Are Child Custody Rights for Fathers Different to Mothers?

When it comes to separation and divorce in Australia, there is a long-held misconception that a mother will get primary custody of any shared children over the father.

While many mothers are indeed primary carers for their children, they are not automatically awarded custody by the courts.

We share below what the Court will consider, and how custody rights for fathers are determined after a separation.


What Legal Rights Does a Father Have Post Separation?

In a nutshell, in Australia, the Family Law Act 1975 is legally obliged to consider those needs of the children only. The children’s best interests are the court’s primary consideration.

Part VIII states:
(1)  The objects of this Part are to ensure that the best interests of children are met by:
(a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Under the Family Law Act 1975, there is a presumption that both parents will have equal parental responsibility.  This means that both parents will play roles in making decisions around major long-term issues, such as anything pertaining to health issues, or where the child will go to school.

Both parents have a right to care for the child, and are accountable for their upbringing by supplying them with food, shelter, and clothes.

This will be the presumption unless there is an order in place thereby affecting the child custody rights for fathers.

An order may be put in place by the courts in an instance such as where the mother or children is a victim of physical or psychological violence or abuse.


How Often Does A Father Get 50/50 Access?

There is no rule that children must spend equal time with each parent. This is because while equal shared parental responsibility is assumed, this is not the same as equal time.

A court may decide it is in the best interests of the child to remove parental responsibility from one or both parents. A court can also decide to assign parental responsibility to a legal guardian.

A study conducted by the Australian Institute of Family Studies in 2019 revealed that around 97% of parents do not go to court when it comes to parenting: they make arrangements themselves. Around 21% had roughly equal shared time. You can read more about what a 50/50 custody arrangement looks like here.


What Percentage of Fathers Get Full Custody of Children in Australia?

It is imperative to remember that all situations and cases are different.

As mentioned above, the children’s best interests are paramount and co-parenting is generally seen as the best type of arrangement post separation.

But, there will be instances where this is not be the case.

When it comes to child custody rights for fathers, in cases determined by judges, the study revealed that 11% of court orders provided for sole parental responsibility by the father.

According to the data overall, court ordered arrangements are less likely to involve no contact between children and their father: only 3% of court orders, compared to 9% of the general separated population.

In order to have full custody of a child or children, a parent may seek an order from the Court for ‘sole parental responsibility’. The Court will only grant sole parental responsibility in instances where it believes that equal shared responsibility would not be in the best interests of the children.

An order is legally enforceable, with serious consequences for breaching it.

It may stipulate the following:

  1. That one parent will have responsibility for some or all areas of their children’s lives without the need to consult their former spouse with respect to those responsibilities specifically ordered by the Court;
  2. That the child or children are to live with one parent exclusively;
  3. How much contact the parent is required to have with the former spouse.

This order will not necessarily ban one parent from having access to their children; this is only the case if it is likely the child would be exposed to danger by the parent.


How Can A Father Get More Time With Their Children?

In determining the best interests of the child and consequently how the time with each parent will be split, one of many things the court will consider is how parents have cared for the children in the past.

It may be the case that a child lives with their mother in instances where:

  • the father has not regularly cared for the children;
  • the father is seen to have not taken the opportunity to have done so;
  • the father lacks the capacity to meet the children’s physical, emotional or psychological needs.

When it comes to child custody rights for fathers after a separation, the fathers who are more likely to be given more time with their children are those who have been actively involved in their children’s upbringing, or consistently taken the opportunities to care for them.

In some families, the mother takes a more active role in care while earning less, while fathers do the reverse.

For fathers in this situation who wish to get more time with their children, it is important to demonstrate your commitment to caring for you child. It might be a good idea to implement routine in which you are participating in their care - think about whether you have attended things like parent teacher interviews, sporting events or performances. Again, every circumstance is different, which is why it’s always worth seeking legal advice before adopting any measures.

You as a father should not be reliant on receiving information about your children’s activities through the mother; many child cares and schools are happy to include both parents in communication, allowing both parents to sign up to the online portals, apps or emails through which they communicate. It is also up to you to notify the school or daycare of any changes to your contact details.

After separation, fathers who wish to ensure adequate time with their children will need to consider them in their living arrangements, such as:

  • Living within a reasonable / commutable distance to your child’s school or daycare.
  • Working with the other parent towards having care that is regular or part of a routine (including overnight).


Need Help Navigating Your Custody Rights As a Father After Separation?

To ensure you understand your custody rights as a father, and that you are granted the time you deserve with your child, we invite you to get in touch with Pullos Lawyers today. At Pullos Lawyers, our experienced team of family lawyers have over 30 years of experience dealing with cases involving child custody and child maintenance, and can assist in drafting and formalising a Parenting Plan. To speak to one of our lawyers today, please get in touch via email, or call us in our Gold
Coast office on (07) 5526 3646, or in Brisbane on (07) 3144 1641.