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Family Law Gender Bias

By March 3, 2020February 23rd, 2024No Comments

Tips for fathers wanting equal time with their kids

Parents have the same legal rights in family law, no matter what their gender is, because family law in Australia begins with the presumption of equal shared care of children. But you’ll still see the view expressed out there that there is a family law gender bias.

First, a comment about so-called “fathers’ rights”. Under the Family Law Act 1975 (the Act), there’s no such thing as “mothers’ rights” or “fathers’ rights”. It is exclusively about a child’s rights. The Act states that “a child has a right to be known and cared for by both parents”. Courts are not concerned with a parent’s gender, only with ensuring the child can spend time with each parent where that is reasonably possible and safe, after divorce or separation.

But many dads do not have a proper understanding of this and can fall victim to believing the myth that there is a gender bias against them and sometimes give up hope, abandoning efforts to formalise shared custody. In truth, a father has as much chance of becoming the primary carer if he pursues custody through the courts as a mother does, depending on the circumstances of the particular matter.

Dads are often concerned that some judges still hold old-fashioned views and believe mothers are the better caregivers. However, stereotypical gender roles are simply not considered by the courts, who instead are governed only by the welfare principle—the best interests of the child.

The courts balance the right of the child to have a meaningful relationship with both parents against the need to protect children from harm (physical or psychological). This need for protection outweighs the benefit of having a meaningful relationship with both parents and the presumption of shared care no longer applies in cases where there is family violence, neglect or other issues affecting a child’s safety. Assuming however that there are no such issues preventing a child spending time with each parent, there are also a range of other factors that courts consider in determining parenting orders.

Whether you are a father or a mother, if you have the genuine intention of parenting your children after divorce or separation, there are still certain things you should be aware of.

Practicalities of sharing time

Give serious thought to the practicalities of how shared time will work with your work and life commitments. Courts will consider practical issues relating to your availability to your kids—such as working very long or unpredictable hours. This consideration applies equally to fathers and mothers.

Getting along with your co-parent

Assess your ability to communicate effectively and civilly with the other parent. Effective communication about the day-to-day care of the children after divorce or separation needs to be possible. If it is not possible, courts are unlikely to make an order for shared custody. Of course, you don’t need to be best friends with your ex, but you do need to be able to civilly communicate regarding the children. And unfortunately, courts will also be less likely to order shared custody if only one parent is able to be civil and the other is not. This is because from the courts’ perspective it does not matter who is at ‘fault’ if the parents cannot effectively communicate, what matters is how a lack of effective communication has a negative impact on children.

Other factors

Other factors courts consider in determining how to allot time include how much time you have spent with the kids in the past, whether you have financially supported them, the effect of any change to living arrangements on the children, how each parent can provide for the children’s needs, and the parents’ attitudes to the children and the responsibility of being a parent. The children’s views are also taken into account, with greater weight given as the child gets older.

A family law gender bias for babies?

One matter to be realistic about as a father is how the age of your child may affect how courts determine shared care. It is a matter that is often debated by experts, but generally, the younger the child is, the more important it is for them to have consistency in their primary caregiver for reasons of attachment formation and separation anxiety. And when a baby is still being breastfed, the courts will not remove the baby from its breastfeeding mother and will not accept arguments that the mother “can just express milk”. However, fathers are not simply cut out of the picture. With babies, courts will usually grant a non-custodial parent shorter periods of time, but more frequently, to ensure the bond between the baby and its father is maintained. In some families, though, the parents will decide that the mother returns to full-time work while the father stays at home with the baby. If that’s the case, then the court will certainly take that into consideration if the father is considered the primary caregiver during the relationship.

The upshot is, if you are a dad who wants equal time with your kids, don’t give up and don’t accept the view that there is a family law gender bias in favour of mothers.

Don’t agree to less time with your children without first attempting mediation and considering Alternate Dispute Resolution processes. Ultimately, the majority of child custody cases are not decided through the courts but between the parents themselves. And even if you do end up in court over the kids, the law requires you to attempt mediation first.

Kids need their dads too and the law has formalised this—so don’t ever feel your gender will prevent you from having a relationship with your kids. Give us a call and let us help you stay in your child’s life after divorce or separation–please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

Read more practical tips for dads here. And you can also read more about the myth of a family law gender bias here.


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