Aboriginal and Torres Strait Islander Child Custody in Queensland

The Standalone Cultural Consideration

When the Federal Circuit and Family Court makes parenting orders involving an Aboriginal or Torres Strait Islander child, it is legally required to apply a standalone cultural consideration that does not apply to other cases. Under Section 60CC(3) of the Family Law Act 1975, the court must specifically assess what arrangements would best support the child's right to enjoy and connect with their Aboriginal or Torres Strait Islander culture.

This is not a secondary factor or a box-ticking exercise. The May 2024 reforms to the best interests framework elevated cultural connection alongside the six core considerations in Section 60CC(2), making it a mandatory part of the court's analysis whenever an Aboriginal or Torres Strait Islander child is involved.

The court assesses cultural connection across several dimensions: the child's relationship with their community and extended kinship networks, their connection to traditional country, their participation in cultural practices and ceremonies, opportunities for language preservation, and the practical commitment of each parent or carer to facilitate ongoing cultural engagement.

What This Means in Practice

For separating parents of an Aboriginal or Torres Strait Islander child, the cultural consideration shapes parenting arrangements in concrete ways:

Parenting time structures. The court considers whether proposed custody schedules allow the child to maintain meaningful connection with their community. If one parent lives on or near traditional country while the other lives in a metropolitan area, the court may structure longer block visits during school holidays to ensure the child spends sustained time in their community rather than brief, disconnected visits.

Extended family and kinship. Aboriginal and Torres Strait Islander family structures extend well beyond the nuclear family. Grandparents, aunties, uncles, and other kin often play active caregiving roles. The court can — and frequently does — consider the child's relationships with these extended family members when designing parenting arrangements. A grandparent or kinship carer who has been a significant presence in the child's life may be entitled to seek parenting orders in their own right.

Cultural activities and ceremonies. Parenting plans and court orders can include specific provisions requiring both parents to facilitate the child's attendance at cultural events, ceremonies, NAIDOC Week activities, and community gatherings. These provisions override the regular schedule when necessary — similar to how holiday schedules override term-time arrangements.

Decision-making about cultural upbringing. Under parental responsibility arrangements, cultural upbringing is classified as a major long-term issue. If one parent is Aboriginal or Torres Strait Islander and the other is not, the court may consider whether joint decision-making about cultural matters is workable, or whether the Indigenous parent should have sole decision-making authority on cultural issues specifically.

Kinship Care in Queensland

Kinship care sits at the intersection of federal family law and Queensland's state child protection system. In parenting proceedings, the court considers an Aboriginal or Torres Strait Islander child's relationships with extended kinship networks as part of the best-interests assessment. Queensland child protection agencies may also be involved in assessing care and safety.

Kinship care can arise through:

• Informal family arrangements where grandparents or other relatives take on primary care during a parent's incapacity, substance abuse crisis, or incarceration
• Formal kinship care arranged through the Department of Child Safety, where a relative becomes an approved carer
• Court-ordered arrangements where the Federal Circuit and Family Court makes parenting orders in favour of a kinship carer rather than (or in addition to) a biological parent

If you are a kinship carer who wants to formalise your arrangement legally, you can apply for parenting orders through the family court in the same way a biological parent would. You can seek orders for the child to live with you, for you to have decision-making authority, and for the parents to have structured contact visits. An Independent Children's Lawyer is often appointed in kinship care cases to provide the court with an independent assessment.

Culturally Appropriate Dispute Resolution

Before matters reach court, parents can use standard family dispute resolution through an accredited provider. Ask the provider or ATSILS whether a culturally appropriate process involving extended family, Elders, or community members is available for your circumstances.

Any agreement reached can be documented as a parenting plan or used as the basis for a Consent Orders application.

The Queensland Aboriginal and Torres Strait Islander Legal Service (ATSILS) provides free legal advice and representation for Indigenous parents in family law matters. They can help navigate both the cultural considerations and the standard procedural requirements.

Evidence the Court Looks For

If your case involves the Section 60CC(3) cultural consideration, the court will want to see concrete evidence of the child's cultural connection and each parent's capacity to maintain it. This might include:

• Evidence of the child's participation in community events, language programs, or cultural activities
• Statements from Elders or community members about the child's connection to their community
• Details of extended family relationships and kinship networks the child would lose access to under proposed arrangements
• Evidence of each parent's practical efforts to facilitate cultural connection — enrolment in language classes, attendance at community events, maintaining relationships with kinship carers
• Reports from the Department of Child Safety if they have been involved with the family

Documenting Cultural Provisions in Your Parenting Plan

Whether you are drafting a parenting plan or preparing for court proceedings, cultural provisions should be specific rather than aspirational. "Both parents will support the child's cultural connection" is too vague to be meaningful. Specific clauses might address which community events the child will attend, how travel to traditional country will be funded and scheduled, which family members the child will maintain regular contact with, and how cultural knowledge will be passed on in each household.

The Queensland Child Custody & Parenting Plan Guide includes clause templates that can be adapted for families where cultural connection is a central consideration — covering how to structure schedules around community obligations, document kinship relationships, and draft decision-making provisions that protect the child's cultural rights.

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