What rights does a father have after divorce?
By Clara Suki 
Updated: 4 October 2023 · Read time: 4 minutes
A marriage breakdown is an especially difficult time for every family. Questions of property and finances may be extremely worrying. The custody of children is a major concern, and as a father, you may worry that you are unable to see your children. This guide aims to give you a quick summary of how the law deals with the rights of a father and how a divorce can impact your family.
Do fathers and mothers have the same rights?
The Family Law Act 1975 does not differentiate between the rights of a mother and the rights of a father. The only rights that are explicitly stated are the rights of children.
This is important to note, particularly because there is a social preconception that mothers are more likely to receive, or receive a larger portion of, custody of children in the relationship. The legislation simply does not support this idea.
When determining how the custody of children should be split between parents, the court must look to section 60ca of the Family Law Act. This section states that a court must regard the best interests of the child as a paramount consideration.
Thus, as fathers are incredibly important for the wellbeing and growth of a child, a court barring a father from seeing their child is an unlikely outcome.
A study by the Australian Institute of Family Studies found that only 3% of court ordered parenting arrangements resulted in no contact between children and their fathers.
How can I get custody of my children?
A parent can gain custody of their children through a:
Parenting agreement:
This involves coming to an agreement with your ex partner about how your child should be looked after once the divorce is finalised, and documented through a parenting agreement.
Coming up with a parenting plan without the aid of the court is the most common method by which parents can decide how their child will be parented after a divorce.
Consent orders
If you choose to, you can make your parenting plans legally binding by applying for a consent order in the Family Court of Australia. This will help to ensure that both separating parties honour their responsibilities to their children.
What happens if my ex partner and I cannot agree?
If you and your ex partner are unable to decide on a parenting plan, the matter can be heard in court.
A judge will give paramount consideration to the best interests of any children involved and then will decide how much time the child should spend with each parent.
This will mean that both parents will have to provide evidence that it is in the child’s best interest that they spend time together and remain in contact.
Is there a bias against fathers gaining custody of their children?
There are many people that think that mothers are more likely to gain custody of their children. As stated before, the Family Law Act is gender neutral and thus tries to be as objective as possible.
The Court also has a presumption that it is in the child’s best interest to have a shared and meaningful relationship with both parents.
Research by the Australian Institute of Family Studies found that approximately 40% of parenting orders made by the Family Court of Australia involved parents sharing equal parental responsibility of their children. Less than 10% of children were found to have no contact with one of their parents.
That being said, the court has a preference for appeasing the parent that is the primary carer of the child. Thus, both mothers and fathers can attempt to prove that they are the primary carer of the child if they want to gain more time with their children.
If you are a father and need any assistance regarding your rights after a divorce, feel free to reach us via the contact form.
