The principles guiding custody have not changed; the best interests of the child remain paramount under the Family Law Act. What has changed is the dynamic of families in Australia, writes Michael Tiyce.
There is a view that custody disputes in Australia have long followed a familiar pattern, with mothers assumed to be the primary carers and the fathers the secondary. Courts often reflected those social norms, having children spending most of their time with one parent and visiting the other on weekends. That pattern is changing, however, and quickly.
With the federal government reviewing paid parental leave and with more fathers taking extended time away from work, the old assumptions about who raises a child no longer hold. The effects of these changes flow into the family courts, where parents are increasingly seeking, and securing, equal shared care arrangements.
A legal shift driven by policy
The Family Law Act has always placed the child’s best interests above all else, with assessment depending heavily on the evidence presented. For decades, the reality was that mothers carried the bulk of caregiving, particularly in the early years, with courts and outcomes reflecting this reality.
Changing social values and norms have, in turn, changed this approach. Fathers who take three, six, or 12 months of parental leave create a track record of feeding, bathing, attending medical appointments and providing daily care. When separation occurs, the court is presented with proof of two active, capable parents, making it difficult to argue that one should become secondary.
The rise, and limits, of 50/50
The courts are increasingly open to considering parents seeking equal time, provided they are workable; however, shared care is not without its challenges. It requires geographic proximity, a degree of cooperation, and child-focused flexibility.
The Family Court has historically exercised caution around very young children, particularly where long separations from a primary carer could be disruptive. That caution remains relevant, but the threshold for identifying a “primary carer” is changing, shifting the question from why 50/50 should be considered, to why it should not be, in circumstances where both parents are demonstrably capable and involved.
The broader cultural shift
This evolution in custody reflects broader changes in Australian society, away from expectations that mothers will sacrifice careers, while fathers prioritise income. Many families now share caregiving from the outset, and children benefit from maintaining meaningful relationships with both parents, something that the courts must respond to.
Looking ahead
The principles guiding custody have not changed; the best interests of the child remain paramount under the Family Law Act. What has changed is the dynamic of families in Australia, with policy reforms expanding parental leave and employers encouraging fathers to take it, more children will grow up with two equally hands-on parents.
For family lawyers, it means advising clients with fresh eyes and removing the assumptions of outdated stereotypes. For the courts, it means a continued emphasis on practical, evidence-driven decisions that reflect the lives of modern Australian families. The custody battles of the future will not ask who used to look after the baby; instead, how both parents can continue to do so, together, even after separation.
Michael Tiyce is the principal at Tiyce & Lawyers Family Law Specialists.
