If you are a father going through a separation, one question can sit above all the others for some, particularly when there is high conflict: will I still be part of my children’s lives? It is one of the most common concerns separating fathers in high conflict cases raise, and it is often fuelled by stories from friends, online forums and outdated ideas about how the family courts treat fathers.
Australian family law does not favour mothers over fathers, or fathers over mothers. Instead, every decision about parenting arrangements is made through one lens: what is in the best interests of the child.
What Does Australian Law Say About Fathers' Rights?
The Family Law Act 1975 (Cth) does not contain a separate set of “fathers’ rights” or “mothers’ rights”. In parenting matters, the law focuses on the child rather than on what either parent is entitled to. When a court makes a parenting order, the best interests of the child are the paramount consideration.
The 2024 changes fathers should know about
On 6 May 2024, the Family Law Amendment Act 2023 made significant changes to how parenting matters are decided. Two of these changes are:
- The presumption of equal shared parental responsibility was removed. Before May 2024, when making parenting orders, the court started from a presumption that both parents should share major long-term decisions. That presumption no longer exists. Decision-making responsibility is now determined by what is in the child’s best interests.
- The court no longer has to consider “equal time” or “substantial and significant time”. These considerations were often misunderstood as thinking it gave each parent a right to 50/50 care. The court can still make equal time orders where that is in the child’s best interests, but there is no longer a mandatory step that points towards them.
In practice, the old presumption never guaranteed equal time, and the reforms were designed to make the child’s needs, rather than a parent’s “entitlement”, the starting point for every case. The focus is on the child’s rights, not the parents’ rights.
How the court decides what is in a child's best interests
Under the amended section 60CC, the court considers six general factors:
- What arrangements would promote the safety of the child and each person who cares for the child, including safety from family violence, abuse, neglect or other harm.
- Any views expressed by the child.
- The child’s developmental, psychological, emotional and cultural needs.
- The capacity of each person who has, or is proposed to have, parental responsibility to provide for those needs.
- The benefit to the child of having a relationship with their parents and other people significant to them, where it is safe to do so.
- Anything else relevant to the child’s particular circumstances.
Additional considerations apply where the child is an Aboriginal or Torres Strait Islander child. None of these factors refers to the gender of a parent.
Parental Responsibility and Time With Your Children
It helps to separate two ideas that often get blurred together: who makes the big decisions, and where the children live and spend their time.
Parental responsibility & decision making
Parental responsibility is about decisions on major long-term issues, such as a child’s education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly harder to spend time with a parent.
Where parents share major long term decision-making responsibility under an order, they must consult each other and make a genuine effort to reach a joint decision. Such an order is not appropriate in every matter and advice should be sought on what orders are best to seek, such as joint or sole decision making and parental responsibility.
Living arrangements and time
You may have heard the term “custody”. It is still used by the public, but it has not been part of Australian family law for many years. Instead, parenting orders describe who a child lives with and who a child spends time with or communicates with. Arrangements can range from week-about care to alternate weekends with midweek time, school holiday splits, video calls and more. Our article on common parenting arrangements walks through the options.
What if I wasn't married to my child's mother?
Unmarried fathers have the same standing under the Family Law Act as married fathers. Parental responsibility does not depend on whether you were married, in a de facto relationship, or never lived together at all.
Where parentage is in question, for example if you are not named on the birth certificate, the law has ways to establish it. These include presumptions based on birth registration, and in some cases a court-ordered parentage test. If this applies to you, get advice early, because establishing parentage can be an important first step.
Common Myths About Fathers and Family Law
“The courts always side with the mother.” The law gives neither parent priority based on gender. Outcomes depend on the child’s needs and each parent’s capacity to meet them, among other relevant factors. A history of primary care is relevant, whoever provided it.
“I’m automatically entitled to 50/50.” There is no automatic right to equal time, and since May 2024 the court no longer has to consider it as a specific step. Equal time can still be agreed or ordered where it suits the child, taking into account practical factors like the distance between homes, school and work rosters. Family violence is also relevant for many families and advice should be sought early on when there is a history of family violence, child abuse, neglect or other safety issues or issues of concern.
“If I don’t pay child support, I lose my right to see my kids.” Child support and parenting time are separate legal issues. Missed payments do not end your relationship with your children, and the law does not make time with your children conditional on paying child support. It can be relevant in parenting matters however.
“Once I move out, I’ve given up my place.” Leaving the family home does not end your parental responsibility. But early arrangements can quickly become the norm, so get advice ideally before you move out, or soon after.
“My children can choose who they live with at 12.” There is no fixed age at which a child decides. The court considers a child’s views, often giving more weight to older children, alongside every other factor.
Practical Steps for Fathers After Separation
Most parenting arrangements are agreed between parents, not decided by a Judge. These steps run from least to most formal.
- Get advice early. A consultation with a family lawyer can show you where you stand, what a realistic arrangement looks like, and what to avoid in the first weeks, as well as how to stay out of court.
- Focus on the children, in your words and your actions. Keep communication civil, show up reliably, and stay involved in school, health and activities. It is good parenting, and it is the history that can matter if a dispute reaches court.
- Try to reach agreement through a parenting plan. A parenting plan is a written, signed and dated agreement. It is flexible but not legally enforceable. Read our guide on parenting plans and consent orders. Seek advice on whether this is right for your situation.
- Use family dispute resolution if safe to do so. Family dispute resolution (FDR) is mediation with an accredited practitioner. In most cases you need an FDR certificate before applying for parenting orders, with exceptions including family violence, child abuse and urgency.
- Formalise your agreement with consent orders. Once you agree, you can apply to the Federal Circuit and Family Court of Australia for consent orders, which are legally binding without a hearing. Seek advice on whether this is right for your situation.
- Apply for parenting orders if you cannot agree. If you cannot agree, or the matter is urgent, the court can decide. Our article on preparing for family court in QLD explains what to expect.
Already in a dispute? Our parenting dispute lawyers can help you find the best path forward.
FAQs
Does a father have the right to see his child in Australia?
The law frames this as the child’s right rather than the parent’s. The court considers the benefit to a child of having a relationship with both parents, where it is safe to do so. In most cases, that means a father who is safe and involved can expect to have a meaningful role in his child’s life.
Can a mother stop a father from seeing his child?
Without a court order, there is no automatic legal mechanism forcing one parent to make the children available to the other. That is one reason fathers in this situation should get advice early. If agreement cannot be reached through discussion or family dispute resolution if safe to do so, you can apply for parenting orders. Once orders are in place, both parents must comply with them.
Do fathers have to go to court to get parenting time?
No. Many parents reach agreement themselves, through lawyers or through mediation, and then formalise it with a parenting plan or consent orders. Court is generally the last resort.
What happens if the mother has a domestic violence order against me?
A domestic violence order or Protection Order in Queensland does not automatically end your relationship with your children, but family violence is relevant to how the court assesses safety. If a protection order has been made or applied for, get legal advice straight away about how it interacts with your parenting arrangements.
Do stepfathers or grandparents have rights too?
The Family Law Act allows people other than parents, including grandparents and other people concerned with a child’s care, welfare or development, to apply for parenting orders.
How is child support worked out?
Both parents have obligations to financially support their children. Services Australia usually assesses child support using a formula based mainly on each parent’s income, each parent’s level of care, and the number and ages of the children, so care arrangements and child support are linked. Our article on how much child support is in Australia explains the basics. You can also negotiate a private arrangement such as a Binding Child Support Agreement.
What if the other parent wants to move away with my child?
A parent should not simply relocate with a child in a way that significantly affects the child’s relationship with the other parent. A move may breach existing orders, and even without orders it is a major long-term issue that should be agreed or decided by the court. If the other parent plans to move interstate or overseas, seek advice promptly, as urgent orders sometimes need to be sought.
Speak With a Brisbane Family Lawyer About Your Situation
Every family is different, and general information can only take you so far. At Daykin Family Law, our team is led by Shannon Daykin, an Accredited Family Law Specialist. We give fathers clear, practical advice about their options and the steps that make sense next, so you can stay focused on your children.
We meet clients at our Fortitude Valley office, at our meeting rooms in Noosa, by phone or by video. Contact us to arrange a consultation.
This article provides general information only and is not legal advice. For advice about your circumstances, please speak with a family lawyer.
