In this article, we discuss commonly asked questions relating to a father’s rights after separation.
Take-Home Message
At Law By Dan our family lawyers have helped hundreds of men understand their rights after separation in Australia.
Separation is a highly emotional time for all involved. However, in the case of men, many fathers are confused about their rights after separation primarily because there is often a lot of misinformation about family law being weighted more towards women.
Because of this, men are often more stressed than they need to be and can make the wrong decisions because of such stress.
The first myth that needs to be debunked is that courts favour women when it comes to child custody. This is certainly not the case. If the court believes that it is in the best interests of the child or children that they live with the father, then that’s what will occur.
This myth may have derived from the fact that generations ago men were not as active as perhaps they are now in the care and support of children. Further, there is an abundance of research that proves that the relationship between children and their father is equally as important as the relationship with their mother.
Fathers Rights After Separation Issues
When it comes to discussing a father’s rights after separation, our family lawyers are often assisting men with the following matters:
- Child custody disputes
- Getting access to their children when they have been denied access by the child’s mother
- Obtain recovery orders from the court to locate and return the child in circumstances where the mother has relocated the child without the father’s consent
- Helping fathers minimise the risk of their child being relocated without their consent
- Assisting fathers with orders that may allow them to relocate with the child
Fathers Rights After Separation – How Do Courts Make a Decision?
The primary principle that drives the Family Law Court and relevant legislation are that decisions be always made in the “best interests of the child.” There is no such thing as the “best interests of the father” or the “best interests of the mother.”
On this basis, any orders that are made by the Court always are based on the assessment of what are those best interests and how can they form part of an agreement.
How the court become informed about the best interests of the child is through the fundamental belief that both parents should play a role in the lives of their children.
In determining the “best interests of the child” the Court has two primary considerations:
- the benefit to the child of having a meaningful relationship with both parents;
- the need to protect the child from psychological or physical harm from preventing exposure or subjection to abuse, neglect or family violence
Logically the Court gives significant weight to the latter because of the necessity to protect the child from harm.
In deciding such matters, the Court may consider:
- the child’s views and their maturity and understanding
- the child’s relationship with each parent
- the willingness and ability of each parent to maintain an ongoing relationship with the child and the other parent
- the effect of the change in circumstances on the child
- the maturity, lifestyle, sex and background of the child etc
- the right of an Aboriginal or Torres Strait Islander child to their culture
- any family violence involving the child or a member of their family
Fathers Rights after Separation: Shared Parental Responsibility
Shared parental responsibility derives from an agreement that you and your ex-partner communicate and decide together on decisions that impact upon the long-term interests of your child. Such matters include education, religious and cultural matters and any issues that concern themselves with the welfare, care and healthy development of the child.
It goes without saying that ensuring that decisions are made in the best interests of the child emanate from an agreement between you and your ex-partner. The reaching of such an agreement can at times be difficult, particularly if your relationship with your ex-partner is volatile
In such circumstances, it’s important sinner rather than later, attempt to reach a resolution on those matters relating to your children.
Fathers Rights After Separation – What Are Parenting Orders?
Basically parenting orders are orders that are made by a court that are to do with the parenting arrangements of your children. The order derives from an agreement between you and your ex-partner or made by the court itself if you cannot agree, that deals with one or numerous matters that you are both in agreement on:
For example, an order may set out:
- who children will live with
- the time the child will spend with each parent and other people (grandparents) if applicable
- how parenting decisions will be made
- what type of parenting decisions can be made unilaterally (without the other parent’s agreement).
Fathers Rights After Separation – What Happens If We Cannot Agree?
If you and your ex-partner are in a position where you think you can negotiate on such matters, then doing so through a guided mediation can prove very effective at a cost that is substantially cheaper than having lawyers involved. In this context, Mediations Australia is a great place to reach out to.
If you and your ex-partner are finding it difficult to reach an agreement, consulting with one of our family lawyers at Law By Dan is a good idea.
