Shared care after separation - is 50/50 a right?

Few questions cause more anxiety for separating parents than how much time the children will spend with each of them. "Shared care" and especially equal, week-about care is often the first thing people ask about, and it is also one of the most misunderstood areas of Australian family law. This article explains when a shared care arrangement tends to work, how a court approaches an application for equal time, and whether the law gives either parent a right to a 50/50 split.

Family lawyers use "equal shared parental responsibility" to mean shared decision-making about major long-term decisions in a child’s life, such as where the child goes to school, serious health decisions, a child’s name and questions of religion. That is a different thing from "equal time," which is about where the children live and sleep. “Equal time” is the living arrangement. The two are routinely confused and much of the anxiety about "50/50" flows from mixing them up.

When is shared care appropriate?

There is no single arrangement that suits every family, and shared care is not a default arrangement. The social science research including long-running work by the Australian Institute of Family Studies consistently shows that equal or substantially shared care can be very good for children, but only where the surrounding conditions support it. The conditions that tend to make shared care successful are:

• A cooperative, low-conflict relationship between the parents. The most important ingredient is the ability to communicate and make joint decisions without drawing the children into the dispute. Where conflict is entrenched, the benefits of shared time tend to fall away, and the arrangement can become a source of stress for the child.

• Living close to one another. Practical proximity keeps a single school, friendship group and the usual activities within reach of both homes. Long distances make week-about care hard on children.

• Arrangements that suit the child's age and stage. Infants and very young children have different needs from school-aged children and teenagers. For young children in particular, the research is divided, and rigid equal-time schedules are approached with caution.

• Flexibility and a focus on the child. Parents who adjust around the child's activities, illnesses and changing needs rather than treating the roster as a strict entitlement to be enforced, tend to produce better outcomes.

• Two parents who can each meet the child's day-to-day needs, and the existence of a real, established relationship between the child and each parent.

• Safety. Where there is family violence, abuse or coercive control, shared care is generally not appropriate. Safety takes priority over every other consideration.

In short, shared care works when it is built around the child's needs and the parents can genuinely make it work in practice and not simply because the time is divided evenly on paper.

How do courts deal with an application for equal shared care?

The law changed significantly on 6 May 2024, when major amendments to the Family Law Act 1975 (Cth) (“the Act”) commenced. A lot of the information that is still circulating describes the old system, so it is important to be aware of the current approach.

The starting point has not changed, and the child's best interests remain the court's paramount consideration in every parenting decision. What has changed is the pathway the court uses to get there.

Before May 2024, if a court made an order for equal shared parental responsibility, it was then required to go on and consider whether equal time and, failing that, "substantial and significant" time was in the child's best interests and reasonably practicable. That mandatory obligation has been repealed. There is no longer any presumption of equal shared parental responsibility, and no automatic step that directs the court towards equal time.

Instead, the court now decides parenting arrangements by weighing a simplified list of factors set out in section 60CC of the Act. These are:

• what arrangements would promote the safety of the child and each person who cares for the child (including safety from family violence, abuse, neglect or other harm);

• any views expressed by the child;

• the child's developmental, psychological, emotional and cultural needs;

• the capacity of each person who has, or is proposed to have, parental responsibility to provide for those needs;

• the benefit to the child of being able to have a relationship with each parent, and other people who are significant to them, where it is safe to do so; and

• anything else that is relevant to the particular child's circumstances.

There is no order of priority among these factors, and no one factor automatically outweighs the others. The court decides how much weight each carries in each particular case. In every case it must specifically consider any history of family violence, abuse or neglect, and any family violence order. Additional considerations apply for Aboriginal and Torres Strait Islander children, including their right to connect with, and maintain their connection to, family, community, culture and country.

In practice, a parent seeking equal time will need to show, through evidence, that such an arrangement genuinely works for their child, that it is safe, that the schedule is practical alongside school and daily routine, and that each parent has the capacity to provide the care required. The court may be assisted by a family report prepared by a psychologist or social worker, and an Independent Children's Lawyer may be appointed to represent the child's interests.

Equal time remains available. However, if parents disagree and need a court to decide whether it is appropriate, that dispute may itself indicate the absence of the cooperative, low-conflict relationship needed for shared care to work well.

Most families never reach a courtroom. Parents are expected to attempt family dispute resolution first and, where it is safe to do so, to try to agree on a parenting plan. Court is the last resort, not the starting point.

Does the law give a parent a "right" to 50/50?

This is the most common misconception parents bring to a first appointment. No parent has a legal right to equal time, and children are not divided in half in the interests of fairness between their parents.

Australian family law has never contained a right to a 50/50 parenting arrangement. The focus of the Act is the child's best interests and safety and not the perceived entitlement of either parent. A parent can seek an order for equal time and may obtain it where it suits the child. But they cannot demand it as a right, and a court will not order it simply to treat the two parents even-handedly.

The practical takeaway

Equal shared care can be the right answer for the right family with cooperative parents, who live close by, and can run a schedule that genuinely suits their children. But it is an outcome to be achieved on the facts, not a right to be claimed. If you are separating, the most useful thing you can do is focus on what will actually work for your children, keep them out of the conflict, and get advice early about your particular situation.

Contact Fiona Hoad and the experienced family law teams at Bartier Perry for tailored, practical advice specific to your personal circumstances.

Author: Fiona Hoad

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.