Are men treated unfairly by the court in parenting matters?

What the research actually shows

A 2014 survey of separated parents found the most common arrangement was for children to live with their mother for at least 66 per cent of nights in a year. The next most common was for children to live with their mother and spend daytime only with their father.

A 2019 Australian Institute of Family Studies study looked at the small group of matters actually decided by a judge and found that sole parental responsibility was ordered to the mother in about 45 per cent of cases and to the father in about 11 per cent.

Both figures need context. Only around 3 per cent of parenting matters are decided by a judge. The overwhelming majority settle, so judicially determined cases are an unusual and often high conflict sample, not a picture of what separated families generally do.

What changed on 6 May 2024

The Family Law Amendment Act 2023 (Cth) took effect on 6 May 2024 and significantly reshaped parenting law. If you read anything written before that date, including the earlier version of this article, check it against the current position.

• The presumption of equal shared parental responsibility was removed. There is no longer a starting point that both parents should share decision making.
• The linked requirement to consider equal time, or substantial and significant time, was also removed. Equal time is no longer a step the court must work through.
• Section 60CC was rewritten. There is now a single list of factors directed at what is in the best interests of the child, rather than the old primary and additional considerations.
• Where an order for joint decision making about major long-term issues is made, the parents are expected to consult each other and make a genuine effort to reach a joint decision.
• Two further factors apply to Aboriginal and Torres Strait Islander children, dealing with their right to enjoy their culture.

The practical effect for fathers is that arguing for a legal starting point of equal time no longer gets you anywhere. The argument now has to be built on the child, on safety, and on the relationship you actually have.

Why traditional roles show up in orders

Historically women were treated as the primary carers and men as the earners. That has shifted, but the division of domestic and parenting labour in many households still falls unevenly.

That matters because the factors the court weighs include the nature of the child’s relationship with each parent, the extent to which each parent has taken or failed to take the opportunity to participate in the child’s life and in decisions about them, and the capacity of each parent to provide for the child’s needs.

Arrangements during the relationship therefore feed directly into arrangements after it, particularly on an interim basis, where a court has limited evidence and will often be reluctant to disturb a child’s existing primary attachment before a final hearing.

If you were not the primary carer

This is not a dead end. Arrangements including equal time are achievable. What often has to change is the expectation about timing.

A gradual increase in overnight time is a common path, because it limits disruption to the child. Where time with the father is positive and uneventful, and there are no safety concerns, there are usually reasonable prospects of building that time up over a period. Younger children generally require a longer and more gradual increase.

Become a self-sufficient parent

Do not rely on the other parent to pass on information about your child. Set yourself up so you receive it directly.

• Give the school or day care your contact details and ask to be listed for absence and illness notifications.
• Ask to be added to school emails, newsletters and any parent app, and actually read them.
• Attend parent teacher interviews and ask about academic progress and developmental milestones.
• Know the training times, game days and event dates for any extracurricular activities.

Where work commitments or distance make involvement genuinely hard, build a family support network around your time so the arrangement is workable rather than aspirational.

Other factors also carry weight, including the views of the child where they are of an age and maturity for those views to be given weight, and the practical and financial circumstances of each parent.

This article is general information. It is not advice about your situation, and parenting matters turn heavily on their own facts. Speak to one of our family lawyers before you make decisions about arrangements for your children.