Aboriginal Child Custody in Victoria: Cultural Rights and the Family Law Act

A Standalone Legal Obligation

In contested parenting proceedings, when the FCFCOA assesses the best interests of an Aboriginal or Torres Strait Islander child, it must apply an additional mandatory consideration that does not exist for other children. Section 60CC(3) of the Family Law Act 1975 requires the court to consider the child's right to enjoy their Aboriginal or Torres Strait Islander culture and to maintain a connection with their community, country, and language.

This is a statutory obligation in proceedings where the court is determining the child's best interests. In consent-order proceedings, Section 60CC(4) says the court may, but is not required to, have regard to all or any of the Section 60CC(2) or (3) matters.

What Section 60CC(3) Requires

The court must consider the child's right to enjoy their culture, including the right to enjoy that culture with other people who share it. This means the court looks at whether the proposed parenting arrangement supports or undermines the child's connection to Aboriginal community, Elders, kinship networks, and cultural practices.

Practical aspects the court considers include which parent (or other carer) is better positioned to facilitate the child's participation in cultural events, ceremonies, and community gatherings, whether the child has an existing connection to a specific community or Country and whether the proposed arrangement maintains that connection, the child's participation in language programs, cultural education, and identity-affirming activities, and the views of relevant Aboriginal community organisations about what arrangement best supports the child's cultural needs.

The Aboriginal Child Placement Principle

While the Aboriginal Child Placement Principle is most commonly associated with child protection matters (where the Victorian Department of Families, Fairness and Housing is involved), private parenting disputes are assessed under the Family Law Act's best-interests framework, including the Section 60CC(3) cultural-connection considerations.

In practice, the cultural-connection requirement means the court is cautious about arrangements that would sever or significantly reduce an Aboriginal child's connection to their community. A parenting arrangement that moves the child away from their community, or that places the child primarily with a non-Aboriginal parent who has no connection to the child's Aboriginal heritage, will be scrutinised for how it addresses the child's cultural needs.

Aboriginal Community Controlled Organisations

Victoria has a network of Aboriginal Community Controlled Organisations (ACCOs) that provide family support services, including Family Dispute Resolution, family violence services, and parenting support. These organisations are run by and for Aboriginal communities and understand the cultural context that mainstream services often miss.

Key ACCOs in Victoria include the Victorian Aboriginal Child Care Agency (VACCA), which provides family support, child protection advocacy, and cultural planning, the Victorian Aboriginal Legal Service (VALS), which provides legal representation in family law matters, and local Aboriginal cooperatives that offer community-specific support.

If you are an Aboriginal or Torres Strait Islander parent navigating a custody dispute, these organisations can provide culturally safe support that mainstream legal and mediation services may not be equipped to offer.

Cultural Plans in Parenting Arrangements

A cultural plan — sometimes called a cultural support plan — sets out how the child's connection to their Aboriginal or Torres Strait Islander culture will be maintained within the parenting arrangement. While not a statutory requirement in private parenting matters (unlike in child protection, where cultural plans are mandatory), including one in a parenting plan or consent order demonstrates to the court that the arrangement takes the child's cultural needs seriously.

A cultural plan might cover regular visits to the child's Country, participation in community events (NAIDOC Week, Sorry Day, local gatherings), contact with Elders and extended kinship networks, access to language programs, and arrangements for cultural activities during school holidays.

Non-Aboriginal Parents

If one parent is Aboriginal or Torres Strait Islander and the other is not, Section 60CC(3) still applies in full. The non-Aboriginal parent's willingness and capacity to support the child's cultural connection is assessed as part of the "parental capacity" factor. A non-Aboriginal parent who actively facilitates cultural connection — attending community events, supporting language learning, maintaining relationships with the child's Aboriginal family — demonstrates stronger parental capacity on this factor than one who is indifferent or resistant.

Navigating the Process

The standard parenting process applies — for a contested application, FDR with a Section 60I certificate is generally required unless an exemption applies; consent orders can be filed by agreement without a certificate. But the cultural dimension adds complexity that benefits from specialist support.

The Victoria Child Custody & Parenting Plan Guide covers the full parenting order process and can be used alongside culturally specific support from ACCOs and Aboriginal legal services.

See more Victoria guides →