Introduction
Q1: My ex wants week about with our 3 year old. Will the court agree to that?
A: It can happen, but it is rare, and the judge has to explain why it suits your child. In one appeal, the Family Court overturned an interim week about order for a 3 year old. Neither parent had asked for it, and the judge never explained why it was right for a child that young. Reference: Badrick & Gresham (No. 2) [2020] FamCAFC 202
Q2: How often do fathers get 50/50 custody in Australia when the child is still very young?
A: There is no rule for or against it. The answer depends on the evidence about your child. On appeal, the Family Court let interim equal time continue for a 3 year old in three day blocks, because a judge's general doubts about shared care at that age are not evidence about this child. Reference: Tanberg & Remmy [2021] FamCAFC 49
Q3: My 4 year old has never stayed overnight with me. Can I still get overnight time?
A: Yes, but expect it to be built up in steps. In one case the court found a 4 year old was ready for overnights with her father, then phased them in over about 9 months until she spent 4 nights a fortnight with him. Reference: Beadle [2009] FMCAfam 1147
What does the law say about child custody arrangements for young children?
Australian law fixes no custody schedule by age. No rule requires a baby to live mainly with one parent, and no rule entitles a 3 year old to equal time. The word custody has dropped out of Australian law altogether. Instead, the court makes whatever parenting orders serve your child's best interests, and the child's age ranks among the most important facts it weighs.
The rules shifted on 6 May 2024. Until that date, the Family Law Act 1975 began from a presumption of equal shared parental responsibility (section 61DA), and wherever that applied, section 65DAA obliged the court to consider equal time, or failing equal time, substantial and significant time. The Family Law Amendment Act 2023 swept both away. Now section 60CC of the Family Law Act 1975 hands the court a shorter list of matters to consider, among them the child's safety, the child's developmental, psychological, emotional and cultural needs, and the benefit to the child of a relationship with both parents where that is safe.
Because the cases in this article were decided under the old law, they speak of equal time and reasonable practicability. The practical questions those judges weighed still arise under section 60CC: how old the child is, how long the child can comfortably spend away from each parent, whether the parents can communicate, and what distance, school and work rosters permit. For a young child, the court usually weighs five things:
- Safety comes first. Where a genuine risk exists in one parent's care, heavy drinking or family violence for example, the court will cut back or restructure that parent's time before turning its mind to an even split: Euclid & Brantley [2023] FedCFamC2F 1612.
- The child's age and stage of development. Extended blocks away from either parent can overwhelm a very young child. In one case a family consultant declined to support week about for children aged 4 and nearly 2 because of how long they would spend apart from each parent: Willis & Field [2014] FCCA 514.
- Each parent's ability to meet the child's needs. Even where both parents are capable, the court may still favour the parent more attuned to the child's emotional needs, or the one who has done the work of getting the child help: Willis & Field.
- A relationship with both parents, built at the right pace. Courts frequently build time up step by step, adding overnights gradually, say, or holding off until a child has settled into school: Banning & Wylie [2009] FMCAfam 1049.
- Practical facts. The gap between homes, the beginning of school and shift work rosters can defeat an arrangement that seems fair on paper: Meyer & Shipton (No. 2) [2013] FCCA 2198, Marchand & Mahony [2017] FCWA 67.
The court is not working out which parent has earned more time. One judge, in a finely balanced case between two good parents, put it this way:
However, X is not to be awarded, like a prize, to the more deserving parent.
Core Point: No standard custody schedule exists for a toddler or preschooler. The court works out what this particular child needs at this age, tests it against safety and practical limits, and often plans for the arrangement to shift as the child grows.
Why does the right schedule matter so much for a young child?
Parents often see the schedule as a contest over percentages. With a young child, how long each block runs, how many changeovers there are and when any change happens can matter more than the overall split. If you get the schedule wrong:
- An order made too fast can be overturned. A judge who makes a big change for a very young child without hearing argument on it, or without explaining why it suits the child, runs the risk of an appeal, and that brings the child more cost and more uncertainty.
- Pushing for equal time can backfire. In Willis & Field, equal time had already run between the parents for about 11 months. The mother argued that the children should live mainly with one parent, even if that parent turned out to be the father. The court read her approach as showing a focus on the children's needs and ordered that they live with her.
- A schedule that suits a toddler may not survive school. In Meyer & Shipton, week about between homes 93 km apart held together for a time, yet it could not carry on once the child started school, and the parents then faced a full trial over where he would live.
The first point is precisely what unfolded in the case below.
Consent orders made in 2018 provided that the child would live with his mother and spend alternate weekends with his father, on the footing that the mother undertook mental health treatment. In June 2019 the mother asked the father to take over the child's full-time care, and the arrangement reversed: the child lived with the father and saw the mother on alternate weekends. Later the mother kept the child, and the father applied for orders to have him returned.
At the interim hearing the father sought orders for the child to live with him, with alternate weekends to the mother. The mother wished to resume primary care and raised week about only as a possibility somewhere down the track. The father's evidence took in the mother's history of threatening suicide, of being scheduled under state mental health laws, child welfare involvement with both of her children and unstable housing. The judge ordered week about then and there, reasoning that the child faced no risk in either parent's care.
Outcome: The appeal was allowed. Week about had been proposed by neither parent, so the father never received a chance to argue against it. The judge had also misread the risk, which lay not in the child being unsafe for a weekend but in the mother's inability to care for him over any extended period. The child, then 3, was ordered to live with the father and spend alternate weekends with the mother.
Consideration of the decided cases demonstrate that it is a most unusual order for such a young child.
Key Point: Week about for a toddler is not banned, but it is unusual enough that the court will want clear evidence and clear reasons before making such an order. If you put it forward, be ready to show why it suits your child. If you resist it, make sure the court hears your reasons.
How do courts set custody schedules by age for young children?
Every family is different, but the cases group into three situations that parents of young children meet most often: an equal time arrangement that one parent wants to end, a parent seeking more time including overnights, and practical limits such as distance, school, shift work and safety.
Scenario 1: Your young child is already in equal time and one parent wants to change it
Common Misconception: Courts always bring equal time to an end for children under 3 or 4.
Legal Truth: The court looks at the evidence about this child. An arrangement that is working can carry on, even for a very young child, if nobody shows the proposed change would be better. Equally, an arrangement that has worked for months can still come to an end if the parents cannot operate it together.
the fact that in many other cases heard by the primary judge, experts have opined that shared care arrangements are not ideal for children of this age, does not forestall the possibility that such orders might be, in all of the circumstances of the child's case, in her best interests.
The child, born in 2017, began with alternate days spent with each parent, and in December 2019 the parents agreed to interim orders for equal time in three day blocks while a single expert's report was awaited. That report arrived in March 2020 but made no recommendation about the arrangement. The expert did say, though, that three days in a row looked like the maximum time the child should spend away from her mother.
In October 2020 the mother sought orders for the child to live with her and spend 5 days a fortnight with the father. The father wanted equal time to keep going in shorter blocks. The judge said more than once that he doubted equal time suited a 3 year old, yet he refused both applications because the evidence failed to show that either change would improve things for the child.
Outcome: The mother's appeal was dismissed, and she was ordered to pay $12,500 of the father's costs. A judge cannot lean on what experts said in other people's cases, so the existing three day rotation remained in place until trial.
Set that beside Willis & Field, where equal time had likewise run for about 11 months and the children were described as well cared for. The result differed because of how the parents got on and because of what the family consultant said about time away from each parent.
| Comparison | Tanberg & Remmy [2021] | Willis & Field [2014] |
|---|---|---|
| Children's ages | 3 | 4 and nearly 2 |
| How the equal time started | Interim consent orders, three day blocks | Compromise between the parents, running for about 11 months |
| Expert's view on time away | No more than three days in a row away from the mother, and the current blocks did not exceed that | Week about meant too long away from each parent at these ages |
| Parents' communication | Not a deciding issue at the interim stage | Hostile, mistrustful and unable to solve problems together |
| Outcome | Equal time continued until trial | Children live with the mother; father has alternate weekends from Friday evening to Monday morning, two hours each Wednesday afternoon, one week of each term holidays and two weeks of the summer holidays |
Key: How long each block runs matters as much as the overall split. Three day blocks for a 3 year old survived; full weeks for children aged 4 and nearly 2, run by parents who could not communicate, did not.
If equal time is already in place for your young child:
- Keep a simple record of how the child copes with each changeover, with sleep and with settling. Evidence about your own child is worth more than general research.
- If you want things to change, put forward a specific alternative and explain why it is better. In Tanberg & Remmy, neither parent persuaded the judge that their proposal would improve matters.
- Weigh block length, not just the percentage. A shorter rotation can hold both parents close to a young child without long gaps.
- Communicate in writing, politely and about the child only. Equal time ended in Willis & Field mainly because communication was poor.
Scenario 2: You want more time, including overnights, with a baby or preschooler
Common Misconception: If I cannot get 50/50 now, I will be locked into a weekend parent schedule.
Legal Truth: Courts often make step up orders that build time up in stages. A parent who has not yet had much overnight time can be granted overnights gradually, with the final arrangement set to start at an age or a school term.
Whilst I accept that [X] is certainly ready for overnight time, the fact is that she has not spent a considerable period of overnight time with her father. Accordingly, overnights should clearly be introduced but I intend to make orders that introduce that time over a more generous timeframe than that suggested by the father or the independent children's lawyer, but certainly not nearly as conservative as that proposed by the mother.
The parents separated in May 2009, when their daughter was 4, and interim orders gave the father two afternoons and one day a week, with no overnight time. The mother then asked to relocate with the child from Sydney to Adelaide for a job. The father wanted the child to remain in Sydney and live with him on what was in substance equal time, while the independent children's lawyer proposed stepping up to equal time within a few weeks.
The judge found the conflict between the parents high and ongoing. He pointed to research showing that ongoing conflict between parents and substantially shared care each predicted poorer outcomes for children, and said he was unwilling to run that risk with the child's wellbeing. He added that the research was background only and not evidence.
Outcome: The court refused both the relocation and equal time, and instead increased the father's time in three stages, beginning with one overnight each weekend plus a Wednesday afternoon. From term 1 of 2010 he had alternate weekends from Friday to Monday. From term 3 of 2010 he had 4 nights a fortnight, made up of a three night weekend plus one Wednesday overnight in the other week. To reduce contact at changeovers, the parents were also ordered to keep a separate wardrobe for the child in each home.
Banning & Wylie sits at the other end of the range. There the father already spent 5 nights in every 14 with a boy aged 3 years and 10 months. The court rejected the family consultant's view that the parents could not cooperate. It added a Sunday night after the boy's fourth birthday and ordered week about to begin only from term 2 of his first school year, so that he could settle into school first.
| Comparison | Beadle [2009] | Banning & Wylie [2009] |
|---|---|---|
| Child's age | 4 | 3 years 10 months |
| Overnights before the hearing | None | 5 nights in every 14 |
| Conflict between the parents | High and ongoing | Court found the parents could cooperate and compromise |
| Final stage of the schedule | 4 nights a fortnight with the father | Week about |
| When the final stage starts | About 9 months after the orders | Term 2 of the child's first school year |
Key: Place the two cases side by side and it is the starting point and the level of conflict that set how far the court will go. Where the child was already staying overnight regularly and the parents could compromise, the court planned for equal time. Where overnights were new and conflict ran high, the court built up to 4 nights a fortnight and went no further.
If you are seeking more time with a baby or preschooler:
- Ask for a staged plan tied to dates or milestones, not merely a final percentage. Courts find it easier to increase time step by step.
- Build on what you already have. Regular, reliable time now is the best evidence that extra time will work.
- Show you can handle the practical details, returning the child by 8.00 am on a work day for instance. In Banning & Wylie, the father's family support answered the mother's concern about early returns.
- Keep conflict away from your child. In Beadle, the extent of the conflict was the main reason equal time was refused.
Scenario 3: Distance, starting school, shift work and safety
Common Misconception: If both parents are good parents, the court will divide time equally regardless of where they live or what work they do.
Legal Truth: The arrangement must also work in practice. Distance, the start of school, shift rosters and any safety risk can each limit what the court orders, even where the child loves both parents.
I agree with Judge Brewster's assessment that a court, such as this one, was unlikely to have made an order, of its own initiative, creating an equal time regime, for a child of around two years of age, whose parents communicated poorly and whose homes were separated by a significant distance.
The parents agreed on week about when their son was about 2, and he lived that way for more than three years. Their homes stood 93 km apart, roughly an hour's drive. Once he was 5 and due to start primary school, both parents accepted that week about could not go on, and each asked for him to live mainly with them.
The judge found both were good parents and that the boy had thrived. The mother handled his emotions better and possessed greater reflective capacity. The father's side offered close family, cousins included, and a lifestyle the boy enjoyed, and the family report writer noted the mother's own view that the boy was very close to his dad. The case, the judge said, was decided by micro-millimetres.
Outcome: Because of his inherent orientation towards his father, the boy was ordered to live with his father. The mother received alternate weekends, alternate Wednesday nights and half the school holidays. Her ability to support the transition, the judge noted, was one of the reasons the move could work.
Two further cases show how practical limits and safety reshape the schedule:
- Shift work. In Marchand & Mahony the father worked a rolling roster of two day shifts, two night shifts and four days off, and lived about 34 km away. Equal time would have forced frequent changes of household and routine on his 9 year old son, so it was refused. The court instead gave the father time in each four day break, with start and finish times fixed by where in the week the break fell. That child was older, but the same approach works for a younger child.
- Safety. In Euclid & Brantley a 5 year old had been living week about, and the mother accepted it was working well. The father admitted an alcohol problem, kept drinking during his time despite a court order forbidding it, and exposed the child to family violence. The court cut his time back to alternate weekends, an alternate Wednesday after school and week about in the summer holidays, and restrained him from drinking while caring for her. The mother also asked that his time be suspended whenever alcohol testing showed heavy drinking, but the court refused, because cutting the child off from her father was not justified on the evidence.
| Comparison | Meyer & Shipton (No. 2) [2013] | Marchand & Mahony [2017] | Euclid & Brantley [2023] |
|---|---|---|---|
| Child's age | 5, starting school | 9 | 5 |
| What limited equal time | 93 km between homes and the start of school | Rolling shift roster, 34 km, school and activities | Alcohol misuse and family violence |
| What the court ordered instead | Live with the father; mother has alternate weekends, alternate Wednesday nights and half the holidays | Time in each four day roster break, timed around school | Alternate weekends, alternate Wednesday afternoons and week about in the summer holidays |
| Outcome for the parent seeking more time | Father: primary care | Father: more time than alternate weekends, but not equal time | Father: time reduced from week about |
Key: The court asks whether the arrangement will truly work for the child week after week. Long distances, a new school and a changing roster are each reasons to pick a different pattern, and a safety risk can shrink time even where the child's bond with that parent is strong.
Before you put forward a schedule, work through these practical points:
- Measure the real travel time between both homes and the child's childcare or school, at the times the child would in fact be travelling.
- Plan for the start of school now. An arrangement that cannot hold up at school will be reopened later.
- If shift work is part of your life, place your roster before the court and shape the time around it instead of asking for a fixed weekly split.
- Deal honestly with any risk issue. Keeping to a no alcohol order, completing counselling and following the rules protects your time far better than denying the problem.
For more on related issues, read How Much Weight Do Courts Give a Child's Views in Australia? on how older children's wishes affect arrangements, and Family Report & Expert Witness Evidence in Parenting Cases on how expert opinions about a young child's needs are tested. Where drinking forms part of the dispute, see also Alcoholism and Child Custody: How Australian Courts Decide.
What should I do when planning a schedule for my young child?
When you plan a schedule for a young child, begin with the child's age rather than a percentage. The court will want to know how long your child can comfortably be away from each parent, how many changeovers they can manage and what will happen when school begins.
- Propose a staged plan. Courts often expand time gradually, adding overnights first and moving to a larger share at a set age or school term.
- Bring evidence about your child. General research and the outcomes of other families carry little weight. What counts is how your child sleeps, settles and copes with changeovers.
- Keep the conflict down. In several of these cases, high, ongoing conflict was the main reason equal time was refused or brought to an end.
- Deal with practical limits up front. Distance, school and work rosters can defeat an arrangement, so show the court how yours will operate.
- Put safety first. Any risk issue will shape the schedule ahead of everything else, so tackle it directly.
