A Fathers Right To Be In Their Child’s Life
Separation is never easy, and for many fathers, it raises questions about their right to be in their children’s lives. Who will their child live with? How are decisions about school and health care made? Do family courts automatically favour the mother?
These are common concerns, but Australian family law makes clear that fathers have important responsibilities and legal protections. The law sees two parents, rather than two genders of parents, neither of whom is favoured over the other. The Family Law Act sets out that the paramount consideration in any family law matter is the child’s safety and best interests, not the wishes of one parent over the other. An essential part of this is parental responsibility, which gives both parents the responsibility to care for their children.
The Child’s Best Interests As The Guiding Principle
The Family Law Act makes the safety and best interests of the child the central principle in every family law issue. Courts assess what arrangement will promote the child’s safety, stability and development. Factors include the child’s relationship with each parent, the ability of both parents to provide a meaningful relationship, and whether there are any safety concerns such as family violence, domestic violence or child abuse.
Protecting a child from harm is always the first priority, but where safe, the law seeks to ensure that children benefit from the love and support of both parents.
Custody, Care & Time With Your Child
Custody is no longer a legal term in Australia, although it remains a widely understood term. The terms now used are ‘time with’ your child, or ‘care of’ your child. This may be a 50/50 shared arrangement, a few days a week, or visitation on holidays if parents live apart or find that arrangement works best for them.
What most people know as full-time care (custody) or sole care (custody) is rarer in Australia, and generally only ordered in cases of family or domestic violence, significant safety risks or when parents need to live in separate areas, or when a parent chooses not to be in a child’s life.
The court may facilitate arrangements where a child lives primarily with one parent but spends meaningful time with the other. These contact arrangements can be week-about schedules, alternate weekends, or flexible arrangements that suit school timetables and work commitments. The focus is always on supporting the child’s welfare and maintaining a strong relationship with both parents. A popular arrangement, for example, is living with a primary carer parent and with the other parent having five nights a fortnight. Two nights in week one and three nights on the weekend of week two Friday to Monday morning. In addition, on half holidays and special occasions.
Breaking The Myth That Mothers Always Get ‘Custody’
One of the most persistent and common misconceptions in Australian family law is that mothers automatically receive primary care (custody). While historically, mothers were often seen as the primary caregivers due to a long history of traditional gender roles, the law today recognises that there are many different dynamics between parents, and sees mothers and fathers equally as parents. The courts do not start from an assumption that one parent should have full care of the child or any set care arrangement. Instead, separated partners can discuss what works for them and make suitable arrangements based on this.
If the court becomes involved, decisions would be made about arrangements based on evidence about the child’s welfare, the time and care each parent can realistically provide, and the child’s best interests. Fathers who can show ongoing involvement in school, health care and daily routines or the ability to do so moving forward are often granted substantial time to spend with their children. There are also many Australian families in which a father has more time with children than a mother, or full-time care.
Shifting Thinking From Rights To Responsibilities
In Australia, the legal system places less emphasis on parental rights and more on parental responsibility. Both parents are expected to care for and support their children, provide a safe environment, and protect them from physical or psychological harm. This responsibility extends to making major decisions about health, education and long-term welfare.
Fathers’ rights in Australia are, therefore, understood through the lens of responsibility. By demonstrating active involvement and a commitment to the child’s wellbeing, fathers strengthen their legal position. Being involved also strengthens bonds with children and a child’s need and right to have a healthy relationship with both parents, which in almost all cases should be the real focus of any parenting matter.
In the Family Law Act 1975 (Cth), parental responsibility is defined very broadly in section 61B as:
“all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
The Act doesn’t provide a neat checklist, because it’s meant to cover every aspect of raising a child.
Understanding Parental Responsibility After Separation
In Australia, unless the court decides otherwise, which is generally only due to safety concerns or a parent not being involved in a child’s life, both parents have equal shared parental responsibility. That means that each parent shares obligations to raise their child. It also means that both parents have an obligation to work together where possible in the best interests of their child, or children, and that parents need to consult each other and make joint decisions about major long-term issues in their child’s life.
Big decisions are generally to be shared, and both parents have the right to be involved in making them. Everyday or short-term decisions, like what the child eats for dinner or which clothes they wear, are generally made by the parent the child is with at the time.
Equal Shared Parental Responsibility vs Equal Time
Under Australian family law, equal shared parental responsibility is encouraged, but it does not mean that each parent automatically gets equal time with a child. Shared parental responsibility means both parents are involved in long-term decisions about their child’s life, such as choosing a school, authorising health care, or making decisions about religion and culture.
Parents should not confuse equal parental responsibility or equal decision-making with equal care or time (custody) – the two are distinct. Even if one parent has primary custody, the other parent can and usually does retain equal shared parental responsibility unless safety concerns make this inappropriate.
This can mean that parents share care, such as 50/50, and both share parental responsibility and decision-making. It could also mean that one parent has children for the holidays, and one is a primary carer, but they still consult equally on big decisions. Occasionally, one parent may have full or sole decision-making responsibility, even when parents share care. Or, one parent may have the child full-time, and both make decisions, potentially when one parent works away or is unable to be physically present.
What Does Shared Parental Responsibility Look Like In Practice?
In Australia, shared parental responsibility covers every aspect of a child’s life but is generally based on the principle (unless the court has decided otherwise) that significant decisions are made by discussion and agreement of parents, and day-to-day care elements are decided by the parent with whom the child spends time. There are different areas that parental responsibility covers, including:
Long-term decision making, which requires both parents to agree on things like:
- Where the child lives (parents can agree, or, if this fails, the court can decide)
- Education (choice of school, special needs support)
- Health care (surgery, psychological treatment, major medical decisions)
- Religious and cultural upbringing
- Name changes
- Relocation of the child’s residence if it significantly impacts time with the other parent
Everyday care and welfare, which parents are responsible for when they are with their child/ children:
- Feeding, clothing and daily routines
- Deciding who the child spends time with day to day
- Ensuring the child is protected from family violence, neglect or exposure to harm
- Household rules and discipline
- Ordinary recreational activities
Legal and administrative matters:
- Applying for passports and giving consent for overseas travel
- Enrolling a child in government services, health care systems, or benefits (such as through Services Australia)
- Authorising photographs or media participation
Section 61C of the Family Law Act confirms that both parents have automatic parental responsibility until the child turns 18, unless a court order specifies otherwise.
Decision Making In Practice
Shared parental decision-making does not mean parents must agree on everything. It applies mainly to major long-term decisions about the child’s life, such as where they go to school, what religion or culture they are raised in, or authorising significant health care.
Day-to-day decisions, like bedtimes, whether the child eats cookies at the other parent’s home, or attending a weekend birthday party, are generally left to the parent the child is with at the time. This ensures flexibility while still requiring cooperation on the bigger issues.
If there are safety concerns, such as family violence or risk of physical or psychological harm, or significant mental health or substance use issues, the court may decide that one parent should have sole parental responsibility for some or all major decisions.
What Happens If Parents Can’t Agree On Long-Term Decisions?
If parents cannot agree on long-term decisions for their child, such as which school a child will attend, travel, health care or living arrangements, the matter may need to be resolved through legal avenues. Parents are generally encouraged (or required in some cases) to seek advice or participate in Mediation before heading to court, unless the matter is urgent or poses a risk of harm to the child.
If Mediation fails and disputes persist, the matter may be brought before the Federal Circuit and Family Court of Australia. The court will consider the best interests of the child, including their views, safety and wellbeing, and decide on the matter at hand. In some cases, the courts may also make parenting orders giving one or both parents specific decision-making authority. These orders guide medical, educational and lifestyle decisions, ensuring consistency and protecting the child’s welfare.
Organising Care Of Children (Time With)
After separation, fathers often wonder how much time with their children is appropriate, and the answer is that it depends on what works best for your family. Parenting arrangements can vary widely depending on the child’s age, needs, and both parents’ life and work commitments. Some parents spend two days a week with their children, others follow a schedule like 5-2 (five nights with one parent, two with the other), or alternate weeks for a 50/50 split.
The 2-2-3 pattern also works well for many separated parents with younger children. One parent has the child every Monday and Tuesday, the other every Wednesday and Thursday, and the first parent has Friday through Sunday.
The following week, the other parent has the child on their days, Friday through Sunday.
Holiday visitation schedules, such as alternate holiday or special events, are also common. For children in school, logistics like transport, proximity and routines, especially for younger children or breastfeeding infants, may make one parent’s home more suitable for daily care.
There are many ways to organise parenting time. Flexible arrangements, where schedules adapt to work travel, extracurricular activities or family needs, often work best when both parents communicate effectively. For parents who struggle to agree, Mediation can be a practical and collaborative solution to create a fair schedule that puts the child first.
In cases of ongoing conflict, formal agreements through Consent Orders, or, if necessary, a court determination, ensure both parents’ rights and responsibilities are clear while prioritising the child’s wellbeing.
Pathways For Fathers To Secure Parenting Arrangements
Fathers can formalise parenting arrangements after separation in several ways. They can reach agreements with the other parent by discussion, Mediation, with a family lawyer negotiating for them, or, as a last resort, in court.
Parenting Plans
Parenting Plans are informal agreements that set out how decisions are made and when children spend time with each parent. They can be written and signed, giving both parents a clear reference point. These plans work best for separated co-parents with a reasonable degree of trust and communication, or as an early starting point during separation. A Family Lawyer or Mediation facilitator can assist newly separated couples in creating a Parenting Plan. They are not enforceable Orders.
Consent Orders
Where greater certainty is needed, parents can apply for Consent Orders, which are approved by the Federal Circuit and Family Court of Australia and are legally enforceable. Parents can reach an agreement on their own for these orders, with the assistance of a trusted Family Lawyer, or through Mediation, and then apply to the court to formalise them. They are enforceable. It is recommended that a Parenting Plan be converted into a Consent Order so there can be no dispute moving forward.
Parenting Orders
If Mediation or negotiations fail and parents cannot agree, a court application can be made outlining both parents’ wishes, and the court will issue Parenting Orders after formal court proceedings. These orders determine where a child lives, how time is divided, and how parental responsibility is shared. Parenting Orders are essentially the same as Consent Orders, but they are decided upon by the courts rather than the parents.
Understanding Child Support
There are a variety of ways to organise child support, and many parents reach private agreements that work best for their situation.
In Australia, these arrangements can include:
- Child Support Agency (CSA) assessment: A formal calculation by Services Australia based on income and care arrangements.
- Private agreements: Parents can agree on payment amounts and schedules themselves, sometimes more flexible than CSA assessments.
- Binding child support agreements: Legally enforceable contracts that outline each parent’s responsibilities and amounts.
- Informal arrangements: Casual payments between parents based on mutual agreement, though these are less secure and may have an impact on Family Tax Benefits.
- Combination arrangements: Some families use CSA assessments as a baseline and adjust payments privately according to changing needs or circumstances.
Regardless of the method chosen, clear communication, written agreements, and prioritising the child’s needs are key to avoiding disputes. Mediation or legal guidance can help when conflicts arise, ensuring the arrangement is fair, sustainable and enforceable if needed.
When Disputes & Safety Concerns Arise
Not every separation is amicable. Sometimes one parent may withhold contact, make false allegations or raise disputes about relocation, which would limit a child’s ability to spend time with one of their parents. In these situations, fathers should seek legal advice and look at court orders to enforce parenting arrangements and facilitate contact.
If there are safety concerns, such as family violence or child abuse, the court will take protective action. Psychological harm and domestic violence are treated with the utmost seriousness, and in some cases, this may restrict time spent with the other parent. Fathers must demonstrate that their involvement supports the child’s wellbeing and that their home environment is safe and stable.
Protecting Your Role In Your Child’s Life
Fathers can strengthen their position in parenting matters by actively demonstrating involvement in their child’s daily life. Practical actions include attending school events, medical appointments and extracurricular activities, helping with homework and maintaining consistent routines.
Keeping records of contact, communication and shared activities can provide clear evidence of engagement. Cooperation with the other parent, even in small ways, shows a focus on the child’s best interests. When disputes arise, Mediation, family counselling or professional support can help maintain constructive communication and minimise conflict.
Ultimately, courts prioritise consistent, child-focused behaviour, so demonstrating reliability, support and ongoing involvement benefits both the child and the father.
Addressing Withholding & Relocation Matters
Most parents find the thought of not being able to have contact with their child highly distressing. Disputes may arise if a parent attempts to withhold a child from the other parent without a valid reason or plans to relocate them interstate or overseas. The key is to act proactively and legally. Fathers should document all arrangements, communications and any attempts to prevent access.
If relocation is proposed, the court considers the child’s best interests, including their relationship with both parents, schooling, stability and practical logistics such as travel and daily routines. Consent from both parents is ideal, but if disagreement occurs, Mediation can help reach a mutually acceptable plan without escalating to court.
Legal advice is essential in these matters. Courts may issue orders for access, enforcement or contravention orders, relocation orders, or prevention of unlawful removal. Acting early, documenting interactions and focusing on solutions rather than conflict ensures that fathers can address matters in a timely manner and continue to play a meaningful role in their child’s life.
Seeking Help From The Right Places
Family law issues are rarely straightforward. Fathers are strongly advised to seek advice from experienced Family Lawyers who can explain legal protections and assist with positive shared parenting agreements, Consent Orders and child support matters.
Family Dispute Resolution and Mediation services can often resolve disagreements before they escalate to court proceedings. Services Australia also provides resources and calculators to assist with child support assessments. Each family law matter is unique, and professional advice can ensure fathers protect both their parental rights and their child’s best interests.
Moving Forward With Confidence
Fathers’ rights in Australia are protected under the Family Law Act, but the emphasis is on responsibilities and the child’s welfare. Courts want to see children maintain meaningful relationships with both parents, provided this does not compromise safety.
While separation is difficult, understanding your rights and responsibilities, taking part in decision-making, and staying actively involved in your child’s life gives fathers the best chance of a positive outcome. The paramount consideration is always the child’s best interests, but with the right support, fathers can remain central to their children’s lives after separation.
Do You Need Support Understanding Your Rights & Responsibilities As A Father?
If you’re a father navigating care arrangements, visitation, parenting disputes or complex family dynamics, the team at Pearsons Lawyers will ensure you know where you stand. Our experienced Family Lawyers provide practical guidance on protecting your role, maintaining meaningful contact, and ensuring your child’s best interests are prioritised. Call us on 1300 699 688 or submit an online form for your free no obligation appointment.
