How often do fathers get 50/50 custody in Australia: A legal guide

Co-parenting after separation can be a difficult process to navigate. While parents typically want what is best for their children, when going through a separation, they don’t always agree on what that may be.

By Evan Avtzis, Associate at AFL-Kordos, Melbourne.

There are some common misconceptions when it comes to parenting arrangements, such as:

• that the children have to live with mum; or
• that if the children don’t spend equal time with both parents, then the other parent is being unreasonable.

The truth is a little bit more complicated than that, as each family is looked at on an individual basis by the Court when determining what parenting arrangements are in a child’s best interests.

Because of this, it is difficult to provide a blanket statement for how often fathers get 50/50 custody of their children in Australia.

A survey of separated parents conducted in 2014 found that of those surveyed children spent equal time between both parents only 9% of the time, with children spending more time with their father than their mother only 7% of the time. It was instead far more common, 46% of the time, for children to spend the majority of the time with their mothers and spend smaller but more frequent time with their fathers.

This is largely due to traditional gender roles which have historically been present in families. As these gender roles change over time, the typical parenting arrangements are also likely to adapt to reflect the situations in families.

Don’t say “custody”

“Custody” is not a term that is used in the Family Law Act. Instead, the Act speaks about “parental responsibility”, and “live with” and “spend time with” arrangements for children.

Parental responsibility is simply the responsibility of parents to make long-term decisions in relation to a child. These decisions include things like:

• a child’s legal name;
• their religion; and
• what school they attend.

There is a presumption that parents share this responsibility equally, unless an order is made to the contrary.

“Live with” and “spend time with” arrangements are what most people think of when they say custody arrangements. They are the arrangements for whom a child lives with and what time they spend with each parent (and when).

How to decide how much time a child should spend with each parent

In deciding whether is it appropriate for a child to spend 50/50 time with both parents, the Family Law Act says that consideration should always be given to what is in the best interests of the child. But how do you figure out what is in a child’s best interests?

The Act sets out a number of considerations to determine what is in a child’s best interests and each family needs to be looked at individually however, there are two “primary considerations” which are given significant weight. These are:

• the benefit to a child of having a meaningful relationship with both of their parents; and
• the need to protect a child from physical or psychological harm.

It has long been the Court’s position that, where it is safe to do so, children should spend substantial and significant time with both of their parents. However, this does not always necessarily mean that they should be spending equal time with Mum and Dad.

Again, each matter needs to be looked at on a case-by-case basis. It is clearly not practical for a child to spend 50% of the time with each parent if each parent lives in a different Australian state, as this would make the commute to school impossible for the child. Instead, in such matters, substantial and significant time could mean school holiday time and plenty of phone contact during the school term.

In matters where family violence has been alleged or an intervention order has been taken out by one parent against the other, this can also impact parenting arrangements. This is because the Court will typically err on the side of caution to ensure the safety of the child while such allegations are investigated.

We explore more different scenarios about child custody schedules by age here.

The primary carer role influences how often fathers get 50/50 custody in Australia

One of the key factors in determining how much time a child spends with one parent over another, and a large reason why historically children have been ordered to live with their mothers over their fathers, has been the determination of who has been the child’s primary carer during the relationship.

There is a strong consensus amongst psychologists who specialise in child development that, particularly in very young children, it is important for children to mainly live with their primary carer and spend frequent, but shorter, periods of time with the non-resident parent. The importance of this decreases as children grow older, and the older a child is, the more likely it may be appropriate for them to spend 50/50 time with both parents.

While many roles associated with parenting are often shared during a relationship, a child’s primary carer is determined by looking at which parent does the majority of these tasks, and who the child feels safest/ most at home with.

Fathers can be a child’s primary carer with orders made for a child to live with their father and spend time with their mothers. The more hands-on a father has been during a child’s life, the more likely they will be considered to be a child’s primary carer.

While there are certain biological aspects to parenting, such as breastfeeding, which cannot be overlooked, the more a father does such as:

• cooking;
• cleaning;
• washing;
• school pickups and drop-offs; and
• helps with homework, the more likely they are to be considered a primary or equal carer of a child.

Thus, the more likely they will be to have the child live with them equally after a separation. For more information on fathers’ rights and getting more time with your child, learn more here.

Historically, traditional families have typically had one parent primarily focused on going to work and contributing financially towards the family, while the other parent focuses on parenting and home duties. These roles were typically filled by fathers going to work and mothers looking after the home and the children however, these entrenched gender roles have shifted drastically over the years. As we see an increase in families with stay-at-home dads, and families with both parents working, the determination of who is a child’s primary carer is likely to shift away from the traditionally held assumptions. Hence, the question of how often do fathers’ get 50/50 custody in Australia is also likely to see a shift in traditionally held assumptions.

Can things change?

While it can be very frustrating and disheartening to not get to spend as much time with your children as you did before separation, it is important to remember that things are not always set in stone. The amount of time a non-resident parent spends with their child can increase as the child grows older, and it becomes more appropriate for them to spend longer periods of time away from their primary carer. The amount of time you spend with your child can also sometimes be increased by agreement if that time has been progressing well.

Even in circumstances where final Parenting Orders have been made, these can be revisited if there has been a significant change in circumstances. These situations are limited, and advice should be sought from an experienced Family Lawyer to ascertain whether this has occurred.

If the aim is to increase time, it is important to remember that this is often much easier to achieve when there are open lines of communication between the parents, and they are able to effectively co-parent without constantly fighting and insulting each other.

If you’d like to understand how to get more time with your child or have any questions about how often fathers get 50/50 custody in Australia, call our friendly team directly or request a call back via the form below.