Michael Pickering was shocked by the fears of a friend who thought he’d lose access to his child after separation.
A mate of mine is currently in the midst of a situation causing him massive distress – his ex-partner wants to move interstate with their six-year-old daughter and her new partner.
He doesn’t want this to happen, obviously. He is and alwaays has been a present and loving caregiver to his daughter, having her with him every other weekend and a number of weeknights, and he can’t move interstate because of where his work demands him to be. He is emotionally connected to his little girl, and her to him.
As his friend, what’s been particularly sobering to watch is how little he knows about what his rights are in this situation. Like many men, he assumed that for a child that age, as the primary caregiver the mother has the natural advantage in determining their daughter’s living arrangements and he is powerless to do much to change that.
I’m a law student, not yet a lawyer, so don’t take any of this advice as gospel truth. You should always consult a lawyer experienced in family law to assess your options. But I know enough to have told my mate that he does have rights and that courts make decisions based on the principle enshrined in section 60CA of the Family Law Act 1975: that custody and living arrangements are decided “in the best interests” of the child. This can include – in his situation, for example – preventing an ex-partner relocating a child away from a father, even where the ex promises the child can spend longer periods with the father at other times (school holidays, etc).
The “best interests” test recognises that denying or impairing a child’s access to one of its parents can have serious detrimental effects on their development, and this is where a father who can show he is loving, caring and present can challenge any unilateral decision made by the mother, such as relocating interstate. This changes, of course, if there is any evidence of violence or abuse in your former relationship, as a priority for the court is also protecting children from physical or psychological harm.
The above principles also apply in many situations faced by fathers when separation occurs, including:
- Child custody disputes – who has primary custody of the child?
- Visitation rights when these have been denied by the child’s mother
- Recovery orders by the court to locate the child and to bring the child back to the father
- Preventing the relocation of a child
- Assisting with the relocation of a child
- Weekend visitations and sleepovers
- Participation in major long-term decisions for the child (health, education, etc)
This issue has become somewhat clouded in recent years by some militant ‘fathers’ rights’ groups who see Australia’s family laws as being inevitably biased against their interests.
While each case depends on its particular facts, and the case law is not consistent in finding more in favour of the mother than the father, there are a number of prominent cases which show that courts prefer to find in favour of shared parental responsibility. It may not always be a 50:50 split in time spent with each, but in most cases it reflects the importance of a father in their child’s life, particularly where dad has been deeply embedded in the entirety of that child’s life.
And so my mate does have rights. It’s not a fait accompli that he’ll not see his daughter every week. These days, there’s a stack of information online which can help you work out what your options are, even before talking to a lawyer. A good place to start is here.