Fathers’ rights when separating

There is a common misconception that when a couple separates or divorces, the court will favour the mother for primary care and parental responsibility for the children. While every case is unique and different depending on the circumstances, the court considers the child’s best interest before determining the parents’ rights.

The Legislation and how it applies to parents’ rights

The Family Law Act does not favour one parent more than the other when they separate. It presumes that the parents have equal shared parental responsibility for the children.

Parental responsibility refers to the decision making power of the parents about the long-term care of the child, such as health, education, religion, and culture. This means that when separating, both parents have the same rights about long-term decisions for their children and must agree.

When making a parenting agreement, the paramount consideration is to ensure the arrangements are in the children’s best interests. Under the Family Law Act, the primary considerations about the children best interest are:

  • The benefit of the child having a meaningful relationship with both parents; and
  • The need to protect the child from physical, psychological harm from being subjected to abuse, neglect or family violence.

Other considerations include the nature of the relationship between the child and the parents, the child’s views, the extent to which the parents have taken the opportunity to make decisions about the child, communicate and spend time with the children, among many other considerations.

How do we agree about parenting once we have separated?

Suppose the parents can agree about the parenting arrangement for the children, such as where the children will live, spend time with the other parent and their ongoing care needs. In that case, the arrangements can be formalised into a binding document such as a parenting order (consent order) or an informal document such as a parenting plan.

If the parties cannot agree, they can engage with a Family Dispute Resolution service that helps facilitate negotiation. Alternatively, you can seek the assistance of a lawyer to help you negotiate an agreement. If the parties still cannot agree, they may need to go to court. Please speak to our lawyers today about the necessary steps before going to court.

Once an agreement has been reached, we always recommend this is formalised into a binding document such as a parenting order (consent order). This requires an application to the court for the order. This is a straightforward process as it is done by agreement. Typically, the parties do not need to attend court to have this finalised.

What if the mother withholds the children?

If you have a formal agreement such as a parenting order (consent order), and your children are withheld, you can make an application to the court for contravention of the parenting order. This application notifies the court that the order that was made has been breached. The court may make additional orders, including compensating the father for their time lost or a penalty against the mother.

If there is no binding agreement in place, such as the parenting plan, and the children are withheld from you, we recommend first attempting to resolve the matter by way of dispute resolution.  

A child can lawfully be withheld where there are occasions of violence, where a parent is substantially affected or any other significant risk of harm to which the children might be exposed.

Both parents’ rights are equally important after separation. It is not uncommon that fathers feel disadvantaged by the Family Law System. At the Family Lawyer, we are here to help you through this process and obtain the best possible outcome to ensure you can continue to have a meaningful relationship with your children.


Picture of Christian Bolog

Christian Bolog

Director | Head of Commercial Law

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