Visitation Rights in Australia: 2023 Guide
Our child custody lawyers get a lot of questions about visitation rights, how they work in Australia, and how non-primary carer parents can increase their time with their children.
In this article, we will discuss how visitation rights work in Australia, how people can increase their visitation rights to spend more time with their children, and how they can be reduced or denied.
What Are the Basics of Visitation Rights in Australia?
Visitation rights in Australia are parental rights awarded to the non-primary carer of the child or the non-custodial parent. If your children live with your ex, these visitation rights enable you to access, see, and spend quality time with your children.
In Australia, the family court operates in such a way as to ensure the best interests of children and their well-being. The court assumes that having meaningful and sustained relationships with parents and their families is in children’s best interest.
Usually, when one parent has visitation rights, the other parent has sole custody of the child or children. Under section 61DA of the Family Law Act 1975, the court presumes equal shared responsibility of both parents when considering parental orders. However, the court can override this and award sole custody to one parent if the other parent has:
- Abused the child or other children
- Exposed the child to drugs or alcohol abuse
- Engaged in family violence
In other circumstances, the parents may agree to award one parent sole custody between each other or through mediation outside the courts. To give the non-custodial parent visitation rights, the parents must craft and agree to a parenting plan. Parenting plans should be written carefully, with all the parenting details articulated and should be dated.
For parents who would like to make these parenting plans legally binding, they can make an application for a consent order.
If you and your ex disagree, you can file applications for a parenting order with the court.
How is Visitation Determined in Australian Family Law?
The Family Law Act of 1975 stipulates visitation rights. The Act states that the child’s best interests are the most critical factor in all parental matters, including visitation. This means that when determining visitation, the court will consider what is in the child’s best interests.
When determining visitation, the court will consider several factors, including:
- The child’s age and maturity
- The child’s relationship with each parent
- The parent’s ability to care for the child
- The parent’s willingness to cooperate
- The child’s wishes, if they are old enough to express them
The court may also consider additional elements, such as the child’s unique requirements or the parent’s employment status.
If the parents cannot agree on visitation, the court may issue a custody order that specifies visitation terms. The visitation order may specify each visit’s frequency, duration, and location.
If a parent violates a parenting order, the other parent may seek court intervention. The court may order the parent to comply with the order or impose additional sanctions, such as a fine or imprisonment.
Can Visitation Rights be Denied or Modified?
Yes, visitation rights can be denied or modified in Australia. The Family Law Act 1975 states that the child’s best interests are paramount in all parenting matters, including visitation.
There are several reasons why the court may deny or modify visitation rights, including:
- The parent is abusive or neglectful.
- The parent has a history of violence or drug abuse.
- The parent has been convicted of a crime against a child.
- The parent has not maintained a relationship with the child.
- The child does not want to see the parent.
If the court decides to deny or modify visitation rights, it will make a parenting order that sets out the reasons for the decision. The order may also include conditions the parent must meet for future visitation.
What to Do if Visitation Rights are Violated?
If your visitation rights are violated, it is vital to take action to protect your rights and the best interests of your child. Here are some steps you can take:
- Document the violation. This means keeping a record of the violation’s date, time, and details. You can do this by writing down what happened or by keeping a copy of any emails, text messages, or voicemails that you receive from the other parent.
- Talk to the other parent. If this is the first time that the other parent has violated your visitation rights, try to talk to them directly. Explain how the violation has affected you and your child, and ask them to comply with the parenting order.
- If the other parent is unwilling to cooperate, you may need to take legal action. This could involve filing an application with the court for an order to enforce the parenting order. The court may order the other parent to comply with the order or impose other sanctions, such as a fine or imprisonment.
- Get legal help. If you are considering legal action, speaking to a family lawyer is essential. A lawyer can help you understand your rights and options, and they can represent you in court if necessary.
Here are some additional tips for dealing with visitation rights violations:
- Stay calm. It can be challenging to stay calm when your visitation rights are violated, but it is vital to do so. If you lose your temper, it will only make the situation worse.
- Be assertive. You do not need to be aggressive, but you do need to be decisive in your dealings with the other parent. Let them know that you are serious about enforcing your visitation rights.
- Be patient. It may take some time to resolve a visitation rights violation. Do not give up, and continue to take the necessary steps to protect your rights and your child’s best interests.
How to Increase Your Visitation Rights?
Increasing your visitation rights means you will get more time to spend with your children and maintain a healthy and wholesome relationship with them.
Whether you want to challenge the court’s parenting order or try to agree with your ex-partner to change the parenting arrangements you have in place, you have to start by showing the other parties involved that you are willing and have the capacity to be more involved in your children’s lives.
Showing you can take on more parenting responsibilities will make increasing your visitation rights more possible.
Some actions you can take to be more involved in your children’s lives and show your ex-partner and the court that you are proactive include:
- Not limiting your involvement to the time you spend together and child support
- Staying informed about extracurricular activities and try to show up by asking your ex for details in advance
- Adding yourself as a contact in your child’s school
- Trying to offer support to the primary care parent by taking on some of their responsibilities
Once you change and become more involved in your child’s life, you can approach your ex to increase your visitation rights. You may resort to mediation if you may yield better results.
Alternatively, if parenting orders are in place and you and your ex agree to new parenting arrangements and plans, you must submit new consent orders.
If you cannot agree, you must file a new application with the court. In this case, the onus is on you to demonstrate to the court that your circumstances have changed.
How to Limit or Deny Visitation Rights of Your Ex Partner?
Generally, when the court gives one parent sole custody of a child, the other parent is always given visitation rights.
If you are the custodial parent of your child or children and want to curtail your ex’s visitation rights, you must have a valid reason to do so.
The court will consider changing the visitation rights of the non-custodial parent:
- Is exposing the child to drug or alcohol abuse
- Is violent
- Has severe mental health challenges that limit their ability to care for their child
If you find yourself in this situation, you can file a new application for a parenting order with the court. In this case, it will be your responsibility to prove that your ex endangers your child’s welfare.
Supervised visitation is another option that can ensure your child’s safety but allows them to have a relationship with their other parent. Supervised visitation is when a third party is present when your child spends time with the non-custodial parent and may be involved in handing over the child from you to the other parent and vice versa.
Assuring Fair Visitation Rights
Our client, a loving father in NSW, faced an uphill battle for visitation rights to his young daughter after a bitter separation. Despite his best efforts, his ex-partner only granted minimal visitation, causing him and his daughter emotional distress.
Justice Family Lawyers swiftly intervened, conducting an exhaustive review of his case. We formulated a solid legal strategy, presenting compelling evidence of his parental competence and deep bond with his daughter. In court, our tenacious advocacy led to modifying the visitation agreement, ultimately granting him substantial visitation rights and fostering a healthier relationship between father and daughter.
Experiencing Issues with Visitation Rights in Australia?
In the intricate world of family law, asserting your visitation rights can be challenging. Justice Family Lawyers is here to stand by your side. Our seasoned team can navigate these complex waters, advocating for your rights and fostering the best outcomes for your family. Don’t face this alone; contact us today and let’s pave the path to a fair resolution.
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.