Father’s Rights After Separation

We represent a lot of fathers who are seeking family law information about their children and fathers rights after separation in Australia. Many fathers come to us with depression, anxiety and high levels of stress because they believe that they will not be able to spend time with or see their children.

The complete guide to everything you need to know about Fathers Rights after separation in Australia


There has always been a preconception that the courts will always award mum primary custody and dad will get the children on the weekends.

This is simply not true as each case is unique and requires careful consideration, nonetheless, if it can be argued that it is in the best interests of the child to stay with the father and not the mother, then the court may make a decision in favour of the father.

The average father is now very different to what they were 20 years ago.

fathers rights custody

We see today that fathers are very active when it comes to the raising and decision making of the children.

Research confirms that fathers’ affection towards children helps promote their social and emotional development.

Most divorced fathers do not receive full custody of their children.

As a result, maintaining their roles as parents can be difficult due to the reduction in time spent with their children.

Justice Family Lawyers empowers fathers to spend as much time as possible with their children.

We educate fathers on what they’re entitled to and encourage them to ask the courts for what they really want.

The Courts encourage parents to make plans that align with the best interests of the child. Denial of contact with one parent may have serious consequences for a child’s development. We educate people about fathers’ rights and what fathers’ legal rights are to see their children.

Father’s rights in Australia is a broad field

When determining child custody rights, the golden principle that the courts look at is 60CA of the Family Law Act 1975.

The section says that when determining parenting orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

fathers rights after separation infographic 4 things for fathers to remember

Fathers rights to see his child FAQ

Fathers get 50 50 custody in Australia more regularly than you think.

According to the Australian institute of family studies, only 3% of court-ordered parenting agreements involve no contact between children and their father, compared with 9% of the general separated population.

The study showed that 21% of parents had shared custody of their children.

Researchers found that children of divorced parents benefited from spending time, including sleeping over, at both parent’s homes.

The recent study also showed that when the children became adults, the ones who had the best relationships with their parents were the ones who spent equal time at both their mother’s home and their father’s home from a young age.

The study was published in the journal: Psychology, Public Policy and Law and is called 25 Scientific Tips for Raising Happy (and Healthy) Kids.

Fathers should be spending regular time with their children, which should increase as the children get older.

Fathers have the same rights as mothers when it comes to accessing children. It is important to distinguish who is making decisions for the children and that the primary carer of the child is consulted when one parent is seeking access to their child.

A father can gain custody of his child in one of two ways.

1. If the parents are able to come to an agreement that is going to occur with the children then a father may document this in a set of consent orders or a parenting arrangement.

2. If the parents are not able to come to an agreement then the matter will go to court and a judge will determine how much time each parent will spend with the child. A father will then need to show that it is in the best interests of the child for the child to spend time with him.

Keep in mind that less than 3% of matters end up in court, meaning that there is a good chance it will not be you!

There is no set age for when a father will be able to obtain a 50 50 arrangement with his child.

Most judges will not consider a 50 50 arrangement until the child is at least 4 or 5 years old.

This is because most judges believe that a child should spend more time with the child’s primary carer when the child is between 0 to 5 years of age.

However, there are cases where a 50 50 arrangement may work for some children aged 1 – 4 years.

The basic rule in Australia is that it is the child’s right to have access to both moms and dads.

There’s a rule of equal and shared parental responsibility that both the mother and father share unless there is an order determining otherwise. this means that both parents are responsible for the major decisions in relation to the child.

Both the mum as well as the dad have a right to care for the welfare of their offspring as well as being accountable for their upbringing by supplying them with food, shelter, and clothes.

There are many people that believe that there is a bias against fathers in the family court. Sometimes this results in fathers giving up or conceding before they even try and fight for more time with their children.

Due to social dynamics, it is extremely common for the mother to be considered the primary carer of the children, as the mother normally takes time off of work to look after children.

Sometimes, it could be the case that a father is considered as the primary carer of a child.

There is no bias against fathers as a gender – however, there is a preference for a court to try and appease and side with the primary carer of a child.

Fathers frequently face a number of custody issues when they want more time with their children.

Sometimes a mother will want to establish that a father is a risk to the children, and that therefore time should be withheld between the father and the child.

This is often something that we deal with at our firm, and we have a high success rate of establishing that fathers are not a risk to their own children.

Allegations can make fathers feel like they do not deserve to spend time with their children, despite the fact that they are loving fathers who only want to have a steady relationship with their kids.

Custody of children means the arrangements that are in place for the children to spend time with the mother and father. Justice Family Lawyers can help you seek an increase to the custody of children to ensure you are spending substantial time with your child.

Some of the results we have achieved for our fathers

  • Child custody disputes
    • We act on cases where fathers are seeking an increase of time with their children. We constantly face and overcome issues such as gatekeeping, gaslighting, abuse of process, false police reports, and violence orders.
  • Primary custody of the child
    • We have had cases where the father has maintained his position as the primary carer of the children, even when the mother was trying to falsely establish that she was the primary carer.
    • We have run cases where the primary carer was changed from the mother to the father, as the mother was found to have been abusing drugs and alcohol.
  • Obtain visitation when they have been denied visitation by the child’s mother
    • We have obtained over night time for dads who have been denied visitation by mothers who have alleged that the dad is abusing drugs and alcohol.
    • Dads that have been accused of being violent or having mental health issues, we have achieved results obtaining overnight time with their children.
  • Prevent the relocation of a child
    • We have prevented children from being relocated to other suburbs and overseas.
    • We act in cases where we have been required to obtain recovery orders from the court to locate the child and to bring the child back to the father
  • Assist with the relocation of a child
    • We assisted a dad who wanted to relocate from NSW to Queensland with his children.
  • Weekend visitations and sleepovers
    • We have gotten dads overnight time with their kids, despite being denied this from the children’s mother.
  • Help with making major long-term decisions for the child
    • We have assisted dads obtain a say in relation to children’s education, schools they attend, and religions that they observe.

fathers rights

Mother withholding Child from Father in Australia


If you’re in the scenario where you have mother withholding child from father in Australia, you’re probably stressed and worried about what to do.

You don’t have any parenting orders yet, and you want to stay out of court – however, she just won’t let you see the children.

Fathers have rights to see their children in Australia, and a mother needs to show that a father is an unacceptable risk to the child in order to withhold a child from a father in Australia.

It is important to remember that the presumption of parental rights in Australia is that both parents are equal.

Always remain calm and remember to seek proper advice about your situation.


Mediation and Negotiation

If you remain in the circumstance where a mother is withholding a child from a father in Australia, below are some non-legal actions you can use to settle the standoff:

1. Go to counseling together

2. Go to a mediator together who specialises in parental conflict and child custody arrangements

3. See a psychologist to resolve any type of psychological concerns that could be contributing to the withholding of the child

4. Speak to a lawyer about resolving this matter outside of court, by way of negotiating an agreement or by a collaborative law method.

It is usually best to try to settle parenting differences outside of court, as is it less expensive, and often more effective.

The legal system is limited in just how it can deal with the scenario of a mother withholding a child from a father in Australia.

If a mother continues to withhold a child from the father, you should file a court application requesting that a judge will choose what is the best arrangement for the child.


can fathers get 50 50

What to do if parenting orders are breached

If parenting orders have been established and they are breached; e.g. the mother withholding the child from the father in Australia, you file a contravention application.

This application is sent to the court, alerting them of the breach of parenting orders. You should maintain comprehensive notes of all occasions when the parenting orders have been breached (consisting of time, day, and place), as this can be used as proof in court.

Shared Parenting

When determining what are the best interests of the child, the court acknowledges that children should have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

This means that if your circumstances permit, you could have a chance of at least 50% time with your child.

The court also prioritises protecting children from physical or psychological harm.

This means protecting children from being subjected to, or exposed to, abuse, neglect or family violence.

It is extremely important that you address any allegations of domestic violence immediately and effectively.

This may mean contesting an Apprehended Domestic Violence Orders or defending yourself in the Local Court because you have been accused of being violent.

The courts also want to ensure that children receive adequate and proper parenting to help them achieve their full potential.

This means that they want to see that parents fulfil their duties and meet their responsibilities concerning the care, welfare, and development of their children.

mother withholding time


Parenting arrangments & father’s rights after separation

Case studies help us understand the position of the Family Court.

Cases are an important source of information to help us understand and interpret the position of the Family Court in relation to how they view fathers rights.

Each case or judgment is the solution to the dispute between parties to the case.

Once the judgment is delivered it becomes a precedent that future disputes will be based upon.

Case Studies

Biss (2009)

In the matter of Biss [2009], despite a history of violence by the father and the mother’s allegation against him of child sexual abuse of one of their children, the judge made an order for the parties to share equal parental responsibility and spend equal time with the children.

The Court concluded that although there were positive and negative factors to consider, the positive factors outweighed the negative and that the children’s best interests would be served by spending equal time with both parents.

Banning & Wylie (2009)

In this case, the father had 5/15 nights with the child.  He then made an application to the court for equal time once the child began school and until then an extra night each fortnight.

The mother was opposed to the extra night for two reasons.

Firstly said it was not in the child’s best interests to spend an extra night with the father.

Secondly, she was concerned about having the child dropped off too early in the morning because of the father’s work commitments.

The court was of the view that it would assist the child and the parents to move towards equal care if the child’s time with the father was increased gradually.

Willis & Field (2014) 

In this recent decision, the judge considered parenting arrangements where equal time with each parent had been in place for about 11 months.

Both the father and the Independent Children’s Lawyer proposed that the children live for equal time with each parent.

The mother’s position was that the children live with one parent and have visitations from the other. She wanted the children to have more stability, whether that meant staying with her or with the father.

The judge found that the mother was focused on the children’s needs as she believed that it would be better for the children to live principally with one parent rather than there be equal time.

Her position was in tune with the emotional and psychological needs of the children.

As a result, she was awarded principal care for the children.

Legal help for divorced fathers


Many fathers tell us that they feel disadvantaged in this legal system.

Free legal help for divorced fathers is limited, leading many men to believe that men’s rights after separation are inferior to those of a woman.

There are a multitude of women’s services available, including women’s refuges, free legal clinics providing free legal advice, services providing free accommodation, domestic violence clinics, counselling and other support services.

On the other hand, advice for dads about divorce and about dad’s winning custody of children are limited.


Custody battle tips for fathers

There is an increasing amount of cases where there are fathers getting sole custody of children in Australia.

These cases should be read and studied so that you are able to understand all of the custody battle tips for fathers.

This proves that a father can get custody of a child if they follow the right steps and obtain good legal advice.



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