When parents divorce in Australia, custody is granted to the parent—or both parents—who can best support the child’s safety, stability, and long-term wellbeing. Courts do not favour mothers or fathers; instead, custody is determined by applying the “best interests of the child” test under the Family Law Act 1975. This means the court examines safety risks, each parent’s caregiving history, emotional bonds, and the child’s daily needs before deciding where the child will live and how major decisions will be made.

What Is Child Custody in an Australian Divorce?

Child custody in an Australian divorce refers to the legal and practical arrangements that determine who makes major decisions for the child and where the child lives after separation. Although the term “custody” is commonly used, Australian law defines these concepts through two components:

• Parental responsibility — who has authority to make long-term decisions about education, healthcare, religion, and welfare.
• Living arrangements — where the child primarily resides and how time is shared between parents.

Under the Family Law Act 1975, custody is not automatically granted to one parent. Instead, the Court assesses what arrangement will best protect the child’s safety, maintain stability, and support meaningful relationships, provided these relationships do not expose the child to harm.

Who Gets Custody of a Child in Divorce?

A court does not automatically award custody to either parent in an Australian divorce. Instead, the parent who gets custody — meaning primary care and/or major decision-making responsibility — is determined by what arrangement is in the child’s best interests under section 60CC of the Family Law Act 1975.

The Court evaluates safety, stability, and each parent’s ability to meet the child’s emotional and developmental needs. If both parents can provide a safe, supportive environment, custody is often shared through a combination of parental responsibility and time arrangements.

However, custody may favour one parent when evidence shows:

• A risk of family violence, abuse, or neglect
• One parent has been the child’s primary carer
• A parent cannot meet daily or long-term needs consistently
• High conflict or poor cooperation makes shared responsibility unworkable
• The child’s routine, schooling, and wellbeing are better preserved with one parent

In short, no parent has a legal advantage in divorce. Custody goes to the parent — or both parents jointly — only if the arrangement promotes the child’s safety, stability, and long-term wellbeing.

Types of Custody Arrangements in a Divorce

In Australian divorce matters, custody arrangements generally fall into several legally recognised categories. These reflect how parental responsibility and time with each parent are allocated:

• Equal Shared Parental Responsibility: Both parents make major long-term decisions together, including education, health care, and religious upbringing. This does not automatically mean equal time.
• Sole Parental Responsibility: One parent has exclusive authority to make major decisions because shared responsibility would expose the child to risk or create instability.
• Equal Time Arrangements: The child spends roughly 50/50 time with each parent if it is safe, practical, and in the child’s best interests.
• Substantial and Significant Time: The child lives primarily with one parent but spends frequent, meaningful time with the other — including weekends, weekdays, holidays, and special events.
• Primary Residence With One Parent: The child lives mostly with one parent for stability, while the other parent has scheduled time or visitation.
• Supervised or Restricted Time: Used when safety concerns exist, ensuring the child can only spend time with a parent under monitored conditions.
• No Time: Applied only in exceptional cases involving serious risk.

Factors That Influence Custody Outcomes

Custody outcomes in an Australian divorce are determined by the “best interests of the child” test under section 60CC of the Family Law Act. Courts assess a wide range of statutory and practical factors, including:

• The child’s safety: Protection from family violence, abuse, neglect, or psychological harm is the paramount consideration.
• The benefit of the child having a meaningful relationship with both parents: This is prioritised only where it does not compromise safety or stability.
• The child’s views: Considered in light of the child’s age, maturity, and ability to express independent preferences.
• Each parent’s capacity to meet the child’s needs: Includes emotional support, daily care, schooling continuity, and general welfare.
• The history of caregiving: Courts examine who has been the primary caregiver and the level of involvement each parent has demonstrated before separation.
• The practicality of proposed arrangements: Factors such as distance between homes, parents’ work schedules, school locations, and transportation.
• The likely impact of changes to the child’s living situation: Courts aim to minimise unnecessary disruption to education, friendships, community ties, and routine.
• Willingness to facilitate the child’s relationship with the other parent: Judges consider whether a parent encourages — or obstructs — communication, contact, and cooperation.
• Cultural and lifestyle considerations: Particularly important for Aboriginal and Torres Strait Islander children, where cultural connection and identity are protected.
• Evidence of parental conflict or inability to cooperate: High-conflict dynamics may influence decision-making responsibilities and time allocation.

How Courts Determine Custody During Divorce?

Courts determine custody during divorce in Australia by applying the best interests of the child test outlined in section 60CC of the Family Law Act 1975 (Cth). This legal standard governs every parenting decision and requires judges to assess which arrangement ensures the child’s safety, stability, and long-term development.

In practice, the Court examines all relevant evidence to decide where the child should live and how parental responsibility should be allocated. Judges do not prioritise either parent based on gender, income, or who initiated the divorce — the assessment is entirely child-centred and evidence-driven.

When determining custody, the Court evaluates:

• the need to protect the child from harm, including exposure to family violence or neglect
• the value of a meaningful relationship with both parents where safe
• each parent’s caregiving capacity, emotional availability, and ability to meet daily needs
• the child’s views, depending on maturity and circumstances
• the practical feasibility of proposed living arrangements
• the likely effect of changes to routine, schooling, community ties, and stability
• each parent’s willingness to support the child’s relationship with the other parent

After reviewing affidavits, expert reports, Family Reports, and any submissions from an Independent Children’s Lawyer (if appointed), the Court issues Parenting Orders that set out living arrangements and parental responsibility. These orders reflect what the evidence shows will best promote the child’s welfare — not what either parent prefers.

Sole Custody vs Joint Custody: Key Legal Distinctions

Before deciding who receives custody after a divorce, it is essential to understand the legal difference between sole custody and joint custody. These terms describe how parental responsibility and day-to-day care are allocated, and they directly influence decision-making authority, living arrangements, and the level of cooperation required between parents. A clear distinction between the two helps clarify what the Court may order and what each outcome means for the child’s long-term stability.

Sole Parental Responsibility

Granted when:

• shared responsibility would expose the child to harm
• one parent is unable or unwilling to make collaborative decisions
• risk factors or entrenched conflict make joint decision-making unsafe

Joint Parental Responsibility

Used where:

• cooperation is possible
• both parents have been actively involved
• risk factors are minimal
• logistical arrangements support shared involvement

The court selects the arrangement most compatible with the child’s long-term welfare.

Do Fathers Get Custody in Divorce?

Yes. Fathers can get custody in an Australian divorce because the law is gender-neutral. The Family Law Act 1975 (Cth) does not give automatic preference to mothers or fathers. Instead, courts decide custody based solely on what arrangement best serves the child’s safety, stability, and developmental needs.

A father may receive primary residence, shared care, or sole parental responsibility if the evidence shows that this arrangement is in the child’s best interests. Courts evaluate factors such as the father's historical involvement in caregiving, emotional bonds with the child, consistency of parenting, capacity to meet daily needs, and willingness to support the child’s relationship with the other parent. In cases involving risk from the other parent — such as family violence, neglect, substance misuse, or instability — fathers may also be granted sole custody.

In short, fathers do get custody in Australia when the evidence demonstrates that their care provides the safest and most beneficial environment for the child.

How Custody Works in High-Conflict or High-Risk Divorces?

Custody in high-conflict or high-risk divorces is determined by prioritising the child’s safety above all other considerations. When conflict, violence, substance misuse, coercive control, or instability is present, the court moves away from equal-time arrangements and focuses on protective, structured, and supervised parenting models.

In these cases, the Court examines evidence such as police reports, medical records, risk assessments, affidavits, and expert evaluations. If there is an unacceptable risk of harm, the Court may order supervised time, restrict communication, require drug or alcohol testing, or temporarily suspend contact. Parental responsibility may also shift from shared to sole responsibility where joint decision-making is unsafe or unworkable.

Ultimately, custody in high-risk or high-conflict divorces operates through strict safeguards designed to remove immediate danger, stabilise the child’s routine, and ensure that any contact with a parent occurs only in conditions that protect the child’s physical and psychological wellbeing.

Can Custody Orders Change After Divorce?

Yes. Custody orders can change if a significant shift occurs, such as new risk, relocation, or ongoing breaches of orders. A parent must satisfy the Rice & Asplund threshold to justify reopening the case. Parents navigating these changes often seek advice to find a family lawyer who understands post-order variations.

A variation may be considered when issues such as family violence, neglect, relocation, persistent conflict, breaches of orders, or major shifts in a parent’s capacity arise. Under the Rice & Asplund principle, the parent seeking the change must prove that the new circumstances are substantial enough to justify reopening the case.

If the threshold is met, the Court reassesses the child’s needs, stability, safety, and relationships before deciding whether a new order better promotes the child’s long-term welfare.

FAQs: Who Gets Custody of a Child in Divorce?

Before reviewing the questions, it helps to clarify that custody outcomes depend on evidence, statutory factors, and professional assessments—not assumptions about gender or financial status.

How is custody determined in a divorce?

Through the best-interests test in s 60CC, guided by risk, evidence, stability, and expert input.

What factors influence custody decisions?

Safety, developmental needs, parental capacity, child’s views, and practicality.

Can a father get full custody?

Yes, if evidence shows it protects the child’s safety and stability.

How long do custody orders last?

Until age 18 unless varied under the Rice & Asplund principle.

Can custody arrangements change over time?

Yes, if substantial changes justify revisiting the matter.

Is legal representation required?

Not mandatory, but strongly recommended due to legal complexity and evidentiary standards.

Conclusion

In Australian divorce proceedings, who gets custody of a child depends entirely on what arrangement safeguards the child’s wellbeing under the Family Law Act 1975 (Cth). Courts apply a structured analysis, weighing safety, developmental needs, evidence, and expert assessments to ensure the final outcome protects the child above all else.

Parents facing custody decisions benefit greatly from early legal guidance. Platforms such as LegalFinda can assist parents in finding a good family lawyer with the expertise needed to prepare strong evidence, navigate court processes, and secure a child-focused outcome.