We sometimes have fathers approach us, worried they will not be treated fairly in the family court system because of a perceived stigma against dads. So we thought we’d take the opportunity to clarify a few misconceptions about fathers and their access to their children after divorce or separation. If you are a father and you have the genuine intention of parenting your children after divorce or separation, there are certain things you should be aware of.
Even though the law is gender neutral, and the outcome of family law cases go both ways rather than favouring mothers over fathers, it’s still the case that both genders feel the other gender is favoured. Dads are often particularly concerned that some judges may still hold old-fashioned views and believe mothers are the better caregivers. However, stereotypical gender roles are simply not considered by the courts, who instead are governed only by the welfare principle—the best interests of the child.
Under the Family Law Act 1975, there’s no such thing as “mother’s rights” or “father’s rights”. It is purely about the child’s rights. The Act clearly states that “a child has a right to be known and cared for by both parents”. Practically, this means courts are not interested in a parent’s gender, only with ensuring the child can spend time with each parent where reasonably possible after divorce or separation.
The courts balance the right of the child to have a meaningful relationship with both parents against the need to protect children from harm (physical or psychological). This need for protection outweighs the benefit of having a meaningful relationship with both parents and the presumption of shared care no longer applies in cases where there is family violence, neglect or other issues affecting a child’s safety. Assuming however that there are no such issues preventing a child spending time with each parent, there are also a range of other factors that courts consider in determining parenting orders.
Practicality
This relates to your availability to your children. For example, if you are a dad who works very long hours and can’t really fit into your children’s schedules, this will clearly need to be taken into account by the courts. If a judge has to choose between having a child placed in daycare fulltime while the custodial parent works fulltime, when the option exists for the other parent to care for them, the court is going to be more inclined to place the child with the parent who can care for the child. This is not a criticism of the use of daycare per se, but the use of daycare needs to be seen as not being excessive.
Another practical issue the courts will consider is the distance between you and your ex’s homes: if you live far away from your ex, this will make it less likely that courts will order shared time.
So if you are a dad seeking shared time, give serious thought to the practicalities of how the arrangement will work with your work and life commitments.
The ability of parties to communicate
This is very important. Effective communication about the day-to-day care of the children after divorce or separation needs to be possible. If it is not possible, courts are unlikely to make an order for shared custody. Of course, you don’t need to be best friends with your ex, but you do need to be able to civilly communicate regarding the children. And unfortunately, courts will also be less likely to order shared custody if only one parent is able to be civil and the other is not. This is because from the courts’ perspective it does not matter who’s ‘fault’ it is that the parents cannot effectively communicate, but because a lack of effective communication is likely to have a negative impact on the children.
Children’s age
The age of the subject children is really important too. It is a matter that is often debated as different experts have different opinions on this, but generally, the younger the child is, the more important it is for them to have consistency in their primary caregiver for reasons of attachment formation and separation anxiety. And when a baby is still being breastfed, it’s even more clear-cut: the court’s will not remove a child from a breastfeeding mother, and will not accept arguments that the mother “can just express milk”. However, fathers are not simply cut out of the picture. With babies, courts will usually grant a non-custodial parent shorter periods of time, but more frequently, to ensure the bond between the baby and its father is maintained.
Other factors the courts consider in determining how to allot time include how much time you have spent with the kids in the past, whether you have financially supported them, the effect of any change to living arrangements on the children, how each parent can provide for the children’s needs, and the parents’ attitudes to the children and the responsibility of being a parent. The children’s views are also taken into account, with greater weight given as the child gets older.
Paying child support
Both parents have the duty to financially support their children and who wants to be known as a ‘deadbeat dad’ who avoids paying child support? Times do get tough and sometimes people lose their jobs, but it’s vital to make a good faith effort to meet your obligations. It’s not acceptable to simply say, “I was a former CEO, so I’m not working at Woolworths, because it’s below me”. If your circumstances have changed and you need to reduce your child support payments, take the appropriate steps through the correct channel, namely the Child Support Agency, to address this. Meanwhile continue to pay, even if it’s not the full amount.
Unofficial dads’ rights
The default under the law is that when two unmarried people have a child and there is no official documentation, the woman who bore the child has legal custody. But even when a dad is initially not officially recognised, it’s entirely possible to formalise things in the courts to obtain parenting orders. Fathers who wish to have a relationship with their child after divorce or separation should be proactive and step up in expressing their desire to be a part of their children’s lives, and the courts will determine if this is in the child’s best interests. To prove parentage, it will be necessary to have tests done (usually DNA). You can find a list of accredited parentage testing laboratories on the Attorney-General’s page here.
Falsely accused of violence?
If you are concerned that your ex may try to use protection orders as a strategic tool, consider having a witness present during your time with your child or during changeovers. You may even record video as a ‘virtual witness’ to help prove to a judge that you are no threat to your children. If your ex has already obtained protection orders against you that you know are not warranted, stay cool and urgently obtain legal advice on your next steps.
Denied access to your kids?
Research from the Australian Institute of Family Studies has shown that the majority of fathers, and about half of all mothers, wish to see more involvement by the father in their children’s lives after divorce or separation. But if you are a father and your children’s mother does refuse you access to your children, do not engage in endless arguments and please, whatever you do, do not withhold the child if you are able to spend time with them. Instead, obtain legal advice as soon as possible, and make sure you take the steps you are advised to take by your family lawyer.
What if your ex simply takes the child to live far away?
You can obtain an injunction against the relocation of your child. This is a court order that means a party must do something or refrain from doing something. If the party does not comply they become liable for civil and criminal penalties including potential jail time.
At the heart of the matter, it’s important to really understand that it’s not about you or your ex, it’s about the kids. In parenting disputes, what’s also important to realise is that research has shown that the amount of time each parent spends with the child is not as important as the quality of the parents’ co-parenting. Anne Hollands of the AIFS recently discussed the findings of their “Experiences of Separated Parents” study, and noted that: “How much time the children spend with each parent is not the most important thing. The most important thing is the co-parenting, which is now the standard that we’re trying to encourage. It’s actually short for ‘co-operative parenting’, so the emphasis needs to be on the ‘co-operative’.”
If you are a dad going through divorce or separation and determined to be part of your kids’ lives, the process should be to mediate, re-mediate, and be prepared to give a little ground in pre-court negotiations where you can (and you always can). Even if your matter does proceed to court, a judge will be able to see the effort you’ve made to reach a civil agreement, which will be favourable to you.
Kids need their dads and the law has formalised this—so don’t ever feel your gender will prevent you from having a relationship with your kids. Give us a call to discuss any of the above issues and let us help you stay in your child’s life after divorce or separation–please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
