The Custody Mistakes Nobody Takes Seriously Until They Lose Their Case

‘It’s Just Venting’ (Badmouthing the Other Parent)

Telling your sister what you think of your ex is private. Telling your children can be used as evidence.

When one parent’s behaviour was found to cause psychological harm, Australian family courts have completely reversed custody arrangements. In Ralton and Ralton [2016], the court transferred the children from the mother to the father after finding that her ongoing attempts to alienate them created a risk of continuing psychological harm. The mother tried to appeal, but it was dismissed.

The term ‘parental alienation’ doesn’t appear in the Family Law Act. But the behaviours it describes are captured directly by the new section 60CC(2)(a), which requires the court to assess safety from psychological harm, and section 60CC(2)(d), which assesses each parent’s capacity to provide for the child’s psychological and emotional needs.

The 2024 amendments also broadened the definition of family violence under section 4AB to explicitly include coercive and controlling behaviours. As such, a sustained pattern of badmouthing can fall within that definition.

‘It’s Not Like Criminal Court’ (Ignoring a Court Order)

Family court orders carry the same legal weight as any other court order in Australia. Ignoring one can be deemed as contempt.

Section 112AP of the Family Law Act gives the court power to impose imprisonment for contempt. There is no statutory maximum term specified in the section, which gives judges significant discretion. In 2024, a man received a 12-month prison sentence for failing to provide financial information in family law proceedings. While the Full Court later set it aside, calling his treatment a ‘gross miscarriage of justice,’ the fact that the sentence was imposed at all illustrates the court’s willingness to use its full powers.

The penalties can quickly escalate: bonds, compensation for missed parenting time, community service, fines, and imprisonment. The Federal Circuit and Family Court established a dedicated National Contravention List in September 2021 specifically to handle the volume of breach applications. Why was this needed? Simply because the problem has gotten that big.

‘My Social Media Is Personal’ (Posting About the Case)

Here are two things most parents don’t know about social media and family court.

First, around 82% of social media evidence is accepted when raised in Australian family court proceedings. Your Facebook posts, Instagram stories and text messages are not private in a custody dispute. Courts have used social media to disprove financial hardship claims, document parenting failures, and establish patterns of conflict.

Second, since May 2024, publishing any information that identifies parties, witnesses, or children in family law proceedings is a criminal offence under Part XIVB of the Family Law Act. The legislation explicitly includes ‘communications using a social media service.’ The maximum penalty is 12 months’ imprisonment.

That frustrated post about your custody hearing could be both evidence against you and a criminal offence at the same time. For this reason, the Federal Circuit and Family Court have published specific guidance warning parties about the risks of posting about their case online.

‘I’m Protecting My Kids’ (Withholding Contact)

Keeping your children away from the other parent without a court order or genuine safety concern is one of the most damaging things you can do to your case.

The Family Law Act provides a defence of ‘reasonable excuse’ under section 70NAE, but only where the person believed on reasonable grounds that the action was necessary to protect the health or safety of an individual, and the non-compliance lasted no longer than necessary.

‘Evening the score’ or simple ‘tit-for-tat” is not a reasonable excuse. This is made explicit. In one case, a mother withheld a child from the father on the basis that he had previously withheld the child. The court rejected the argument entirely.

The consequences are graded based on severity, but can include: making-up time for the other parent, costs orders, bonds, community service, fines, or imprisonment for up to 12 months. AIFS research found that more than 25% of contravention cases involved litigation extending over three to four years. Another 33% extended over five to nine years.

What starts as an attempt to ‘protect your kids’ can become the single issue that defines years of legal conflict.

‘My Love Life Is My Business’ (Introducing a New Partner Too Early)

There is no legally mandated waiting period for introducing a new partner to your children. But the court’s assessment is more nuanced than most parents expect.

Under section 60CC(2)(d), the court evaluates each parent’s capacity to provide for the child’s developmental, psychological and emotional needs. Introducing a new partner before a child has had time to process the separation raises serious questions.

Research from family relationship services shows that introducing a new partner too soon can make things harder for children. It can deepen their sense of loss, add stress during an already unsettled time, and make it more difficult for them to adjust. The court also looks closely at the new partner’s background, including any criminal history, substance abuse issues, and whether the overall living situation is stable.

If the other parent raises concerns and applies for a variation of parenting orders, these factors will be assessed directly. Basically, what felt very much like a personal decision can suddenly become evidence of your abilities as a caregiver.

What to Do If You Have Already Made One of These Mistakes

The common thread across all five is the same: the court is watching how you parent, not just what you promise. Every text message, every changeover, every social media post is potential evidence.

If you recognise yourself in any of the scenarios above, that’s okay. But it does mean taking action now, before the other parent raises it in court.

Immediate steps

• Stop the behaviour. If you have been badmouthing, posting on social media, or withholding contact, stop immediately. The court assesses patterns of behaviour over time. Changing course now is better than continuing and hoping it goes unnoticed.
• Delete nothing. Deleting social media posts after the fact can look like you are trying to hide evidence. If a post exists, it has likely already been screenshotted. Leave it and get legal advice about how to address it.
• Document everything going forward. Start keeping a clear, factual record of changeovers, communication, and any incidents. Use a co-parenting app if possible. Courts value evidence, and the parent with better records is in a stronger position.
• Get advice before making your next move. Whether it is responding to the other parent, varying an arrangement, or introducing a new partner, speak to a family lawyer first for guidance.

Questions to ask yourself

• Have you said anything about the other parent in front of your children that you would not want read out in court?
• Have you posted anything about your custody situation on social media?
• Have you been late for changeovers more than once or twice?
• Have you kept your children from seeing the other parent without a court order or a genuine safety reason?
• Have you discussed what your children should say to a counsellor, family report writer, or the other parent?

If any of these apply, a free chat with a family lawyer can help you understand your position and take the right steps before it becomes a bigger issue.

The Real Test

The parents who do well in custody disputes aren’t the ones willing to fight the ‘hardest’. They are the ones who demonstrate, through their actions, that they can put their children first even when the other parent makes it difficult.

That is what the court is looking for, and it’s a winning formula.

Facing a Custody Dispute?

Whether you are preparing for a parenting matter, responding to a contravention application, or trying to understand your rights after separation, getting legal advice early on can make a real difference to proceedings.

Kingsford Lawyers’ family law team works with clients across Australia on custody disputes, 养育令, and family court proceedings. Contact us online or call 1300 244 342 进行保密、免责交谈.