You cannot withhold a child from their father unless there are orders in place determining otherwise which suggest that the child’s contact with the father is not in the best interests of the child.
These orders would be along the lines of family violence or protection orders.
You would need to demonstrate to the courts that the father poses a serious risk to the child’s development and general wellbeing.
Invalid reasons for denying access or withholding a child from their Father
In Australia, you cannot simply deny access to your child’s father for frivolous reasons, for example, even if that parent is not paying enough child support.
You can’t deny access to the father if you simply don’t like his new girlfriend or partner or if he has proved unreliable in the past.
Non or late payment of child support is not a valid excuse under Australian family law to deny access.
Access to children is based upon the harm minimization principle and what is in the best interests of the child.
If the father is clearly behaving toward the child in a way that is likely to cause serious psychological or physical harm and this can be proved to the courts, then you can apply to have access to the child reduced or denied, depending upon the level of potential harm to the child.
Before you embark on any course of action, you need to be armed with all the facts and then get the best legal advice you can find.
When should you genuinely withhold a child from their Father?
If it is clear that the father has serious psychological issues and/or potential drug and/or alcohol addiction this could prove harmful to your child’s development.
In the interests of a harmonious divorce and peaceful co-parenting, even if the father of your child has drug or alcohol addictions this doesn’t necessarily make them a bad person or a bad parent.
If there is a potential that you could help the father address those problems, it is in the best interests of the child to have both parents present in their lives.
The biggest problem with family law is that it forces parents to engage in an adversarial system rather than one where divorced parents work to cooperate together to raise their children or find creative ways to co-parent.
If the father of your child has issues with addiction but they are semi-serious, you can negotiate with that party and see if they can agree to not use that substance in front of your child or you can engage the more difficult route of getting court orders stipulating that.
Obviously, if the father is seriously unstable and their addiction problems are out of control, then you have to consider looking at protection orders but only if that parent is demonstrably violent or damaging to the child.
In my earlier article, the example of the celebrity divorce was raised including the example of Ben Affleck and Jennifer Garner co-parenting peacefully three children and where the children’s mother did everything she could to help the father work to overcome his addiction to alcohol and be present in their children’s lives.
This is what successful and harmonious co-parenting looks like and it is what you should be aiming for, in the best interests of your child.
What the courts will likely do if I withhold my child?
If the courts find that the father is a risk to the child, they may order supervised contact or it may instruct that the father engages in self-help therapy or addiction treatment through a 12-Step program or a treatment facility.
So, should I withhold my child?
Parenting is a tough gig and parents are not perfect.
The emotional rollercoaster of any divorce, even the friendliest one, puts enormous strain on families with children being the biggest casualties.
Under Australian family law, which is technically gender-neutral, children have a right to enjoy a meaningful relationship with both their parents.
Before you make any decision about whether you should seek to withhold a father’s access to their child, you need to try and look at the facts from a neutral perspective.
Most fathers will seek to continue having a healthy relationship with their children post-divorce and in the ideal separation and divorce, both parents are seeking to co-parent to deliver the best outcomes for their children.
Finally, you should seek independent legal advice before you proceed with any course of action.
The expert team at Justice Family Lawyers can advise you about your rights in relation to seeing your children.