Denied access to your child in Australia? Here’s what to do

It’s no secret that going through a separation or divorce can be difficult. But when your ex then stops you from spending time with your child in the process, it can be heartbreaking.

While being denied access to your child certainly isn’t the goal of divorce, sometimes one parent will attempt to do just that, particularly if the split isn’t amicable. They may also do it out of concern for their children. For example, a mother withholding a child from a father in Australia where the father is unstable or an addict is a scenario we’re often presented with.
These are tricky situations. But if you’ve been denied access to your child or you feel that denying access is the right way to go, there are steps you can take.

What does the law say about parental access?

First of all, let’s chat about what the law in Australia says about parental access. Previously, there was a presumption under the Family Law Act 1975 (Cth) of ‘equal shared parental responsibility’. This then led to a heavy focus on making sure that children spent equal time with each parent. However, the legislation has changed.
Now, rather than there being a presumption of equal responsibility and therefore time, the law now adopts a flexible ‘joint parental responsibility’ approach and focuses on what’s in the best interests of the child. This means the Court will consider what is appropriate and safe for the child and will lead to the best outcomes for them.
However, in situations where there are no concerns for the safety of the child or their wellbeing with each parent, then the Court generally prefers that the child be able to spend quality time with each parent. And withholding a child against agreements or Court orders is certainly illegal.

What are the most common reasons for a parent to withhold a child from the other parent?

Despite the law, one parent does sometimes deny access to the other parent’s children. There are a lot of reasons why they might do this. But some of the most common scenarios are:

• There are safety concerns. One parent might withhold a child if they have a genuine concern for the child’s safety when with the other parent.
• A parent has a new relationship. If one parent has a new relationship or a new living situation with different influences, the other parent might withhold access. This could be out of genuine concerns about the influence of the new people in the ex’s life on the children.
• There are hard feelings. When a separation isn’t amicable, emotions can run high. In these situations, one parent might try to use access to children as leverage.
• Communication has broken down. Poor communication and misunderstandings can lead to one parent feeling justified in keeping the child away. For example, maybe you had a set time for your ex to come by to pick up the child, and they misunderstood and didn’t come. You might then feel justified in not bringing your child next time.

What are acceptable reasons for one parent to deny access to a child?

In general, both parents need to abide by any parenting agreements, custody arrangements, or Court orders in place. And if they deny access to the children against those agreements, they will be breaking the law.
However, there are some situations where the denial might be considered necessary for the child’s safety and wellbeing. These could be:

• History of violence towards the child or the other parent
• Drug or alcohol abuse
• Extreme mental health issues
• Taking the child into unsafe situations
• Criminal activity

In each of these scenarios, the primary concern is for the child’s safety and wellbeing. A Court might deny access by taking into account all the factors and deciding that the parent doesn’t have the ability to provide a safe and nurturing environment.

Request a call back from our compassionate, friendly team via the form below or call us directly. We’re here to assist you and ensure you receive the support you deserve.

What to do if you are concerned but still want the other parent to have access

If you have concerns but you want to support your ex to maintain access to your children, there are some things you can do, like:

• Be present during visits so that you can supervise.
• Arrange for someone you trust to be present during visits.
• Make sure that all visits happen in a safe, neutral environment.
• Maintain open communication and address any concerns right away.
• Seek professional advice from a counsellor or family lawyer who can give you expert guidance to get the best results for your family.

How to resolve access issues outside of Court

If you or your ex are denying access to a child in Australia, for whatever reason, you may need to get help to navigate the situation. Family law requires that parents first take ‘genuine steps’ to resolve any dispute outside of Court before starting any proceedings in the Court system.
In general, this means talking to your ex as a first step. A counsellor might be able to help you resolve any issues that are keeping you from agreeing as well.
If you can’t reach an agreement together, then mediation might be a great next step. A mediator can help you resolve disputes and create a parenting plan that you both can agree on.

What if you can’t agree on parenting arrangements outside of Court?

If all your out-of-court resolutions fail, then you might need to start legal proceedings in Court. When a Court is looking at how much time a child should be spending with each parent, they’ll take into account the law and the unique situations of your family. They’ll always do this in a way that is focused on the best interests of the child.
If you do have to go to Court, it’s a great idea to get a family lawyer on your side. Experts can help you understand your rights and obligations and help you take the right steps to get the best outcomes for your family.
Once the Court has had a chance to review all the issues, they’ll issue parenting orders to formalise the arrangements.

What happens if parenting arrangements are breached?

There can be serious consequences if you or your ex breach your parenting orders or arrangements. These could include penalties or fines, or it might even lead to changes to the parenting order in favour of the parent who’s not in breach.
If you think your ex is in breach of your parenting orders, you can file a contravention application. Before doing this, it’s always best to get some expert legal advice because the law of contraventions can be complicated. You must also attend family dispute resolution before you can file in the Court. Then you’ll have to be able to prove that the other parent breached the order without a reasonable excuse.

We can help you navigate the complexity of parental access!

If your children are being kept from you by another parent, or you think that it would be in the best interests of your child to deny access to another parent, get in touch with our team. We can help you navigate the law and understand your legal rights and options.
There are lots of ways to resolve these issues, in and out of Court, and we can help you find the right pathway for your family.

Request a call back from our compassionate, friendly team via the form below or call us directly. We’re here to assist you and ensure you receive the support you deserve.