Certainly one of the most distressing things for fathers on the breakup of a marriage or de facto relationship is the risk of losing contact with their children. Child custody rights for fathers in Australia can be a minefield. It’s a concern that our Owen Hodge divorce lawyers hear all the time. This blog aims to provide guidance and offer practical advice to help fathers assert their custody rights effectively. Read on to learn more about fathers rights or get in touch with our experienced team of family lawyers in Sydney now.
Overview:
- Establish paternity
- Maintain an ongoing relationship with children
- Spend time with children on a regular basis
- Share in major decisions
- Prevent a third-party adoption
What is the family law act for custody rights?
The Family Law Act of 1975 does not speak in terms of father’s rights or mother’s rights but of the rights of children to:
- protection from physical or psychological harm
- the meaningful involvement of both parents in their lives
All in all, your ability to remain meaningfully involved in your children’s lives will likely depend on two factors: the cooperation of your former spouse or partner and your ability to agree on parenting arrangements that allow the children to spend as much time with each parent.
Failing that, you may need to seek legal intervention and issue court proceedings to protect your father’s rights in Australia and the ability to share parental responsibility.
Child custody for fathers: what are my rights as a father in Australia?
It may be helpful to reduce father’s rights to a broadly inclusive list. Child custody rights for fathers generally include the right to:
1. Establish paternity
At the end of a marriage, this is often not an issue, as the mother’s husband is generally presumed to be the father of the child. However, in an unmarried relationship, this can be necessary. It is the threshold issue on which many other rights depend, although adoptive fathers and stepfathers may also have rights. TIP: One of the most reliable ways to establish paternity in Australia is through a legally recognised DNA paternity test. Under the Family Law Act 1975, a DNA test must be conducted by an accredited laboratory for it to be legally admissible. If both parents agree, a test can be arranged privately, but if there is disagreement, an application can be made to the Federal Circuit and Family Court of Australia to seek a parentage order.
2. Maintain an ongoing relationship with the children
This can mean many things beyond visitation and custody, including phone contact and participation in school and community activities. Regular communication, quality time spent together, and active involvement in their lives create a strong foundation of trust and support, which will help in child custody cases. TIP: Regular communication with your child can strengthen custody claims.
3. Spend time with the children on a regular basis
Note that this does not necessarily mean equal time. Studies suggest that very young children require close contact with their mother that should only be briefly interrupted. In case you have never met an adolescent or do not recall having ever been one, they often want to have a great deal of input into where and with whom they spend their time. TIP: Children thrive on consistency, so setting regular visitation days, activities, and traditions helps them feel secure and connected. Whether it’s weekly dinners, weekend outings, bedtime video calls, or shared hobbies, prioritising quality over quantity ensures that your time together is engaging and emotionally fulfilling.
4. Share in major life decisions
If you have equal shared legal custody of your children, you have the right to participate in decisions about things like education, religion, and medical care. However, please note that courts are reluctant to grant joint legal custody where parents do not have a good history of collaborative decision-making—a characteristic of many estranged couples. TIP: If there are disputes about major decisions, mediation through Family Dispute Resolution (FDR) can help both parents reach a fair agreement.
5. To prevent a third-party adoption
One of your father’s rights in NSW is that you’re able to prevent the child being adopted by somebody else. By maintaining a positive co-parenting relationship and actively involving both parents in the child’s life, this will help to reduce the likelihood of third-party intervention. By being proactive and taking the necessary precautions, parents can safeguard their family and ensure the continued well-being of their children.
6. Support your child
Finally, the children have a right to continued financial support, or “child support”, which you will have the corresponding obligation to provide. If you have any specific questions about this, you should speak to one of our child support lawyers for fathers.
How to protect your paternal rights in Australia
No rights are absolute, and if you have been absent from your children’s lives for some time, it may be difficult to persuade either your ex or a court that you should be able to exercise the privilege to participate in your children’s lives. Your father’s custody rights in Australia can also be forfeited or curtailed in the event of family violence, drug or alcohol abuse or violation of a parenting order.
The best way to protect your children’s rights is to develop a shared parenting plan before disputes arise. Find out more about what is a parenting plan vs. a consent order on our blog. Stick to it religiously, always keep children out of conflicts with their mother and continue to show love and support for them no matter what difficulties may arise. It’s all about acting in the best interests of the child.
Get professional legal advice from the family lawyers for fathers at Owen Hodge
Ready to protect your child custody rights as a father? Contact Owen Hodge Lawyers today and let our experienced team of family lawyers in Sydney ensure a fair outcome that considers father’s rights. Don’t wait; take action now and secure the best future for you and your children. Please call us to schedule a consultation at 1800 770 780 or contact us online and let us guide you through the legal process.
Child custody rights for fathers: FAQs
No, a mother cannot unilaterally deny a father access to their children without legal justification. Under the Family Law Act 1975, both parents have equal parental responsibility, meaning that unless a court orders otherwise, a father has the right to spend time with and be involved in their child’s life. However, if there are concerns about family violence, abuse, or neglect, the court may impose restrictions or supervised contact. If a mother denies access without a valid reason, the lawyers for fathers can seek parenting orders through the Federal Circuit and Family Court of Australia (FCFCOA) to secure time with the child. The court’s primary focus is on the best interests of the child, ensuring they have a meaningful relationship with both parents unless it poses a risk to their well-being. Parents are encouraged to resolve disputes through mediation before pursuing legal action.
In Australia, a father does not automatically lose his parental rights due to absence, as parental responsibility is not based on time spent with the child. Under the Family Law Act 1975, fathers’ rights in family law include shared parental responsibility, visitation, and involvement in major decisions affecting the child unless a court determines otherwise. However, if a father has been absent for a significant period, the court may consider this when making parenting orders and visitation rights for fathers, especially if the absence has impacted the child’s well-being or relationship with him. A father can lose certain rights if a court orders sole parental responsibility to the mother due to reasons such as neglect, abuse, family violence, or lack of involvement. While absence alone is not enough to remove parental rights, a father who wishes to re-establish contact may need to go through mediation or apply for court-ordered parenting time through lawyers for dads.
Yes, child support may still be required even if parents share 50/50 custody in Australia. The Department of Human Services (Child Support Agency) calculates payments based on both parents’ incomes, costs of raising the child, and time spent with the child. If one parent earns significantly more than the other, they may still be required to pay child support to balance financial responsibility, ensuring the child maintains a similar standard of living across both households. However, if both parents earn similar incomes and share care equally, child support payments may be minimal or not required. Parents can also enter into private child support agreements to manage expenses. For accurate calculations, the Child Support Estimator provided by Services Australia can help determine potential obligations. Understanding child support and visitation rights for fathers in Australia is crucial for ensuring a fair and meaningful relationship with their children.