.
  • Each party to the parenting orders must follow the directions or they can be penalised.

Child Custody Rights For Fathers

The time a father spends with the child/dren after separation are entirely dependent on either an agreed upon parenting plan or what the Family Court believes to be in the best interests of the child.

Neither parent will automatically lose the ability to see the children as both parents have equal shared parental responsibility. Separation does not take away this responsibility nor the ability for both parents to be equally involved. That presumption and principle is automatic until proven otherwise.

There are no provisions within the Family Law Act that specify how frequently a father can see their child or which gendered parent will receive more of the parental responsibilities, this is left up to parenting orders.

There is however a provision under section 61DA of the Family Law Act that provides that it is in the child’s best interests for their parents to have equal shared parental responsibility.

This means that both parents are responsible for the major decisions in relation to the child unless there is an order determining otherwise.

This presumption may be rebutted in situations where there is evidence of family violence or potential dangers to the child but in practice it is very difficult to dispute.

Nevertheless, the presumption of shared parental responsibility does not always mean the child will spend an equal amount of time with both parents.

Court consideration - parenting orders

When considering making a parenting order that provides both parents are to have shared parental responsibility for the child, the court may consider the matters referred to in s 65DAA. This provides that the court may consider the following factors:

  • Whether the child spending equal time with each of the parents would be in the best interests of the child; and
  • Whether the child spending equal time with each of the parents is reasonably practicable; and
  • If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents

If an equal time order is not made, the court is required under s 65DAA (2) to consider making an order for substantial and significant time. There is no guidance on the time that the children would spend in each household within the Act except the significant and substantial time definition in s 65DAA (3).

Fathers rights significant time

What is Substantial and Significant Time?

A child will be taken to have spent substantial and significant time with a parent if they;

  • Spend time with the parent on not only weekends or holidays but weekdays as well;
  • Spend time which allows the parent to be involved in the child’s daily routine; and occasions that are of particular significance to the child
  • Spend time which allows the child to be involved in occasions and events that are of special significance to the parent.

Am I entitled to visitation if I pay child support?

The short answer is no. Just because you are paying child support you are not automatically entitled to contact. Comparatively, if child support is not paid a parent cannot refuse contact.

Using your child as a bargaining chip to force the other parent to pay child support is prohibited and should not be done in any circumstances.

A child has the right to meaningful relationship with both parents, if one parent is failing to meet their child support requirements, the child support agency should be contacted for assistance.

The majority of child support cases in Australia are dealt with by the Department of Human Services under the Child Support (Assessment) Act 1989 and are assessed by the Child Support Agency.

The amount paid is determined by a formula utilising :

  • the parent’s income;
  • the percentage of care of the child
  • and the associated cost of supporting the child.

Parties can however mutually agree and decide what kind of child support is going to be paid on their own terms.

In comparison to child support arrangements, childcare arrangements are determined by the Family Law Act.

As previously noted, the child’s best interests are the paramount concern when deciding the care arrangements of the child.

Whilst there are some links between childcare arrangements and child support they are determined by different means.

As a consequence, paying child support does not automatically entitle a parent to visitation as the best interest of the child is the overriding concern.

Child Support Payments in Australia

parent and child schedules

The majority of child support cases in Australia are dealt with by the Department of Human Services under the Child Support (Assessment) Act 1989 and are assessed by the Child Support Agency.

The amount paid is determined by a formula utilising :

  • the parent’s income;
  • the percentage of care of the child
  • and the associated cost of supporting the child.

Parties can however mutually agree and decide what kind of child support is going to be paid on their own terms.

In comparison to child support arrangements, childcare arrangements are determined by the Family Law Act.

As previously noted, the child’s best interests are the paramount concern when deciding the care arrangements of the child.

Whilst there are some links between childcare arrangements and child support they are determined by different means.

As a consequence, paying child support does not automatically entitle a parent to visitation as the best interest of the child is the overriding concern.

What are the child custody schedules by age in Australia?

In Australia there are no set rules surrounding child custody schedules by age and how they should work.

However, it is important to create a child custody schedule to ensure that each parent can maintain a meaningful relationship with the child whilst simultaneously ensuring the child’s best interests are met so they can develop adequately.

Additionally, if both parties agree to the schedule, it will prevent any disputes or confusion surrounding the child’s custody arrangements in the future. Some recommendations for care schedules by age are as follows:

Babies up to 18 months:

At this early stage in a child’s life constant care and routine is needed.

Babies this age rely on their mothers for survival, and it is more common that the baby live with the mother and visit the father due to the babies’ maternal needs.

From carrying the child, to delivering and nursing them mothers are undoubtedly connected with their children, nevertheless this does not lessen the importance of the child to form a bond with their fathers.

Baby needs regular contact with both parents and a plan that allows them to follow the same eating and sleeping routine no matter who they are with. Time with the father is needed for the baby to learn who the father is and to form a paternal bond.

Toddlers and pre-schoolers:

Toddlers and pre-schoolers can start to spend more time away from each parent and even start doing overnight stays with the non-primary carer.

As toddlers develop, they may become attached to one or both parents making it imperative the schedule developed allows for frequent contact with both parents.

Parents can use telephone and Facetime calls to contact the child when they’re apart to help manage the transition and change.

School age children:

School age children can spend long periods away from each parent including alternating weeks at each parent’s house.

The concept of a routine should be developed, and a schedule can be provided to the child so they know which parent they will be with and where at any given time.

Child custody schedules can be more flexible for school age children because they’re slowly developing independence and learning to deal with change.

parent and teenagers

Teenagers:

At this age teenagers may wish to have an input in their living arrangements, and this should be taken into consideration when developing the custody schedule.

Teenagers are transitioning into adulthood and may wish to spend time with their friends or have commitments outside of school like part time jobs or sporting activities. To determine parenting time, the teenager should be able consult with both parents.

Evidentially, there is no one size fits all approach, and it is left up to the discretion of the courts and individual parents to determine what care arrangements will be in the best interests of the child.

Whatever custody schedule is developed it should be made with flexibility as evidentially different stages of a child’s life require different care arrangements to ensure optimal development.

Can a parent deny another parent contact with a child?

A parent cannot deny another parent access to their children in Australia. If a parenting order has been made that provides which parent a child should spend time with, live with or communicate with and these obligations are not met without an order of the court or consent from the other parent, then an offence has been committed.

When a parenting order has been made, both parties must do everything the order says. When complying with the orders, the parents must not be passive but instead take positive action and take all reasonable steps to ensure that the order is put into effect. 

Additionally, parents must guide and also positively encourage the child to comply with the orders.

What to do if parent is withholding contact with the child

  • Communication and passive negotiation.
  • Counselling.
  • Getting legal advice about how to negotiate an agreement with the other parent.

It is imperative to refrain from any sort of violent or abusive behaviour no matter how frustrating the situation may be.

The courts treat the need to protect the child from physical or psychological harm or violence as the number one concern in regard to their best interest. When taking steps to try recover the child, it is best to attempt to settle the dispute outside of court as it less expensive, and often more effective.

If a parents continues to withhold a child or parenting orders are breached there are steps that must be taken before you can go to court.

What to do if parenting orders are breached?

court order

A person is seen to have breached an order if :

  • they do not intentionally comply with the conditions imposed in the order or;
  • make no reasonable attempt to comply with the order.

If you believe that the other parent has breached the parenting orders without a reasonable excuse, you should seek legal advice.

Before you file an application in relation to a child matter, you are required (on most occasions) by the Family Law Act to obtain a certificate from a registered Family Dispute Resolution practitioner proving that you attempted to resolve your dispute outside of court 

This includes matters relating to breached parenting orders.

If Family Dispute Resolution is unsuccessful, you may then apply to the court for orders using an “Application – Contravention”.

The party who has applied for the application is required to prove the allegations of the breach with evidence, usually in the form of affidavits.

If the respondent claims that they had a reasonable excuse for a breach, they must show proof of the reasonable excuse.

 

Penalties for breaching a parenting order

If it is found that you have breached a parenting order without reasonable excuse, there are a number of penalties that may apply based on the circumstances. These penalties are listed in Division 13A of Part VII of the Family Law Act and can include but are not limited to:

  • Orders for you to attend a post separation parenting program;
  • Orders for you to compensate time lost with a child as a result of the contravention;
  • Orders for you to pay all or some of the legal costs of the other parties;
  • Require you to participate in community service;
  • Fines; and
  • In the most serious of cases imprisonment.

What is a Recovery Order?

A recovery order may be made if you breach a parenting order by failing to return the child as required. This is an order to find and recover the child giving the police the power to search any vehicle, vessel, aircraft, or any other premises where the child may be found.

Getting Assistance

If you need any legal advice around parenting, child custody and mothers’ / fathers’ rights in Australia, get in touch with our friendly team today!