In theory, the Family Law Act 1975 focuses upon the best interests of the child, but in reality, you may want to know, can one parent stop another from seeing their child?
You can lose your kids if your ex-partner is determined to erase you from their lives.
If you are going through an acrimonious divorce and you suspect that your ex-partner has narcissistic personality attributes you need to accept that they will do everything in their power to restrict your access to your children or completely deny you access to your own kids.
You then need to take swift action to protect your parental rights. This usually means getting the best quality independent legal advice you can find.
The Family Law Act 1975 operates under the presumption that both parents have equal parental responsibility with the exception of where one parent has engaged in abuse of the child or any type of family violence. The Family Court has a very low threshold when defining family violence. This point has significant implications for parental access and is discussed below.
As a newly divorced parent it would be logical to think that your ex-partner would want to co-parent peacefully and amicably.
Why would one parent want to stop another from seeing their child?
Two high-profile Hollywood celebrity divorces: Gwyneth Paltrow/Chris Martin and Ben Affleck/Jennifer Garner showed how positive co-parenting could be achieved in what seemed to be, fairly low conflict divorces.
When Gwyneth Paltrow and Chris Martin separated in 2014 they happily shared custody of their two children seamlessly even with the introduction of new spouses. A messier, yet still harmonious, celeb example was Ben Affleck and Jennifer Garner’s 2018 divorce.
When Jennifer Garner divorced Affleck after he relapsed on alcohol, hookers, and gambling in Vegas (allegedly) you would think she had every excuse to prevent him from seeing the kids. But she didn’t. Instead, she drove him to rehab and they happily share custody of their three kids. Sober now, Affleck is back on track and both parties continue to share peaceful access to their three children, if the Daily Mail is to be believed.
The flipside of this is the Brad Pitt/Angelina Jolie separation which has been marred by frequent litigation about who gets to see their six children. In these kinds of divorces, there are no real winners and the kids suffer the most.
How does the Family Law Act work in practice?
The Family Law Act focuses upon the rights of children and the responsibilities of the parents towards their children. This focus is on children’s rights rather than parental rights.
The legislation is designed to ensure that children can have a meaningful relationship with both parents and are protected from any forms of family violence.
Usually, during your divorce, you and your ex-spouse agree on parenting arrangements and education for any children of the marriage who are under the age of 18. Then parenting orders can be made and filed in court in the form of consent orders.
When your divorce is relatively harmonious this process is very straightforward. You should also read this Separation Checklist which breaks down the do’s and don’ts when dealing with custody issues.
However, if parents cannot agree on custody of their children, they are encouraged by the court system to first complete a mediation process formally called a Family Dispute Resolution and usually run by Relationships Australia. Your first clue that the other parent is going to be difficult maybe when they don’t turn up to the mediation.
This is a strong clue that one parent will try and stop another from seeing their child.
At this time, the mediator will issue you with a certificate stating that mediation failed because of the no-show of one of the parties.
Now that you have a certificate showing that mediation failed you can file an Initiating Application to the Federal Circuit Court of Australia or the Family Court of Australia asking the court to make orders on the parenting arrangements. This is where the rubber hits the road.
The parenting orders will address the following areas:
- Who each child will live with.
- How much time each child will spend with each parent including grandparents.
- the allocation of parental responsibility.
- ways the child is permitted to communicate with the parent they don’t live with.
- Other relevant aspects about the care, welfare, education and/or development of the children.
If your situation is clearly acrimonious, it is vital that you brief the best lawyer you can find. This is no easy task. The emotional rollercoaster you are already going through because you are by now, likely not seeing your kids, will play havoc with your decision-making skills. You need to ensure you are engaging in a lot of self-care at this time including getting whatever emotional support you can.
How is it in the best interests of the child to restrict access?
Some parents will seek a sole parenting order for their children and use this to restrict access by the other parent. If the court is convinced that sole custody is in the child’s best interests they can make a ruling effectively granting sole custody to one parent.
Although the term “sole custody” is now called “sole parental responsibility”“.
If the court grants one parent sole parental responsibility this may mean that all areas of the children’s lives are now managed by that parent who does not need to consult the other parent on any aspects of their child’s life. The child will live exclusively with the favored parent in the proceedings.
The order would not likely prevent the other parent any access unless it has been proven that that parent poses a threat to the children of the family generally.
Remember that the Family Law Act focuses on the child’s welfare and not the parents and this is where you can quite easily lose custody of your child.
When you get divorced in Australia, know that parents can very easily lodge Family Violence Orders against a parent trying to see a child. In fact, the good old Family Violence Order or restraining order is the lowest hanging fruit for the parent determined to erase the other parent from a child’s life. These orders alone have seen normal middle-class people, educated professionals go to jail for trying to see their kids.
If you wish to recover any access to your child you then need to return to court to either get any Family Violence Orders overturned or see what avenues you have to challenge sole parental responsibility rulings. While doing this you need to appear calm and secure even though you are likely quite traumatized by the loss of your child. You can never appear emotionally dysregulated, even though you most likely are, because the court will interpret this to mean that you could be unstable or even a potentially harmful influence in your child’s life, even though you are not.
If your family law situation has arrived at this point, you need to brief the most skilled family lawyer that you can find and ones who are familiar with the notion of parental alienation.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.