Denying Access to a Child in Australia

It is 6pm on your changeover day. You are parked outside, right on time, and the message comes through – ‘Won’t make it today’. No explanation, just a single line of text. Your stomach drops, and the question starts running on a loop. Can they actually do this?

(Or, if the situation is reversed, if I keep my own child back because I am worried about what is happening at the other parent’s place, or just want them to be at home with me, am I the one who ends up in trouble?)

Let me give you a straight answer.

If there is a parenting order or a registered agreement in place, you generally cannot lawfully deny the other parent time with their child, and doing it without a good reason can carry real consequences. There are limited exceptions, chiefly a genuine, reasonable belief the child is at risk of harm. If there is no order yet, the position is different again. This page covers both, so read on to the situation that matches yours.

The laws that govern parenting matters are all found in the Family Law Act 1975, as amended by the Family Law Amendment Act 2023, which commenced on 6 May 2024. The court that deals with it is the Federal Circuit and Family Court of Australia. If any of this is already weighing on you, rest assured that our child custody lawyers in my team deal with situations exactly like this every week.

What denying access to a child really means

Start with the thing most people get wrong.

A child in Australia has the right to a meaningful relationship with both parents, where that relationship is safe. The law is built around the child, not around either parent’s feelings on a given day. So the belief that you can withhold your child whenever you are angry, or in the middle of a dispute, or because a payment is late, is simply wrong, and can be highly damaging to children involved. Those are your grievances. They are not your children’s problems.

A quick note. The terms ‘access’ and ‘custody’ aren’t used by family lawyers anymore. The language is now parenting arrangements, who a child lives with, who they spend time with, and parental responsibility – which is the responsibility for the big decisions in a child’s life. What has not changed is the core legal considerations that frame parenting orders. When a court makes any parenting decision, the child’s best interests are the primary consideration.

The child’s best interests are the paramount consideration under section 60CA of the Family Law Act 1975. The factors the court weighs to work out a child’s best interests were rewritten when amendments were made, and there are now six factors set out in section 60CC of the Act (in force 6 May 2024).

Here is a note of caution before we go further. The 6 May 2024 changes removed the old starting point that used to be described as a presumption of equal shared parental responsibility when making parenting orders. If you have read older articles that still lean on that idea, put them aside. It is not the current law.

First question – is there a parenting order in place?

This is the fork in the road, and which side you are standing on changes everything.

Situation A: There is already an order or a registered agreement. A parenting order made by the court, or a parenting plan that has been formalised, is binding. Following it is not optional, and neither parent gets to opt out because it has become inconvenient, or that’s what they feel like. If either parent is breaching it, there are enforcement options, which I will come to below.

Situation B: There is no order or agreement yet. Nothing formal has been put in place. Here there is no order to breach, so the mechanics are different. The path runs through negotiation, family dispute resolution, and if needed an application for a parenting order. If you and the other parent reach agreement, you can lock it in through consent orders so it is enforceable rather than an agreement that unravels when things get tense.

So, before you do anything else, work out which situation you are actually in. The rest of this page is easier to read once you know.

When is withholding a child lawful?

There is a narrow lane where withholding a child is defensible, and it is narrower than most people hope.

The main lawful ground is a genuine, reasonable belief that the child is at risk of harm. That is the test the court comes back to – did the parent have a reasonable excuse for not following the arrangement? It is not a feeling. It is not ‘I do not trust their new partner’. It is a real, articulable safety concern.

A concrete lawful example – you have credible reason to believe the other parent is drinking heavily and driving the child around, or the child comes home with unexplained injuries and discloses something that frightens you. Acting to keep the child safe in that moment, and moving quickly to the court or to advice, is defensible. If the safety fear involves violence or threats, you may also need to apply for an AVO alongside the family law steps.

A concrete unlawful example – the other parent is late with child support, or started seeing someone new, or you had a screaming row on the phone. None of this is a lawful reason to stop the child seeing them. Withhold on that basis and you are the one exposed.

A third interesting scenario is – ‘what if a child expresses they don’t want to go?’. This can be a complex area, because it may be due to real safety concerns, but it may be because they know the other parent makes them do their homework. It may be because they are scared of the other parent’s new partner, or it may be because they like the pool at one house better and it’s the middle of a 40 degree summer. They may have their room cleaned at one house by their parent, and make a scene about going back to the other parent’s home as they know they have to do chores.

If there is a real concern, address it in writing and through the correct legal pathway. Otherwise, lean into the advice on legal obligations given by the Federal Circuit and Family Court of Australia:

‘You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.’

If there is a real safety issue, address it properly, not by withholding a child. You rarely get to be the final judge of your own reasonable excuse. The court will decide whether the excuse holds. That is exactly why the safest move, even when your fear is genuine, is to document it and get in front of the court quickly rather than simply going dark.

What happens if a parent denies access without a good reason?

Let us be honest about the stakes, because this is where a lot of people underestimate what they are risking.

If there is an order in place and one parent keeps breaching it, the other parent can file a contravention application in the Federal Circuit and Family Court. These proceedings are treated as quasi-criminal, and the court has a real range of responses.

Depending on how serious and how repeated the breaches are, the court can:

• Order make-up time to compensate for the time the child missed with the other parent.
• Order the parent who breached to pay the other parent’s legal costs.
• Vary the parenting order.
• Require a bond.
• In serious or repeated cases, impose penalties up to imprisonment.

And there is a longer consequence people miss. Persistent, unjustified denial can lead the court to look again at the whole parenting arrangement, including who the child lives with. A parent who shows they will not support the child’s relationship with the other parent can find that this counts against them when the court weighs the child’s best interests.

The court’s enforcement powers for breaches of parenting orders sit in Division 13A of the Family Law Act 1975.

Supervised and graduated contact: the court’s preferred alternative

Here is the part that reassures a lot of frightened parents, on both sides. Courts rarely cut a parent off from their child completely. Instead they reach for the mildest arrangement that keeps the child safe.

Think of it as a ladder rather than an on/off switch:

• Supervised contact, where time is spent with a trusted third party or a professional contact centre present.
• Contact at a distance, such as phone or video calls, where in-person time is not workable for a period.
• Graduated arrangements that step back up toward normal time as trust is rebuilt.

The reason courts lean this way is that they place real weight on a child keeping a genuine, in-person relationship with both parents. I have seen this reasoning applied in a relocation matter, where a parent wanted to take the child overseas:

The judge was concerned about the move, saying that the medical system and the social security system in the US might not be as good as what we have here in Australia, and on top of that, the denial of having face-to-face time between the father and the child would result in a poor outcome for the child, and that video calls actually are not a substitute for being in person with your child.

That is the mindset. Distance and screens are treated as a poor substitute for real time together, which is why total cut-off is the exception, not the default.

What to do if you’re being denied access to your child

If this is happening to you right now, here is the order I would work through. Save this.

1. Keep a dated record of every missed changeover, every cancelled visit, every message. Facts win these matters, and memory fades.
2. Attempt family dispute resolution and obtain a section 60I certificate, unless an exception applies, for example genuine urgency or family violence. In most parenting matters you need that certificate before you can file. It does not last forever: it is generally valid for 12 months, so once you have it, act rather than letting it lapse.
3. If an order is already in place and it is being breached, file an Application – Contravention in the Federal Circuit and Family Court.
4. If the child is not being returned to you at all, consider a recovery order. A recovery order can direct the police to find the child and return them.
5. If there is no order yet, apply for a parenting order so you have something enforceable in place.

One more tip we give clients, because the timelines here can be long. If you have applied to court and a final hearing might be a year or two away, you do not have to just wait and hope:

You can get interim orders to keep things stable during a period of time when you’re waiting for final orders in court. Let’s say you’ve applied to court and now you’re waiting for a final hearing, and that could be one or two years away. What happens in the meantime? You can ask the court for interim orders, which are temporary orders that can stabilise things.

Do the courts favour mothers over fathers?

Short answer: no, and I say this to worried fathers most weeks.

The law is gender-neutral. There is nothing in it that starts a mother ahead of a father, or the reverse. The court is not asking who the better man or woman is. It is asking one question: what is in this child’s best interests, judged on safety and on the child’s real relationship needs.

What can look like bias is usually the facts. If one parent has been the primary carer, or if there are genuine safety concerns on one side, the outcome reflects that, not the parent’s gender. Turn up as a safe, involved, reliable parent and the law is built to recognise it.

Outcomes turn on the child’s best interests under sections 60CA and 60CC of the Family Law Act 1975, not on the gender of either parent.

Parental alienation

Parental alienation is where one parent, over time, turns a child against the other without a real justification. Drip by drip: the sighs, the ‘we can’t afford nice things because of your dad’, the cancelled visits dressed up as the child’s own choice. While parental alienation is not expressly recognised by the courts, or in the Family Law Act, the behaviours involved are.

Persistent, unjustified undermining of a child’s relationship with the other parent can greatly harm the child, and the court can address that behaviour as relevant when it considers parenting arrangements. A parent who does it can find it counts against them.

If you think this is happening to your child, do not try to counter it by badmouthing the other parent back. Document what you see, keep showing up, and get advice early.

If someone is keeping you from your child, or you are holding your child back because you are genuinely scared for them, do not sit in that alone and guess your way through it. Book in a chat with me and my team, no pressure, no judgment, just honest advice on where you stand and the next step that actually protects your child. The child custody lawyers on my team work through this every week. Call 1300 614 732.