When we look at the ‘father’s rights’ in parenting matters, the important thing to understand is that there is no such thing as men’s rights vs women’s rights under the Family Law Act 1975.
The only rights that the Court is legally obliged to consider is that of the child.
The Family Law Act states that “a child has a right to be known and cared for by both parents.” This means that the Court isn’t so much concerned about the sex of the parent, but rather the child’s need to spend time with each parent as much as is reasonably possible.
Given that you’ve ended up on this page, you’ve probably heard or been subjected to the sentiment that fathers are only allowed to see their children every second weekend. At one point in time, this was probably the case, but in recent years – and especially with recent Court reforms – it is common for the Court to understand the importance of the child having an ongoing and meaningful relationship with both parents. Every second weekend dads are assuredly becoming a historical ideology and old way of thinking in the Family Court.
So Does This Mean That Fathers Are Entitled to Shared Care?
There is no right answer to this question without consideration to the child’s individual circumstances.
The short answer is that the law states that as long as there is no risk of harm to the child then the Court MUST consider whether shared care is a viable option.
What Do You Mean by ‘Risk of Harm’?
The meaning of ‘harm’ under the Family Law Act is broad. Harm can include, but is not limited to, physical or sexual harm, drug use or alcohol abuse, emotional or psychological harm as a result of exposure to domestic violence, abuse, threats or denigration of a parent or family member.
So long as none of these issues are present, the Court must consider the suitability of shared care.
Risk of harm is not isolated to the mother or the father. The gender of the parent is irrelevant in assessing whether a child is at risk of harm in a parent’s care. If you have concerns about risk of harm to your child in the care of the mother, don’t delay getting legal advice about your options. The longer you leave the child in a situation where they may be at risk of harm, the lesser the weight the Court is likely to give to those risks in the sense that nothing has been done by you or any authority to assess the risk or protect the child from harm.
Before we move on, it is important to note that the Court must only consider shared care – it has no obligation to make an order for this.
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When Would Shared Care Not Be Suitable?
When determining whether shared custody may be appropriate for a child, there are many considerations for the Court.
Amongst those many considerations, Judges will always have regard to the best interests of the child, the communication between parents, the practicality of shared-care and the ability of both parents to implement any orders made.
Let’s look at these considerations one by one:
1. Communication Between Parents
If the parents cannot communicate effectively about the care and well-being of the child, the Court will likely not make an order for shared custody. That’s not to say you have to high-five each other at every changeover or exclusively agree on everything, the Court merely seeks to ensure that for the most part communication between the parents exists with limited conflict.
Communication can be as weird and wonderful as you make it – whatever works for you. This can be through email, text message, communication books, online forums or as wacky as smoke signals. Provided the communication is constructive and productive without insult or offence, communication can look however you want it to.
Even if one parent’s communication is civil and the other is hostile, the Court will still be reluctant to issue an order for shared custody as there may still be an impact on the child’s life. Where this is the case, the Court is likely to Order one or both parents to participate in some form of co-parenting education - such as a post-separation parenting course or parenting orders program.
2. Practical Issues
Distance – if the parents live far away from each other, a shared custody arrangement may not be suitable as it could lead to difficulties with the child getting to school, travel time between households and how often the child will need to move around.
The further away the parents live from each other, the less likely shared care will be appropriate.
Availability – If one parent works a full-time schedule and the other parent is available to care for the child during the day, the Court will likely favour parental care over a daycare centre or care of a third-party provider that is not a part of the child’s extended family.
This is not to say that daycare is inappropriate, but if there is a family support network available to help care for the child then this will likely be given priority.
For fathers wanting to gain shared custody of their child, it is wise to consider their current living situation and work commitments.
3. The Child’s Age and Needs
This should come as no surprise to a parent, but the child’s age and corresponding needs are a huge factor in whether shared custody will be appropriate.
For example, if the child is a newborn that is still breast-fed, it is almost a certainty that the Court will deem shared care impractical and not in the best interests of the child for the foreseeable future.
Young children thrive with predictability and stability. Your newborn, toddler and kindergartener are unlikely to cope in an equal care arrangement (of course, this is subject to any existing arrangements).
While every Judge is different and exercises his or her discretion in the manner that they see fit (provided it is consistent with the law), the standard rule is that newborns up to around schooling age (i.e. Prep) require the care and attention of a primary caregiver.
That being said, we have seen shared care arrangements start as young as 2 years of age. Again, this depends on the circumstances surrounding the child’s age and stage of development, which are hugely relevant when it comes to assessing whether shared care is appropriate.
So What Does This All Mean?
It is necessary to keep at the front of your mind that the decisions reached by the Court are made to favour the child’s best interests - ensuring their physical, psychological and emotional needs are being met. This will always be the case.
It is important for the child to have as much time with both parents as is reasonable, noting that where shared custody isn’t possible, consideration must be given to the child having significant and substantial time with the other parent.
Depending upon the impact on the child, the Court may order that time is to increase as the child gets older. That is, periodically increasing the child’s time with the other parent ending in an equal care arrangement or thereabouts. Social science and expert opinion suggests that children of schooling age are more likely to cope, and even thrive, in an equal care arrangement.
The factors raised above lead to the important message that the mothers don’t automatically ‘get’ the child - but fathers need to be accommodating and maintain open lines of communication with the mother, spending as much time with the children as possible.
If the mother is withholding access to the child, then don’t delay – seek expert legal advice as to your strategies and your next best steps moving forward. More often than not, you are not getting the appropriate amount of time with the child and this should be rectified to ensure your child has a relationship with you and your loved ones.
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