Denying access to a child in Australia
“Denying access to a child in Australia” is a brief overview of useful information to consider if you have thought about denying your partner access to your child or if you are afraid that someone might deny you access.
The separation process can be straining and sometimes one parent might resolve to prevent the other from seeing their child or children.
Being denied access to your child may seem like a harrowing possibility but this article aims to inform you of the rights parents have to access their child.
Can I deny access to my child or children?
Generally, denying access to a child in Australia is not allowed.
Access to a child is only taken away in exceptional circumstances.
Cases, where access to a child might be denied, include when it is in the best interests of the child to do so or in order to protect a child’s safety.
Instances where denying access to a child in Australia might occur include:
- cases where a history of violence is present
- drug or alcohol abuse is involved or
- where one parent may have extreme mental health issues.
Denying access to a child in Australia should only be done in extreme circumstances.
How does a court deny access to a child?
Should a court deny access to a child, the court will formally order the child to live exclusively with one parent.
However, such an order and denying access to a child in Australia is only made if it is in the best interests of the child.
Any parent requesting such an order will have to provide the court with a full report on the claim they are making including the basis on which they are making the claim.
The parent asking for such an order may be asked to provide relevant materials such as police reports, witness statements or evidence of the break down of the relationship.
You will find that even in disagreeable circumstances, such as a parent not paying child support or a parent not visiting a child enough, the court will not deny access to a child.
Instead of denying access to a child in Australia, you can limit the interaction a parent has with a child.
The paragraph “My rights as a parent” below can assist with understanding why courts are reluctant to deny access to a child.
My rights as a parent
The Family Law Act 1975 (Cth) section 60CC(2)(C) states that when the court is trying to determine the best interests of the child, the court must consider:
“The benefit of the child having a meaningful relationship with both the child’s parents”.
The court will aim to allow a child to see both parents, where possible.
It is recommended that children maintain a positive relationship with both parents and other relevant relatives in order to help a child adapt during a separation process.
For this reason, denying access to a child in Australia is generally discouraged.
The Family Law Act 1975 (Cth) also states that a parent has parental responsibility of a child until they are 18.
This means that, under the law, as a parent, you have certain duties, powers and responsibilities towards a child.
Ongoing parental responsibility as prescribed by the law is also another reason that denying access to a child in Australia is hard to grant.
What can I do if I am being denied access to my child?
If you are being denied access to your child without a formal order, you will need to either go to family law mediation or seek legal advice.
Do not simply snatch or attend the residence of the child in order to take the child back.
This could potentially result in a much longer and tougher long-term argument against you.
You might be advised to apply to the Federal Circuit Court or the Family Court for an urgent recovery order.
Hopefully, you will be able to negotiate some kind of contact with the child, even if it is supervised contact, in order to maintain your relationship in the short term.
How to limit the access someone has to my child
You may limit the access a parent has with their child and children if it is in the best interest of the child to do so.
This is of course something subjective and debatable, therefore it is hard to give advice unless it is on a case by case scenario.
For example, a parent may be considering limiting access to their child from the other parent as the other parent has been taking drugs.
If one parent is taking illicit drugs, it does not necessarily mean that a child will be in risk in the care of that parent.
In an extreme example, one parent may have a serious alcohol problem, and is reportedly drinking every day and has recently been caught drink driving, and continues to drive the child whilst potentially being drunk.
In this example, you can see how the actual issue of drug use directly may harm the child.
“A supervised visit” allows a parent to see their child but requires that visit be supervised by someone who is eligible to do so. People who are able to supervise contact between one parent and a child include:
- A trustworthy relative
- A trustworthy person who is not a relative (e.g. babysitter or close family friend)
- A qualified professional.
The access the parent has with a child is limited but not completely cut off.
You will find that even parents in tough circumstances such as being imprisoned are still able to have supervised visits instead of being denied complete access to a child.
The best interests of the child
In court proceedings relating to a child, the court will always consider what the best interests of the child are.
The best interests of a child are the primary concern when the court makes any decision when it comes to the children.
Separation can be a difficult time for a child as they are learning to adapt to change and learning to deal with a range of emotions.
It is always encouraged, as parents, that the best interests of your child is at the forefront of making decisions.
Denying or limiting access may not always be the best answer.
However, if you believe your individual case requires denying access to a child in Australia or limiting access we advise seeking legal help.
We acknowledge that separation can also be a hard time for all parties involved and denying access to a child in Australia can be a complex matter.
This article would like to highlight that there are resources available. The first being legal help.
A helpful link is the Family Court’s Marriage, families and separation fact sheet.
Our blog also has an article on how to make divorce easier for children.
Please seek legal advice if you have any concerns relating to denying access to a child in Australia.
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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.