Family Law Amendment Act 2023: What Changed for Custody in May 2024

The Presumption That No Longer Exists

For nearly two decades, Australian family courts operated under a presumption of "equal shared parental responsibility" — a legal starting point that required judges to consider equal time or substantial and significant time with each parent before looking at anything else. Parents walked into mediation and courtrooms assuming 50/50 was the default, and lawyers structured their arguments around it.

That presumption was repealed when the Family Law Amendment Act 2023 took effect on 6 May 2024.

The old framework created a rigid two-step hierarchy. First, the court applied the presumption of equal shared parental responsibility (which governed major long-term decisions like education, religion, and major medical treatment). Then, because that presumption was active, the court was forced to consider equal time as a starting point for where the child lived. Many parents — and some practitioners — conflated the two concepts, treating "equal shared parental responsibility" as a right to equal living time.

What the 2024 Amendments Actually Changed

The May 2024 reforms restructured Section 60CC of the Family Law Act 1975 and removed several provisions that had shaped custody outcomes since 2006.

Equal shared parental responsibility presumption — gone. Courts no longer start with any assumption about how decision-making should be divided. Each parent's capacity and willingness to make decisions in the child's interest is assessed individually.

The mandatory equal-time consideration — gone. Under the old law, if equal shared parental responsibility applied, the court had to consider equal time first, then substantial and significant time. That two-step inquiry no longer exists. Arrangements are tailored from scratch based on the child's circumstances.

Simplified best interests factors. The old Section 60CC contained a two-tier hierarchy of "primary" and "additional" considerations — 13 factors divided between those categories. The 2024 amendments replaced that with a single, flat list of six non-hierarchical factors:

1. Safety — protection from family violence, abuse, and neglect
2. The child's views — weighted by age, maturity, and understanding
3. Developmental, psychological, emotional, and cultural needs
4. Each parent's capacity to provide for those needs
5. The benefit of maintaining significant relationships (parents, grandparents, siblings) — provided it is safe
6. Any other relevant fact or circumstance

Safety is the primary focus, but the factors are not arranged in a prescribed hierarchy. Courts are no longer required to consider them in a prescribed order.

What Stayed the Same

Not everything changed. Parenting plans, consent orders, and Family Dispute Resolution remain available under the post-May 2024 framework. The Section 60I certificate requirement before a contested parenting application remains intact, and the same exemptions apply (including consent applications, responses, family violence, child abuse, and urgency).

The child support formula administered by Services Australia was not affected by the amendments. Care percentage bands, overnight stay calculations, and the eight-step assessment formula are unchanged.

Aboriginal and Torres Strait Islander children retain the additional standalone consideration under Section 60CC(3), requiring courts to support connection to community, culture, country, and language.

What This Means for Your Parenting Plan

If you are drafting a parenting plan or preparing for mediation in Victoria, the practical impact is significant. You can no longer walk into FDR and claim 50/50 as a legal starting point. Instead, both parents need to demonstrate why their proposed arrangement serves the child's individual needs — not just argue from a presumed entitlement.

Existing consent orders made before May 2024 remain enforceable. But if you are seeking to vary those orders, the court will apply the new framework, not the old one.

For a step-by-step guide to drafting a parenting plan that aligns with the current law — including worksheets, schedule templates, and a consent order filing checklist — see the Victoria Child Custody & Parenting Plan Guide.

See more Victoria guides →