“Can a father get 50/50 custody in Australia?” is one of the most common questions fathers ask us.

And yes, a father can have an equal-time arrangement with his children.

But that doesn't mean the Family Court will automatically order 50/50, or that there is a rule saying children should spend half their time with each parent.

The Court isn't trying to divide the children equally between two parents.

It is trying to work out what parenting arrangements will be best for these particular children, in this particular family.

So if you are a father asking “can a father get 50/50 custody in Australia?”, the more useful question is:

Would an equal-time arrangement work for my children, and what would I need to show for the Court to consider it?

That's what we'll look at in this guide.

Is there a presumption of 50/50 custody in Australia?

No.

There is no presumption that children should spend equal time with each parent.

There is also no longer a presumption of equal shared parental responsibility.

This doesn't mean that a father can't have 50/50 time with his children.

It means the Court doesn't start at 50/50 and then look for reasons why you shouldn't have it.

The starting point is the children and what arrangements are in their best interests.

It is also worth understanding that parental responsibility and parenting time are two different things.

Parental responsibility is about responsibility and decision-making for your children.

Parenting time is about when the children live with or spend time with each parent.

Having joint decision-making responsibility does not automatically mean the children will spend equal time with each parent.

What does 50/50 custody actually mean?

“Custody” isn't really the language used in Australian family law anymore, but it is still the word most parents use when they talk to us, and it is certainly what people search online.

When fathers ask us “can a father get 50/50 custody in Australia?”, they are usually talking about the children spending approximately equal time with each parent.

That could mean week-about; but it doesn't have to.

Depending on the children's ages, school arrangements and family circumstances, equal time can be arranged in different ways.

The important question isn't whether the number of nights adds up perfectly.

The question is whether the arrangement actually works for the children.

What does the Family Court consider when deciding equal time?

There isn't a separate checklist for fathers seeking 50/50 time. The Court considers what is in the children's best interests.

That includes things such as:

• the safety of the children and the people caring for them;
• any views expressed by the children;
• the children's developmental, psychological, emotional and cultural needs;
• each parent's capacity to meet those needs;
• the benefit to the children of having a relationship with both parents, where it is safe; and
• anything else relevant to the particular children and their circumstances.

But when you are asking for an equal-time arrangement, there are also some very practical questions that need to be answered.

Would 50/50 actually work for your children?

This is where we encourage fathers to move beyond “I want equal time” and think about what equal time would actually look like.

For example:

• How old are the children?
• Where do they go to school?
• How far apart do the parents live?
• Can both parents get them to and from school?
• What are the parents' working hours?
• Who currently manages school, medical appointments and extracurricular activities?
• What are the children's existing routines?
• How well do the children cope moving between homes?
• Are there any additional medical, developmental or emotional needs?
• Can the parents communicate about the children when they need to?
• Are there any safety concerns?

These aren't small details; they are the things that determine whether the parenting arrangement you are asking for could actually work.

Can I get equal time as a father if the mother doesn't agree?

Potentially, yes.

The other parent's agreement is not required before you can ask the Court to make parenting orders for equal time.

But simply asking for 50/50 doesn't mean the Court will order it.

If the other parent doesn't agree, the Court will need to consider both parents' proposals and the evidence before it, and decide what arrangements are in the children's best interests.

That is where your reasons for seeking equal time become important.

“Because I'm their father and I deserve half the time” is very different from being able to explain how an equal-time arrangement would work for your children and why you say it would meet their needs.

What if I haven't had 50/50 before?

This is an important one.

If the other parent has historically done most of the day-to-day parenting, you need to be realistic about that.

It doesn't necessarily mean you can never have equal time.

But the Court will look at what has actually happened in your family, not simply what each parent says should happen now.

If you are asking to move from limited time to equal time, think about what that change would mean for the children.

How significant would the change be?

What parenting role have you had until now?

Are you able to manage the children's school and weekday routines?

Do the children already spend substantial periods in your care?

Would the change happen immediately, or would a gradual increase in time make more sense for the children?

There is a big difference between a father who has been doing close to half the parenting for years and a father who has historically spent one weekend a fortnight with the children and is now asking to move immediately to week-about.

That doesn't mean one father is more important than the other.

It means the history and circumstances are different, and the proposed arrangements need to take that into account.

What if we already had 50/50 and my ex stopped it?

That is different again.

If your children have already been spending equal time with both parents and that arrangement has been working, that history may be very relevant.

Keep records of what the arrangement actually looked like.

• When were the children with you?
• Who handled school?
• Who attended appointments?
• How long had the arrangement been operating?
• Was it working?
• Why did it stop?

If the other parent suddenly changes an established arrangement, get legal advice early rather than allowing months to pass without understanding your options.

What evidence can help if I want 50/50 custody?

You don't need to create a mountain of evidence simply because you want equal time.

You need evidence that helps show what your parenting role has been and why the arrangements you are proposing would work for the children.

Depending on your circumstances, that might include:

• calendars showing the time the children have spent with you;
• school communications;
• medical appointments you have attended;
• messages between the parents about parenting arrangements;
• evidence of your involvement in sport and extracurricular activities;
• work arrangements showing your availability to care for the children; and
• evidence about the children's existing routines.

Think about what you are trying to establish.

If you say you have been caring for the children almost half the time for the last two years, can you show that?

If you say you are responsible for getting them to school three mornings each week, can you show that?

If you say week-about would work easily because you live five minutes from the children's school, make sure your proposal actually reflects that practical reality.

Does 50/50 have to mean week-about?

No.

Equal time doesn't necessarily mean the children change homes every seven days.

For some families, week-about works very well.

For others, particularly with younger children, a different arrangement may work better.

There are many ways parenting time can be structured.

What matters is not finding the neatest mathematical split.

It is finding an arrangement that works for your children.

How can a father get more time with his children in Australia?

Sometimes 50/50 isn't actually the immediate issue.

What the father really means is:

“I'm not seeing my children enough. How do I get more time with them?”

The answer depends very much on why you currently have the arrangement you do.

• Perhaps you agreed to limited time shortly after separation.
• Perhaps the other parent has gradually reduced your time.
• Perhaps your work arrangements have changed.
• Perhaps the children are older now.
• Perhaps an arrangement that made sense two years ago simply doesn't make sense anymore.

Before deciding that 50/50 is the answer, work out what parenting arrangement you actually want and why.

Then look at what would need to change to make that arrangement practical for your children.

Equal doesn't always mean fair, and fair doesn't always mean equal

This can be a difficult idea when you are separating.

It is understandable to think:

“They're her children and they're my children, so we should each have half the time.”

But parenting proceedings aren't about giving each parent their fair share of the children.

The children aren't an asset to be divided.

The question is what arrangement works best for them.

Sometimes that will be equal time; sometimes it won't.

And sometimes an arrangement that isn't exactly 50/50 on a calendar still gives both parents a very significant and meaningful role in their children's lives.

Should I ask for 50/50 custody?

Don't start with the percentage; start with your children.

• What are their ages?
• What has their care looked like until now?
• What relationship do they have with each parent?
• What are their school and activity arrangements?
• Where does each parent live?
• What would an ordinary Wednesday morning look like under your proposed arrangement?

If you can answer those questions, you are getting much closer to working out whether equal time is a sensible proposal.

If you're trying to work out whether a father can get 50/50 custody in Australia in circumstances like yours, getting legal advice doesn't mean you have to start Court proceedings.

It can simply help you understand whether the parenting arrangement you want is realistic, what your options are, and what you should be doing now.

So, can a father get 50/50 custody in Australia?

Yes.

A father can have an equal-time parenting arrangement with his children.

But there is no automatic right to 50/50 custody and no presumption that equal time should be ordered.

If parents agree that equal time works for their children, they can make that arrangement.

If they don't agree and the Court is asked to decide, the Court will look at the individual children, their family circumstances and the evidence before it to determine what arrangements are in their best interests.

So instead of asking only:

“How do I get 50/50?”

ask:

“Why would 50/50 work for my children, and can I show that?”

That is a much better place to start.