Many fathers worry that separation means they will be pushed to the edge of their children’s lives. That fear is understandable, especially where communication has broken down or the children are being withheld.
The short answer is that Australian family law does not favour mothers or fathers. The Court focuses on the child’s best interests. A father can seek parenting orders about where the children live, time with them, communication and decision-making, but the order must be safe, practical and child-focused.
The law does not prefer one parent by gender
Parenting law is not built around a mother’s rights or a father’s rights. It is built around the child’s best interests. In deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration: Family Law Act 1975 (Cth) s 60CA.
The current best-interests framework is in s 60CC. The Court considers safety, any views expressed by the child, the child’s developmental, psychological, emotional and cultural needs, each proposed carer’s capacity to meet those needs, and the benefit to the child of relationships with parents and other significant people where it is safe.
This means a father who has been actively involved in the children’s care should not assume that role is legally irrelevant. It also means a father should not assume that equal time will be automatic. The focus is the children, the evidence and the practicality of the proposed arrangement.
The old equal shared parental responsibility presumption is gone
It is important not to rely on outdated advice. The former presumption of equal shared parental responsibility was removed by the 2024 parenting reforms. The old pathway that required the Court to consider equal time or substantial and significant time in certain circumstances has also been repealed.
Parents still have parental responsibility unless a court order changes that position. Section 61C says each parent of a child under 18 has parental responsibility for the child, subject to any court order. But the Act now makes clear that this is not a presumption the Court applies when deciding parenting orders.
If it is safe to do so, parents are encouraged to consult about major long-term issues, such as schooling, health, religion, culture, the child’s name and major living-arrangement changes: Family Law Act 1975 (Cth) s 61CA. A parenting order can allocate decision-making jointly or solely.
What fathers can ask the Court to order
A father can apply for parenting orders in the same way as any other parent. Section 65C allows either or both parents to apply. It also allows the child, a grandparent or another person concerned with the child’s care, welfare or development to apply.
Parenting orders can deal with where the children live, the time they spend with a parent, communication by phone or video, holidays, special occasions, parental responsibility, decision-making and practical arrangements for changeover. The scope of parenting orders is set out in s 64B.
Our article on what parenting orders can cover explains that structure in more detail.
What if you are being denied time with the children
If there are no parenting orders, the first step is usually to try to resolve arrangements safely and in writing. That may involve direct communication, lawyer-assisted negotiation or family dispute resolution. If family dispute resolution is required, a certificate under s 60I is usually needed before filing a parenting application, unless an exception applies.
If parenting orders already exist and the other parent is not following them, the options are different. You may need advice about compliance, make-up time, negotiation or a contravention application. Our article on contravention of parenting orders explains the general pathway.
Do not respond to withheld time by withholding child support, making threats, turning up unexpectedly at school or changeover, or breaching an intervention order. Those steps can harm your position and may create safety concerns.
When withholding may be treated differently
There are situations where a parent may have a reason for not following an arrangement, especially where there is family violence, risk of abuse, serious safety concerns, illness, or an urgent welfare issue. The existence of a concern does not mean either parent can do whatever they like, but it does affect how the issue should be handled.
If you are accused of creating a risk, get advice before sending long messages or filing material. If you believe the children are at risk with the other parent, get advice before withholding them or changing arrangements. Parenting disputes can escalate quickly when safety and time are both in issue.
The Court will want to know what happened, what evidence supports the concern, what steps were taken to keep the children safe, and what arrangement is proposed now.
Building a child-focused proposal
A strong parenting proposal is practical. It explains where the children will live, how school and activities will be managed, how changeover will occur, how communication will work, and how decisions will be made.
For fathers seeking more time, evidence of past involvement can help. This may include school involvement, medical appointments, routines, messages about care, photographs of ordinary parenting, travel to activities, payment of child-related expenses and a history of reliable time.
The proposal should also deal honestly with practical issues. Work hours, distance between homes, the children’s ages, breastfeeding, special needs, family violence concerns, school location and parental communication can all affect what is workable.
Family dispute resolution and negotiation
Many parenting matters start with family dispute resolution. It can be useful when both parents can participate safely and make decisions without pressure. Preparation matters. Know what you are asking for, why it benefits the children, and where you have room to compromise.
Our article on preparing for family dispute resolution sets out practical steps before mediation or FDR.
If agreement is reached, consider whether it should be documented as consent orders. Parenting plans can be useful, but consent orders are usually stronger where certainty and enforceability matter.
What helps or hurts a father’s case
Helpful conduct includes staying calm in writing, turning up on time, keeping child-focused records, following existing orders, encouraging the children’s safe relationship with the other parent, and proposing arrangements that fit the children’s routines.
Unhelpful conduct includes abusive messages, using the children as messengers, speaking badly about the other parent to the children, ignoring safety concerns, making unilateral school or travel decisions, or treating the dispute as a contest between adults rather than a plan for the children.
The Court does not expect separated parents to agree about everything. It does expect parents to focus on the children’s welfare and to act consistently with safe and workable arrangements.
The next step
Fathers should not assume the system is against them, but they should also avoid relying on outdated statements about automatic equal time or equal shared parental responsibility. Current law requires a careful best-interests analysis.
If you need advice about time with your children, decision-making or urgent parenting issues, our parenting arrangements service can help you work out the next step.