Fathers’ Rights in a DivorceAugust 6, 2015 by Clewett
Fathers’ rights in a divorce
Fathers have rights, just as mothers have rights. Each parent has parental responsibility for each of their child/ren until aged 18 years, unless a court orders otherwise. Parental responsibility is not affected by changes in the parents’ relationship; for example, if you separate or remarry. Where possible, children should have a relationship with each parent and other important people in their lives.
In Australia the law does not look at whose fault it is that the relationship broke down. The court’s main concern is what is best for the children, and to ensure that they are protected from physical or psychological harm. There is no rule that sets out where the children should live and how much time the children should spend with each parent. Each family is different.
The law encourages parents and other people interested in a child’s welfare to agree on arrangements, including where they’ll live, how they’ll be financially supported and what their relationship with family members will be, without going to court. Court proceedings in relation to children should be regarded as the last resort.
If an agreement can be reached on the arrangements you wish to make for your child/ren after you separate, it will cost you less in time, money and emotional distress, and be easier on your child/ren. An agreement can be made in the form of a verbal agreement (nothing in writing) or a written agreement, known as a parenting plan.
Parenting plans are not legally enforceable but a court will consider the terms of a parenting plan if it should become necessary to apply for orders later.
You don’t have to go to court to formalise the parenting plan. However, you can have a court turn your parenting plan into a consent order if you wish (see below).
Courts make orders about parental responsibilities only if the parents cannot agree between themselves about the arrangements for their child/ren. Courts can also approve and make consent orders to reflect an agreement reached between parties at any time during the court process.
A parenting order sets out the responsibilities of parents and other carers, and may cover where the children live, who the children spend time and communicate with and any other issues, such as schooling or medical treatment. If two or more people share parental responsibility for long-term decisions, a parenting order can include how the parents will communicate with each other about decisions to be made in respect of the child.
A court considers many factors when deciding what types of arrangements are in a child’s best interests, such as:
- Protection from physical or psychological harm
- The benefit of having both parents’ meaningful involvement in their life
- Whether the parents should have ‘equal shared parental responsibility’ for long-term decisions about a child (unless child abuse, family violence or other issues are a factor)
- Each parent’s attitude to their parenting responsibilities, such as paying child support or turning up for their time with the child.
Where shared parental responsibility is ordered, the court must then consider whether it is appropriate to make an order for shared time. An order for shared time does not necessarily mean week on week off time. The manner in which shared time may be ordered will depend upon the age of the child and the circumstances of each particular case. In many cases where the child is young, shared time might be ordered in terms of a 3 days on 4 days off, 4 days on 3 days off arrangement.
It is important to note that a court must only consider making a shared time order, but is in no way bound to order shared time. When determining whether shared time should be ordered the court will consider such factors as:
Nature of relationships between the child and each of the parents and other significant persons in the child’s life (i.e. other siblings, grandparents, step parents etc);
- Capacity of each parent to care for the child;
- Wishes of the child;
- Willingness of each parent to promote the relationship between the child and the other parent;
- The likely effect to the child of any changes to the child’s circumstances;
- The maturity, sex, lifestyle and background of the child or child’s parents
- Attitude to parenting;
- Any cultural issues;
- Whether the order made is least likely to lead to the instigation of further court proceedings.
If the court finds that an order for shared time is not appropriate, the court must then make an order for the child/ren to live with one parent and spend significant and substantial time with the other. Significant and substantial time has been defined to mean time on the weekend, during the week, holidays and special occasions.
Once sealed the consent order is binding on both parties and can be enforced by the court. If one parent decides not to comply with the order they are at risk of being punished by the court.
Changing the agreement
Any move towards renegotiating the amount of contact you have with your children should begin with an informal approach to the mother of your children to discuss the issue and request a change to the arrangements. In the event that she refuses your request, you can seek professional mediation.
A mediator is a neutral third party who can sit with you both to try to help you arrive at a mutually acceptable arrangement.
The final option, if mediation fails, is to seek an amendment of your contact/residency arrangements through the Family Court. It is a legal requirement that all parties go through a mediation process before bringing their case to the Family Court.
Breaches of Parenting Orders
Breaching a court order is very serious. If you, or the mother of your child/ren, breach a parenting order without a reasonable excuse, the court can order you, or the mother, to participate in a parenting program run by an approved counselling service.
If the Court finds that a person has breached a parenting order, it will consider whether a reasonable excuse has been made by the contravening party – for example where the person who breached the orders believed that the breach was necessary to protect the health or safety of a person and the period of time of the contravention was not longer than necessary to protect the health or safety of the child or the breaching party.
For custody disputes, it is recommended that you get legal advice from an experienced family lawyer.
If you are concerned about your children’s welfare, or your parenting arrangement post separation, please contact our experienced family lawyer, Mark Orchard, for a free initial consultation.