Does 50/50 Parenting Still Apply After Separation?

One of the most common questions separating parents ask is:

“Am I entitled to 50/50 custody of my children?”

There is still considerable confusion about this issue, particularly following recent changes to Australian family law.

The short answer is that there is no automatic entitlement to equal time with children after separation.

The focus of Australian family law is instead on what parenting arrangement is in the best interests of the child.

The law has changed

In May 2024, significant changes to the Family Law Act came into effect.

One important change was the removal of the previous presumption of equal shared parental responsibility. The legislation now provides a simplified framework for determining what arrangements are in a child’s best interests.

This does not mean equal parenting arrangements have disappeared.

Parents can still agree, or a Court can determine, that children should spend approximately equal time with each parent where that arrangement is appropriate.

The important distinction is that 50/50 is not the starting point or an automatic right.

What does the Court actually consider?

When determining parenting arrangements, the Court’s paramount consideration is the best interests of the child.

This involves considering matters such as the child’s safety, their developmental and emotional needs, the capacity of each parent to meet those needs and the benefit to the child of having relationships with their parents and other significant people where it is safe to do so.

Every family is different.

An arrangement that works well for two parents living ten minutes apart may be completely impractical where the parents live several hours away from each other.

The age of the children, school arrangements, work commitments and the history of each parent’s involvement can also be relevant.

Does spending more time with the children mean you are the better parent?

Not necessarily.

Family law proceedings should not become a competition about which parent can secure the greatest number of nights.

A parenting arrangement needs to work for the children.

For some families, that might involve equal time. For others, the children may primarily live with one parent while spending substantial and meaningful time with the other.

The appropriate arrangement depends on the circumstances.

What if we can agree ourselves?

Parents do not necessarily need a Court to determine their parenting arrangements.

Many separated parents successfully negotiate arrangements directly, through lawyers or with the assistance of Family Dispute Resolution.

Depending on the circumstances, those arrangements can then be documented through a parenting plan or formalised through consent orders.

Reaching an agreement outside Court can give parents significantly more control over the outcome and may reduce the emotional and financial cost of a parenting dispute.

What if we cannot agree?

If agreement cannot be reached, Court proceedings may ultimately become necessary.

Generally, parents are required to attempt Family Dispute Resolution before commencing parenting proceedings unless an exemption applies, including in certain urgent matters or where there are family violence or child safety concerns.

Obtaining advice early can be particularly important before positions become entrenched.

At EAS Legal, our Family Law team regularly assists parents with negotiating parenting arrangements and representing clients where Court proceedings become necessary.

The important thing to remember is simple:

Family law is not about a parent winning 50% of a child’s time. It is about finding an arrangement that works in the best interests of the child.

Frequently Asked Questions