Children at the heart of bust-up principles

What does 50% rights to children really mean?  A frustrated father wonders.


When will men have equal rights to their children? The media purport that things have changed and men have greater or 50 per cent rights to their children. But this is a fantasy, for to realise any right in our court system, one needs to spend tens of thousands of dollars as I had to, just to realise basic rights, a luxury which many fathers don’t have. There is significant prejudice against us.


In the event of a dispute between a father and a mother, the Family Law Act sets out the relevant principles to be applied by our court system. The concept of a parent’s “rights” to their children does not exist in the relevant legislation and this is unlikely to change in the foreseeable future.

The Act provides a premise that it is in fact children who have “rights”, and it is parents who have “responsibilities”. The rights of children (except where it is contrary to their best interests) include their right to know and be cared for by both parents, as well as to spend time with both parents on a regular basis.

When a couple cannot agree to the living arrangements of their children, the court has to make a decision based upon the Act and what it considers to be in the best interests of the child. The outcome will therefore depend upon the individual circumstances of the child, such as the child’s views, who has historically been the primary carer of the child, and the level of conflict between the parents.

Following changes to the law in 2008, the court will often grant parents “equal parental responsibility”, meaning they are both “guardians”. This is a different concept to the child’s living arrangements.

It is usually in everyone’s interests to attempt to negotiate an outcome outside of court by contacting agencies such as Relationships Australia who provide mediation services. Unfortunately, this is not always possible, and the matter must be brought before the court to determine what is in the child’s best interests, and to ensure the child’s rights are met. Whilst these proceedings can be difficult and costly (if using a private lawyer), the vast majority of matters settle by agreement before trial.

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Relationships Australia (SA) appoints panels of general practitioners, medical specialists, lawyers, therapeutic and financial counsellors to discuss each letter before the appropriate professional answers it.