One of, if not the most distressing factor faced by a father upon the breakdown of his relationship, is the risk of losing his relationship with his children.
As any loving father would imagine, this scenario would be completely devastating.
Anecdotally, there seems to be a lot of misinformation within the community concerning Courts favoring mothers over fathers when it comes to child custody matters.
In Western Australia, when parents separate, one or both of the parents, a grandparent or any other person concerned with the care, welfare or development of the child may apply to the Family Court of Western Australia (the Court) for a parenting order.
The Family Court is guided by the provisions of the Family Law Act 1975 (Cth) (the Act) of Family Court Act 1997 (WA) (which, broadly speaking, mirrors the Act) when it considers each application.
The principal object of the Act is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Outdated traditional gender stereotypes are not a factor considered by the Family Court in determining what is in a child’s best interests.
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for both of the child’s parents to have equal shared parental responsibility for the child.
It is important for fathers to note that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It does not necessarily mean that a child spends an equal amount of time with one parent or another although in some circumstances that is a suitable outcome.
The Act places a high value on the parent (both mother and father) and child relationship. It will always be difficult to make a case that a child spends no time with his or her father (or mother for that matter). It is important to appreciate that it is your child’s right to enjoy a meaningful relationship with both of his or her parents.
When could a Court refuse to allow contact between father and child
Relationships involving family violence, particularly where it forms a pattern of dominating and controlling behaviour towards the mother or where a child has been exposed to physical or psychological harm, abuse, neglect or family violence are circumstances where the presumption of joint parental responsibility would not apply and the Family Court may refuse to permit a father to spend time with his child.
It should be stressed that these cases are certainly the exception rather than the norm.
What can I do if the mother is refusing to allow me to see our children?
If the mother is not allowing you access to the children and there are no Family Court Orders in place you should, initially, consider the strategies below to rectify the situation:
- talk to the mother in a safe environment and express your concerns;
- attend counselling sessions together, possibly including the children. Anglicare WA (www.anglicarewa.org.au) and/or Relationships Australia (www.relationships.org.au/) are a great starting point. Depending on where you live in Western Australia, they provide Family Dispute Resolution where parents/families can discuss issues relating to their children and develop parenting plans that are in the best interests of their children;
- see a psychologist together to address factors that may be causing the denial of access; and/or
- consider privately funded mediation.
In some instances, these steps may not be possible or appropriate particularly if the mother has applied for and obtained an (interim) family violence restraining order.
If that is the case it is important to seek legal advice from a lawyer experienced in family law matters at the earliest opportunity.
Parenting plans for fathers
Parents are strongly encouraged to enter into parenting plans to formalise arrangements in relation to children without recourse to the Family Court.
In practice, a father’s ability to remain actively and meaningfully involved in a child’s life will almost inevitably depend on the cooperation of the mother and their ability to agree on parenting arrangements that allow the child to spend time with each parent.
In the absence of cooperation and consent, a Judge or Magistrate is given the unenviable task of determining what is in your child’s best interests.
The experienced family lawyers at HFM Legal regularly advise clients with respect to children’s matters and assist clients with all other aspects of the breakdown of their relationship including property settlement, maintenance and divorce.