What are the new rules for child custody and how do they affect you?

Recent changes to child custody rules in Australia have brought significant adjustments to how family courts handle parenting matters. Whether you're a parent going through separation, a carer, or a professional working with families, these updates will shape how custody decisions are made. Stewart Family Lawyers Brisbane has observed these changes closely, noting their impact on families across Australia.

Core changes you need to know

The updated child custody framework introduces several key changes to Australian family law. The primary consideration is now firmly focused on protecting children from harm, with courts required to prioritise safety above all other factors. The terminology has shifted away from "custody" and "access" to focus on "parental responsibility" and "time spent" with each parent.

Additionally, there's now a more structured approach to how children's views are incorporated into decision-making, with age-appropriate mechanisms for gathering this input.

Which laws and court directions were updated

These changes stem from amendments to the Family Law Act, alongside updated practice notes issued by the Family Court of Australia and Federal Circuit Court. Each state and territory has also released supplementary guidance for local practitioners and services, creating a more cohesive national approach to child custody matters.

Who the changes apply to and effective dates

The new rules apply to all parenting applications filed after the implementation date, as well as pending cases that haven't yet had substantive hearings. Cases currently under appeal will generally be assessed using the legal framework that was in place when the original decision was made, though courts have some discretion in applying the new protective elements.

How courts decide parenting matters under the updated framework

Best interests of the child: primary and additional factors

Under the revised framework, courts must balance several factors when determining a child's best interests. The primary considerations are the child's safety and their meaningful relationship with both parents. However, safety now explicitly takes precedence when these factors conflict.

Additional considerations include practical difficulty of arrangements, parental capacity to provide for needs, cultural connections for Aboriginal and Torres Strait Islander children, and the impact of change on the child.

Family violence, child protection and safety assessments

The updated rules include more robust mechanisms for addressing family violence allegations. Courts now have clearer guidance on risk assessment, with dedicated family violence experts often brought in to evaluate claims. Child protection history now receives greater scrutiny, with improved information sharing between family courts and state child protection agencies.

Children's views and how they are taken into account

Children's perspectives now carry more weight, with courts considering both the child's expressed wishes and their developmental capacity. Rather than setting arbitrary age thresholds, the new approach focuses on maturity and understanding. Independent Children's Lawyers and family consultants use specialised techniques to gather children's views while minimising stress.

"The voice of the child has become increasingly important in family law proceedings. We're seeing courts develop more child-sensitive methods for understanding what matters to children while protecting them from adult conflicts." - Stewart Family Law

Evidence the court expects to see

Courts now expect more comprehensive evidence packages, including parenting capacity assessments, family reports from court consultants, and records from schools, healthcare providers, and any relevant therapy. Digital evidence such as text messages and emails often feature prominently in cases involving communication issues or allegations of inappropriate behaviour.

Parental responsibility, living arrangements and decision-making

Shared parental responsibility vs decision-making responsibility

The updated framework distinguishes between shared parental responsibility (for major long-term decisions) and day-to-day decision-making. Courts can now more easily allocate specific decision domains (education, health, religion) to different parents based on their demonstrated capacity and involvement in these areas.

Arrangements for living and time with each parent

The presumption of equal shared parental responsibility has been refined, with courts focusing more on what arrangements best serve the child's needs rather than starting with a 50/50 presumption. Orders now commonly specify gradual adjustment periods for significant changes in living arrangements, allowing children to adapt at an appropriate pace.

Special provisions for high-risk situations

The new rules provide clearer guidance for cases involving safety concerns, with more detailed options for supervised contact, monitored exchanges, and technology-assisted communication. Courts have expanded authority to order therapeutic interventions as preconditions for increasing parenting time in higher-risk situations.

Family dispute resolution and pre-court steps

When mediation or family dispute resolution is required

Family dispute resolution remains mandatory before court applications in most cases, but the exemptions for family violence and urgent matters have been clarified. The new rules better recognise power imbalances that might make mediation inappropriate, with more nuanced screening processes to identify these situations.

Preparing for mediation: documents and goals

Parties attending mediation are now expected to bring specific documentation, including proposed parenting schedules, financial information relevant to the child's needs, and any relevant reports or assessments. Setting realistic, child-focused goals for mediation has become a key part of pre-mediation preparation.

Alternatives to court: consent orders and parenting plans

The revised framework encourages greater use of formalised parenting plans and consent orders, with new templates and resources available to help parents create workable arrangements. Courts now apply more scrutiny to consent orders to verify they genuinely serve the child's best interests, particularly in cases with previous safety concerns.

Practical steps for parents and carers after the change

If you're affected by these changes, consider taking these practical steps:

• Review any existing parenting orders or agreements to determine if they align with the new framework
• Maintain detailed records of significant events, communications, and child-related matters
• Consider consulting a family law specialist to understand how the changes specifically affect your situation
• Focus on consistent routines and open, age-appropriate communication with children during any transition
• Explore family support services that can help children adjust to changing family circumstances

 

Published 11/28/25