Do fathers have fewer rights in family law?

Do fathers have fewer rights in family law?

21 October 2021 By Christopher Garabedian
Christopher Garabedian

A hugely common misconception I have witnessed in my short time in the family law landscape is that you have no chance in court if you are a father, writes Christopher Garabedian.

The notion that fathers are at a disadvantage in court proceedings by virtue of being a father is far from the truth. Family law provides a child has a right to a meaningful relationship with both parents. Hence, both fathers and mothers are legal equals at the start of court proceedings.

In the opinion of the author, fathers do not have lesser rights than mothers in family law. However, I do believe that there are several dynamics in play that give off this perception.

One such dynamic is that historically, the courts have had a bias favouring mothers. I have seen time and time again people swearing that this is still the case because of their personal experience or an experience of their friends or family members.

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Is this still the case? Or are there other factors in play? As we can see, the perception that fathers have less rights is exacerbated by mothers typically obtaining a greater degree of parental responsibility in parenting arrangement disputes.

So, why does the former occur?

A significant contributing factor to this is the continued existence of stereotypical gender roles in the modern Australian household. This is the dynamic where the father is the family’s primary breadwinner, and the mother looks after the home and children. The result of this dynamic is that now a much greater bond has formed between the mother and children.

This “greater bond” is now a significant decisive factor skewing the court’s opinion favouring the mother. Parenting arrangements are decided on the legal basis of the best interests of the child” as reflected in the Family Law Act 1975.

The greater bond formed among the mother and children align with several of these best interests” considerations:

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  1.   The benefit of the child having a meaningful relationship with both parents;
  2.   The likely effect of any changes in the child’s circumstances, including separation from either parent; and
  3.   The views expressed by the child.

This brings us to the role of psychology and attachment theory in the decision-making process.

Due to this greater bond formed, the mother has now become the primary attachment figure for the children. Accordingly, the courts will be hesitant to separate the mother and the children because of this bond. The ramifications of doing so will have a damaging psychological impact on the vulnerable minds of the children. The consequences can severely impact their development and produce significant life-long implications.

It is common to see that younger children, in particular, exhibit anxiety and stress at changeovers, where they do not want to be separated from their primary attachment figure.

Accordingly, the children themselves will hold the view that they prefer to live with the mother in such circumstances.

So, to answer whether I believe fathers have lesser rights than mothers in Family Law? I do not think they do. I believe the situation can be attributed to household dynamics and the accompanying attachment formed with the stay-at-home parent and children. Assuming these typical household gender roles were reversed and all other factors were equal – I believe the father would now obtain a greater degree of parental responsibility.

Christopher Garabedian is a law student and marketing and business development coordinator at JB Solicitors. 

Do fathers have fewer rights in family law?
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