Parenting: A Father’s Rights in Australia After Separation

Father Rights After Separation

Many fathers don’t know their rights after a separation. They immediately assume that the mother of their child has more rights regarding the welfare of their child due to social constructs and biases.

This can cause fear among separated fathers, with a large concern being that they might lose access to their kids in the custody process.

In this article, we’re going to help you understand parents and father’s rights after the breakdown of a relationship.


Overview of a Father’s Rights in Australia

When it comes to a father’s rights after separation, Australian family law recognises that all parents have responsibilities rather than rights when it comes to their children. And that fathers have the same responsibilities as mothers when it comes to their children.

Many people use the term “rights” in regard to their rights as a parent, however, in the Australian family law system, it is the child who has rights. Two of the child’s primary rights, also known as the best interests of the child, are that they have the right to have a meaningful relationship with both parents, and they have the right to be protected from harm.

Contrary to popular belief, the Family Law Act 1975 does not prioritise either parent over the other based on gender and the Federal Circuit and Family Court will make decisions based on the best interests of the child, rather than the gender of the parent.

Unless there is an order stating otherwise, the Act also requires both parents to have an equal say in the major long-term decisions that can affect the child, like the child’s education, health, and religious upbringing – this is known as equal shared parental responsibility.

Parents can actually work together to come up with a parenting plan that meets the best interests of the child, rather than relying on the court to make decisions for them.

If parents are unable to agree on parenting arrangements, they can try negotiation and mediation, and failing these, they can apply to the court for parenting orders.

In making these orders, the family court will take into account a range of factors such as:

  • child’s relationship with each parent
  • the child’s wishes (if they are old enough to express them)
  • the practicality of any proposed arrangement.


How long does a father have to be absent to lose his rights in Australia?

This is a common question we’re asked – in this context, the use of the word ‘rights’ most commonly refers to access or the ability to see and spend time with their child. There is no specific time limit for a father to lose his parental rights or responsibilities in Australia.

In fact, the Australian Family Law Act even encourages both parents to have a meaningful relationship with their child, as long as it is safe and appropriate and in the best interests of the child – even if a parent has been absent for a period of time.

How often do fathers get 50/50 custody in Australia?

According to the study conducted by the Australian Family Institute in 2014, the most common living arrangement for children 18 months after separation is for them to live with their mother most of the time, meaning they spend at least 66% of nights in a year with her.

The second most common arrangement is for children to spend all of their nights with their mothers and only see their fathers during the day. This custody arrangement is particularly common for children under two years of age.

In 21% of cases, care time was shared between parents, meaning the child spent between 35% and 65% of nights in a year with each parent. However, most shared-time arrangements involved more time with the mother. On the other hand, the arrangements for equal time occurred in less than 10% of cases.

Finally, the survey found that it is relatively uncommon for children to have no contact with their father, as this occurs in only 9% of cases.

It’s important to note that while it is common for a mother to spend more time with their child, these outcomes are dependent on numerous factors unique to their situations. There are many instances where a father is awarded sole custody and in only 3% of cases where a father has lost access to his child. It is also prudent to point out that this research is over ten years old and could be outdated as in our experience it is far more common for children to share their time equally or near equally between their parents.


Can a mother deny a father access to his children in Australia?

No, a mother cannot deny a father access to his children in Australia. A father can not deny a mother access to her child either. The only exception to this is if they are in immediate danger or believe they are in immediate danger.

If either parent denies access to the children, the parent should seek legal advice as soon as possible and apply to the Court for parenting orders to ensure that the best interests of the child are protected.

Keep in mind, however, that the Court will not automatically grant a parent access to his children, especially if it will not help the child.

For example, if the Court determines that it would not be safe for the child to spend time with the father or mother, it may make orders that limit or restrict the father’s or mother’s access to the child.

What to do if a mother is withholding a child from their father in Australia?

If a mother is withholding a child from their father in Australia, there are a few steps that the father can take to try and resolve the situation:

Try to communicate with the mother

If possible, the father should try to communicate with the mother and attempt to resolve the issue amicably. This may involve discussing the reasons for denying access to his child and trying to come to an agreement.

Seek legal advice

If communication with the mother is not possible, the father should seek legal advice from family law experts. The lawyer can advise the father of his legal rights and options in family law matters and assist in drafting correspondence or making an application to the Court for parenting orders.

Attend mediation

In most cases, the Court may require the parties to attend mediation before making an application for parenting orders. Mediation is a process where an independent third party assists the parties to reach an agreement. This can be a useful way to resolve disputes without the need for court intervention.

Make an application to the Court

If mediation is unsuccessful or not appropriate, either parent can make an application to the Court for parenting orders. The Court will consider the best interests of the child and make orders that are designed to promote the child’s relationship with both the mother and father.

It’s important to note that each of the above steps is relevant for either parent if their child is being unlawfully withheld from them.


Father’s rights on overnight stays

Overnight stays refer to the amount of time a child spends with their parent overnight, as part of their parenting arrangement. This means that the child will spend one or more nights with the parent, as opposed to spending time with one parent during the day and returning to the other parent’s care at night.

Overnight stays can be a significant aspect of a parent’s relationship with their child, as it allows for the parent to have extended quality time with the child and to provide care and support during the night.

Overnight stays can also help maintain a close relationship between the child and the parent and can help the child feel secure and comfortable with both parents.

As for the amount of overnight stays a father has, it will depend on the individual circumstances of the family, and the Court will consider the same factors for child custody or parental responsibility.


Reasons to deny overnight visitations in Australia

Generally speaking, denying access to a child in Australia is not allowed. However, the court may limit or completely deny a father contact with his child under extreme circumstances.

Below are only some of those situations:

  • If there is evidence of family violence, child abuse, or neglect
  • If the child is very young or not yet able to handle overnight stays
  • If the child does not have a close relationship with the father
  • If the father has not been actively involved in the child’s life
  • If the father lives a significant distance away from the child’s primary residence, or if the proposed arrangements would disrupt the child’s routine
  • If the child expresses a strong preference not to have overnight visits with the father

If you’re a parent concerned about the safety of your child or your current parenting arrangements, we’re here to help you understand all of your options.


How Clarity Lawyers Can Help You

As a family law firm in Australia, we can provide legal advice and guidance on your options as a separated father or mother who wishes to have more time with your children.

We can also help you negotiate with the other parent or their legal representative to come to a joint decision or, if necessary, seek a court order to resolve any disputes.

If you’re a parent who wants to know their responsibilities and options after separation book a consultation with our family law team today and we’ll help you navigate this tough process!

NB the terms ‘access’ and ‘custody’ are no longer used in Australia.  We now use terms such as ‘spend time with’ and ‘live with’ as well as ‘equal time’.

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Rli Samantha@2x
Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


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