Sometimes, custody matters can get messy and contentious. That’s why we have the family courts in place to seek the outcomes and enforce the orders that best suit the welfare of children and ensure, generally, that both parents are able to have a healthy relationship with their children.
However, the question of keeping a child away from other parent in Australia often comes up. In this blog, we will cover this topic in detail.
Can you withhold your child from their other parent?
In Australia, you are required to comply with court orders regarding parental matters, and that will generally stipulate that both parties have access to a child.
So, you cannot withhold your child from their other parent.
What to do if your ex is withholding your child?
Keeping a child away from the other parent with no reasonable excuse can backfire, as it constitutes a breach of court orders.
If your ex-partner is holding your child from you, in almost all circumstances you have the right to remedy this to spend time with and enjoy a healthy relationship with your child.
If there are court orders in place, you can file a contravention application to the court. Here’s what you’ll need to file one:
- The order or agreement that has been breached
- An affidavit
- A valid s.601 certificate
There is no fee associated with filing a contravention application. However, it is important to note that this application cannot be filed through the commonwealth courts portal and it should be emailed to email@example.com along with any supporting documents.
Once filed, you will need to serve it to your ex, who can in turn, respond to your contravention application with their own application seeking a variation of the order that they are breaching or evidence of why they have breached the order.
It is important to note that in addition to enforcing the court orders, the court may impose heavy fines on your ex, or even impose jail time. If you do not want this to happen, but want to stop your ex from keeping your child away from you, you can file an enforcement application rather than a contravention.
An enforcement application will also require an affidavit filed with it and must be served to the other party via personal service.
If you’re not sure whether you want to file an enforcement of contravention application or need legal council to determine your best course of action in stopping your ex from withholding your child from you, get in touch with our team for a confidential discussion.
When is withholding a child from the other parent the child’s best interests?
In some extreme circumstances, you may keep a child away from the other parent. In these cases, the welfare of the child is compromised and they could be in danger. These extreme cases usually involve:
- Situations where there is a history of family violence or abuse
- Substance abuse including drugs and alcohol
- The other parent has extreme mental health problems that may endanger the welfare of a child
If you find yourself in the above situation and feel for your safety or that of your child, obtain legal advice on the next steps before you breach court orders.
It is also advisable that you try to resolve the problem with the other parent of your child informally.
When withholding a child due to concerns for the child’s welfare
If you are unable to resolve with your ex, it may be best to approach the court and seek to get the court orders changed to reflect your current situation.
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 withholding a child for personal gain
When one 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.