By Bianca McDuff – Senior Family Lawyer

Having practised in Family Law for several years, a common concern I hear from fathers is the perception that the Court is biased against men. Whilst the Family Law Act is written in gender-neutral terms and does not contain any considerations that specifically favour mothers, the statistics from various studies of post-separation parenting arrangements seem to suggest favouritism by the Courts towards women.

In a survey of separated parents in 2014[1], the most common post-separation parenting arrangement was for the children to live with their mother (at least 66% of nights in a year), with the next most common arrangement was for the children to live with the mother and spend time with the father in the daytime only.

A more recent 2019 study by the Australian Institute of Family Studies[2] showed that in the small portion of cases determined by a judge: –

• 45% of Court Orders provide for sole parental responsibility by the mother; and
• 11% of Court Orders provided for sole parental responsibility by the father.

It should be noted that it is difficult to accurately calculate the “typical” parenting arrangements as approximately 3% of parenting matters go to Court.

Whilst there is no universal answer as to whether Family Law courts are biased towards men or not, perhaps it is the traditional family role that is disadvantaging men in parenting matters.

Historically speaking, women were seen as the primary caregivers for children, while men were seen as the breadwinners. In more recent years, with a shift in societal attitudes and economic necessity, more women are entering and remaining in the workforce. Despite this increase in dual-working families, some may argue that the division of domestic labour (parenting and household duties) continues to fall primarily on women.

This perceived traditional family role/inequity of division of domestic labour is likely one of the primary reasons why there is a perception that the Court is biased against men. In determining parenting arrangements, the Court is required to have regard to such considerations as:-

• the nature of the relationship of the child/children with each of the child/children’s parents;
• the extent to which each of the child/children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child/children, to spend time with the child/children and to communicate with the child/children; and
• the attitude towards the child/children and to the responsibilities of parenthood demonstrated by the child/children’s parents.

It is apparent from the above considerations that parenting arrangements during the relationship can have an impact on post-separation parenting arrangements.  This is especially the case in the short term, where the Court will often make interim parenting arrangements that provide for the child/children to live predominately with their primary attachment (often the mother).

Should you find yourself in a situation where you have not been the primary caregiver for your child/children during the relationship, all is not lost. Parenting arrangements such as equal time are achievable however, you may need to be patient as to when this is achieved.

A gradual increase in overnight time is a common method adopted by the Courts in order to minimise potential distress to a child. Generally speaking:-

• if the time between the child/children and their father is positive and without incident; and
• there are no safety risks or concerns;

you will have reasonable prospects of obtaining an increase of time order from the Court. Over time, this can build up to parenting arrangements such as equal time. Younger children in particular will likely require a longer gradual increase in time.

Additionally, following separation, it is recommended that you do not simply rely upon the other party to relay information surrounding your child/children. Instead, become a self-sufficient parent. Some examples of this are:-

• ensuring that your child’s day-care/school have your contact details and that they provide you with notifications surrounding your child/children e.g. non-attendance and illnesses;
• ensuring that you receive your child’s day-care/school emails/newsletters. If your child’s school utilises an application, frequently assess this application to obtain information surrounding upcoming events, school excursions and the like;
• attending parenting-teacher interviews and making enquiries surrounding your child’s academic performance/ developmental milestones; and
• if your child/children are engaged in extracurricular activities, ensure that you are aware of any relevant events, training, or game days.

In short, actively involve yourself in your child/children’s life. The Court recognise that some fathers may find this difficult due to practical difficulties such as work commitments and the geographic location of each parent. If this is the case, consider developing a family support network.

In addition to the factors discussed above, there are a number of other factors that may influence the Court’s decision in parenting matters. These include such matters as the child’s wishes (if they are of an appropriate age and maturity) and the financial circumstances of each parent.

Further advice with respect to parenting matters can be obtained by contacting one of our Family Law Solicitors. Call Now for a chat.

[1] https://aifs.gov.au/sites/default/files/2022-06/post-separation-parenting-property-and-relationship-dynamics-after-five-years-full-document.PDF

[2] https://aifs.gov.au/sites/default/files/publication-documents/1910_parenting_arrangements_after_separation.pdf

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.