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What are a Father’s Rights to see their child in a Child Custody Dispute?

2 min read

30 Apr 2021

Divorce can be tricky for all parties involved. It’s also very confusing as a father in this process as there’s a lot of white noise around what a father’s rights are in the case of a divorce when children are involved.

Despite emotions running high, you’ll want to remain level-headed and prioritise what’s best for your children – and with the proper advice, the damage a divorce can bring can be better limited and more easily managed.

Best Interests of the Child

When deciding on children’s matters the court is predominately interested in what is in the best interests of the child. For fathers this includes your children having a meaningful relationship with you.

The court is also interested in protecting the child from physical, psychological harm and exposure to neglect, abuse or family violence.

Where you have a good relationship with your children, you should be able to expect to see your children quite frequently.

However, it can be more complicated when there has been allegations or instances of abuse or family violence. This may not necessarily mean the end of your relationship with your children and rights to see them. If you are a father wanting to see your children, then the court can accommodate this and make an order for a variety of different ways you can see your children such as short or supervised visits.

Presumption of equal shared parenting

The family court also has another fundamental presumption of equal shared parental responsibility. This is the first basis of decision making that both parents have equal rights and responsibilities in caring for their children. That means you automatically have the right to participate in decision making for the children, providing they are major long-term decisions.

Depending on the age (and other relevant factors) of your children custody arrangements can be different. Things such as your ability to care for your children can affect how much time you have with them.

Many parents can sort out custody arrangements of their children between themselves. It is only when there are problems or persistent issues occur that a parent may seek to take further legal action to get a parenting plan or court order.

Another key principle of family law is that of mediation.

The legislation governing parental disputes strongly encourages parents to try to come to agreements without the need to commence legal or court proceedings.

Mediation is an essential initial part of the process for parents to meet with a mediator and to try and reach an agreement before any legal action is commenced. If mediation fails, then you will get a certificate confirming you have attempted mediation and you can take the next steps in the legal process to enforce your legal right to see your children. Mediation can be attempted later as well and may have a better outcome – so be patient.

Fathers can often be frustrated at this stage of the process as they often will have limited or no contact with their child. It is important to realise that the feeling of being frustrated and angry or sad are real and often painful. It is important to seek help to deal with your emotions constructively.

If you are not dealing well at this time, tensions can boil over and lead you to making some poor decisions that will not help you in the long term.

As a father there are many practical steps you can take to help improve your chances in getting or retaining custody of your children.

Here are a few do’s and don’ts for fathers involved in disputed child custody matters:


  • Use your common sense.
  • Demonstrate that you are responsible and reasonable.
  • Stop any illicit drug use and minimise or even quit your alcohol intake. Seek assistance if you find it difficult to do so.
  • Keep detailed records of your spending including your expenditure on your children.
  • Keep a diary of related incidents such as important dates, times and details of every interaction with your ex and the children.
  • Retain all emails and messages and back them up regularly in case you lose your data.
  • Keep a level head at all times. Think hard before acting.
  • Avoid arguments and learn what triggers you to react badly so you can avoid heated discussions.
  • Do everything the court orders thoroughly, even if you disagree with the order itself. This is very important.
  • Be a good parent and make your children the highest priority in your life.
  • Avoid giving your ex any ammunition that they can use against you in the future. Track your past actions on the internet. Remember: all comments you make on social media can be used against you.
  • Contact an experienced family lawyer who will be able to provide valuable advice specific to your circumstances.


  • Breach an intervention order or any other Court Order.
  • Be hostile or irrational towards your ex or in Court proceedings.
  • Threaten your ex.
  • Move out of the house without taking important documentation and personal items with you.
  • Speak badly about your ex in front of your children. You should also never use your children as tools to send messages back and forth between you and your ex.
  • Talk about your divorce and other related family matters on social media.
  • Leave the state or country with your children without the consent of the other legal guardian. This is viewed extremely seriously by the Court and may cause you serious complications in any future court proceedings.
  • React to other people’s anger.
  • Sign any documents or contracts without first discussing matters with a Family Lawyer.

Seeking Advice Early

By seeking expert advice in the early days of your separation process you will increase your chances of being able to come to an amicable agreement. This will avoid your matter being dragged out and becoming an emotional and financially costly process. Relying on advice from family, friends and neighbours will only get you confused – getting expert legal advice is key to getting good outcomes.

You will know what options you have and we can give you practical advice on how to improve your chances of getting custody of your child.

We understand family law through the lens of how the judges have and do make decisions on cases and what issues they regularly look at.

At PCL Lawyers, we pride ourselves on providing friendly, expert family law advice. Our experience and professionalism in this area means we are well-equipped to get you the best outcome possible. We are well versed in acting for our clients in Melbourne family courts and our family lawyers take a pragmatic approach to resolving matters as quickly as possible.

Providing clients with the best possible service and advice.

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