Fathers’ rights in Australia: How to get more time with your child post-separation

In family law parenting matters, it is not unusual for parents to ask whether, under the family law system, courts favour the children having more time with their mother.

By Annabel Murray, Head of Family Law at Australian Family Lawyers, Sydney.

We’ve broken down what the legislation says about mothers’ and fathers’ rights in Australia, and key actions to take during separation if you’re a dad that just wants to spend more time with his child.

 A brief history of fathers’ rights in family law

In 2006, Parliament made several changes to the Family Law Act concerning parenting. An underlying rationale for those changes included greater involvement by both parents after separation.

Traditionally under earlier legislation, if the court made a “custody” order, then the parent who had full custody of the child had all the decision-making, which were some families resulted in a marginalised role for the non-custodial parent.

Current legislation on fathers’ rights in Australia

The current legislation presumes that each parent has equal shared parental responsibility with significant decisions concerning children’s care, welfare and development. This presumption is rebutted where there is evidence of family violence. Our discussion in this article is not about families where there is family violence.

The Family Law Act does not specify one parent as inherently superior to the other. The legislation makes it clear the child’s best interests is a paramount consideration. A child’s right to spend time with the parent is secondary to that child’s safety if that time with the parent could expose the child to an unacceptable risk issue.

The legislation requires the court to consider how parents have cared for their children in the past. This consideration is one of the many in determining what orders to make in the child’s best interest.

• Related: Grandparents’ rights in Australia
• Related: Stepparents’ rights in Australia

Potential scenarios and outcomes for parents

The child lives with the mother

Where for some families, the outcome may be that a child lives with the mother is where:

•  historically the father has not regularly cared for the children;
•  is seen to have not taken the opportunity to have done so;
• may lack the capacity to meet the children’s needs, including physical care and emotional and psychological needs.

This assumption plays out in the Australian Institute on Family Studies in their 2019 research summary. This research shows that percentage-wise more children continue to live primarily with their mother instead of sharing care between both parents. Some reasons cited include the children’s ages and the parents’ working patterns being significant in parental decision-making.

The child splits their time more equally between parents

You may be wondering how often fathers get 50:50 custody or simply more time with their children. Fathers who do get more time with their children after separation is because they have taken the opportunities to care for the children actively. 

This is often easier for dual-income families because both parents worked, and both parents often juggled the care arrangements between them depending on their working schedules. It may be easier for these families to continue to do so post-separation.

Related: 7 tips for successfully co-parenting during the school holidays.

How to get more time with your child as a father

In families where the mother was the primary homemaker parent and the father was the income-earner, the period of separation for them is really important.

Fathers need to start changing their routines to be more active in caring for their children. It is not uncommon for a solicitor to obtain information from fathers about their involvement in their children’s lives to be informed that they have never attended parent-teacher interviews, school concerts, and activities in which their children participated.

Furthermore, the challenge particularly for fathers who have had the income-earning role is their ability to carve out flexibility in their employment to be more available to care for the children on the days they are in their care.

Fathers often explain that they miss out on information about when the activities are scheduled in school because the mother doesn’t inform them of those activities beforehand. 

Fathers must be active in seeking that information for themselves, including:

• providing their contact details directly with the school;
• receiving the school’s emails; and 
• accessing and checking the school app for upcoming events, newsletters, school excursions and the like.

Fathers, after separation, need to consider children in their housing choices. This means:

• obtaining housing in reasonable commuting distance to the children’s school/day; and
• work with the other parent in having regular care, including overnight on a routine basis.

For some families, new routines, including regular care of the children by both parents, may be agreed upon. Other parents may require more time. Those families may benefit from mediation. Here, they could obtain more information about parenting after separation to make the transitions easier for the children and improve communication and trust between the parents.

Read more about parental separation and schooling here.

According to the AIFS summary 

97% of parents come to their own parenting arrangements without the need for court. Those agreed outcomes are that the mother spends more time with the children.

Those parenting matters that are before the court and where the Judge finalised the orders showed that:

• 64% resulted in the children primarily living with their mother;
• 19% with their father;
• 17% with shared care between the parents.

Conversely, in their research summary, the Australian Institute of Family Studies concluded that arrangements, where children spend most of their time with their father, are more common in orders made where litigation occurs (10–19%) than in the separated population generally (2%).

If you looking for some general advice, as a father, we’ve put together counselling advice geared towards men experiencing divorce here.

If you need any legal advice around child custody and mothers and fathers’ rights in Australia, give us a call or fill out the form below to request a call back from our friendly team.