Know where you stand after separation

Rose Lawyers on 24 August 2018

Going through a separation can be emotionally difficult . When you have children from a partnership that has broken down, you will need to work out how you will care for your children in the future. This used to be called custody and is now a question of who your child 'lives with' and how much time they 'spend with' each parent.

Many fathers naturally worry that they won't get to spend as much time as they would like with their children. While this is a common concern, the fact is that the law does not favour one parent over another, and there is no guarantee that either parent will be able to spend more time with their child or children. Both parents have an equal requirement to show that they can care for their child or children.

Although you may commonly hear of children living with their mother and spending time with their father, the fact is that every decision is unique. Just as every family is unique, and a split between modern families requires an individual approach based on your particular circumstances.

At Rose Lawyers, we are committed to helping families achieve a positive outcome from their separation, and are here to discuss child care rights for fathers in family law.

Call us today on 03 9878 5222 to speak to one of our experienced family lawyers in Melbourne.

man and daughter with child custody rights for fathers

Deciding on how to care for your children with a parenting plan

For many couples, it is possible for them to agree on a parenting plan. This is a written agreement which sets out the care arrangements you want to have in place. This plan has to be in writing, and it needs to be signed and dated by both parents.

  • A parenting plan is a signed written agreement.

  • Family dispute resolution may be able to help you make a parenting plan both parties are happy with.     

  • A parenting plan is not legally enforceable but you can get a consent order which is approved by the Courts.

You have equal say in how you would like your children to be cared for. You can work with your ex-partner to try and reach an agreement on who will care for your children. You might agree that is is less disruptive to your children to live with one parent full time and to see the other parent on weekends.

Can't decide on care?

In some cases, parents cannot agree on care arrangements for their children. In this case, the next step for parents is mediation. If you have gone through the mediation process and not reached an agreement (or if mediation is not appropriate - say in the instance of family violence) you will then apply for a parenting order which is given to you by a Family Law Court. A parenting order outlines how you will share parenting responsibilities.

Making a parenting order through the Court

There are no set rights or rules for parents in Victoria. When deciding on care for your children the Court considers two things above all else:

  1. Protecting children from physical and psychological harm - including seeing or experiencing family violence.

  2. The importance of children having a meaningful relationship with both parents.

The Court also considers the kind of relationship a child has with extended family, such as a grandmother or grandfather, and whether parents have the ability to financially support children. In making a parenting order the court will consider a number of other factors including, but not limited to:

  • Whether each parent can financially support the child.

  • How much time and communication has come from each parent.

  • The practical difficulty of a child seeing each parent and whether this affects a child's right to a meaningful relationship with that parent.

  • Each parent's attitude towards parenting.

  • How much each parent can provide for their child's physical, emotional, and intellectual needs.

  • Any other considerations that the Court thinks is important.

Again, the Court will not decide in favour of a mother or father based purely on their gendered role but will look to the interests of the child and make a decision based on the child's rights to care.

man and women settling divorce and deciding on child custody rights for fathers

Making decisions for your child

In the first instance, the Court sees each parent as having equal responsibility to make decisions about their child's medical, religious, cultural, educational, and living matters. Equal parenting responsibility does not automatically mean you have equal parenting time or shared care. The Court may decide that one person is better equipped in all the circumstances for the child to live with them the majority of the time.

If equal parental responsibility is granted, the Court will decide whether it is in the best interest of your child to spend equal time with each parent, or whether 'substantial and significant time' is better.

What the Court considers when determining care of child

When you are going through a separation with your ex-partner it is important to take steps to make sure the Court can see that you are capable of caring for your child. You can do a number of things to make sure that your home and lifestyle are favourable for providing care:

  • Making sure your house is safe and adequately equipped for your child. This might include things like ensuring there is a separate bedroom for your child in your new house, and making sure your home is always clean and tidy.

  • Staying in the same school catchment zone so that your child does not have to move schools, as this can be disruptive for your child. That said, you might move to an area with a much better school than the one your child currently attends.

  • Considering a new relationship carefully. While you are not obliged to remain single or to make decisions about your partner based on your child, it is important to think about how a new relationship can affect your caregiving responsibilities. Ending one relationship and moving straight into another relationship can be very tough for a child.

  • Championing stability. Children require as much routine as possible, and a Court will consider this factor very highly when allocating care. If you have a job where you are FIFO (fly-in-fly-out), if you work shifts, or if you move house or jobs often then the Courts will consider how stable and consistent you are.

  • Hiring a lawyer who understands the nuances of family law and who can assist you. While you are the person who understands what is best for your child, Courts are complicated places where a good family lawyer can be your agent in what is almost always an emotionally fraught situation.

Call Rose Lawyers today

Remember that your child's rights are what the Court will consider when deciding on care and the decision is made based on all the circumstances of the parties. This is not an easy decision. You can do a lot to create routine and consistency in your child's life, and by showing the Court you can consider your child ahead of any grievance with your ex-partner can assist in your case.

When you need advice you can trust from family divorce lawyers who understand, call Rose Lawyers on 03 9878 5222. We understand child care rights for fathers in Victoria and are here to help with your care decisions.