What You Need to Know About Child Custody Laws in Australia
Before comparing how child custody laws operate across different Australian jurisdictions, it is important to note that the Family Law Act 1975 (Cth) governs parenting matters in every state and territory except Western Australia. WA instead operates under the Family Court Act 1997 (WA), although the underlying principles are very similar. Across all jurisdictions, the best interests of the child are the paramount consideration, consistent with Australia’s obligations under the United Nations Convention on the Rights of the Child.
A Parenting Order deals with one or more aspects of parental responsibility. Under section 64B(2) of the Family Law Act and equivalent provisions in the WA Act, these orders may include:
Under section 60CA, the Court must treat the best interests of the child as the paramount consideration. Section 60CC outlines the factors used to determine best interests, including child safety, the child’s views, their developmental and cultural needs, the capacity of each parent, family relationships, any history of family violence and other relevant circumstances. Western Australia applies an equivalent list of considerations through sections 66 and 66C of the Family Court Act (WA).
Parental responsibility is defined in section 61B of the Family Law Act as all duties, powers and authority parents have regarding their children. Section 61C confirms that each parent automatically has parental responsibility unless a Parenting Order states otherwise. Since May 2024, the law no longer includes a presumption of equal shared parental responsibility.
WA follows the same approach under section 61 of the Family Court Act (WA). Parental responsibility may be allocated solely, jointly or in a way tailored to the child’s needs and safety.
The term “custody” is no longer used in Australian family law. Instead, Orders address where a child lives and the time they spend with each parent.
Across NSW, QLD, the ACT and WA, courts consider the full range of best interest factors. Decisions involve assessing:
No formula applies. Each case is determined on its evidence and the child’s specific circumstances.
Family law practitioners support parents by:
Experienced family lawyers ensure that the child’s best interests remain central and that parents receive accurate, practical and supportive legal guidance.
Although the Family Law Act applies in NSW, QLD and the ACT, and WA applies its own statute, the principles are largely aligned. The main differences relate to the court structure and the interaction with local domestic violence or child protection systems. The following section summarises these differences clearly and concisely.
| Jurisdiction | Governing Legislation | Domestic Violence Framework | Child Protection Agency |
| NSW | Family Law Act 1975 (Cth) | Crimes (Domestic and Personal Violence) Act 2007 (NSW) | Department of Communities and Justice |
| QLD | Family Law Act 1975 (Cth) | Domestic and Family Violence Protection Act 2012 (Qld) | Department of Families, Seniors, Disability Services and Child Safety of Queensland |
| ACT | Family Law Act 1975 (Cth) | Family Violence Act 2016 (ACT) | Child and Youth Protection Services (CYPS) |
| WA | Family Court Act 1997 (WA) | Restraining Orders Act 1997 (WA) | Department of Communities – Child Protection and Family Support (CPFS) |
This comparison shows that while the substantive parenting laws are similar, the surrounding systems parents may encounter differ depending on the jurisdiction.
Across NSW, QLD, the ACT and WA, courts focus on the best interests of the child when determining Parenting Orders. These Orders cover where a child lives, the time they spend with each parent and the allocation of parental responsibility. While most jurisdictions apply the Family Law Act, WA uses its own legislation through a separate Family Court system. Local family violence laws, child protection involvement and practical regional factors may also influence outcomes.
Whether a parenting matter is amicable, complex or high conflict, early and reliable legal advice ensures that the child’s welfare and stability remain at the centre of decision making.
For jurisdiction-specific guidance on parenting arrangements and Parenting Orders, you can access tailored advice from experienced family lawyers in the following locations:
If you have any questions about Child Custody Laws, reach out to Stuart Robertson of our Family Law Team on 1300 676 823