Denying Access to a Child in Australia

The recent Family Law Amendment Bill 2023 significantly impacts Australian parents involved in access denial cases with their children.

One of the most notable changes is the shift from a more rigid “equal share” to flexible, depending on the situation, “joint parental responsibility.”

This guide explores how the bill’s shift from ‘equal share’ to ‘joint parental responsibility’ affects such scenarios.

It delves into the nuances of legal rights and responsibilities, emphasising the bill’s influence on decision-making processes in parental disputes.

Essential for parents either considering or facing access denial, this guide provides a clear understanding of the changed legal landscape, ensuring informed decisions aligned with the new framework set by this pivotal legislation in Australia’s family law system.

Denying access to a child in Australia

Learn what steps you can take next

Reasons to Deny Overnight Visitation

In cases involving child custody and visitation rights, there are several circumstances where denying overnight visitation may be considered necessary for the child’s safety and well-being.

These include:

  • History of Violence: If one parent has a history of violence, either towards the child or others, it may be deemed unsafe for the child to spend nights with that parent. This is due to the potential risk of harm.
  • Drug or Alcohol Abuse: Substance abuse issues can severely impair a parent’s ability to care for a child safely and responsibly. Overnight stays might be restricted if there is a concern that the parent’s substance abuse could endanger the child.
  • Extreme Mental Health Issues: If a parent suffers from severe mental health problems that are not effectively managed, this could pose risks to the child’s safety or emotional well-being during overnight visits. In such cases, visitation might be limited or supervised to ensure the child’s safety.

In all these scenarios, the primary concern is the child’s safety and well-being.

Decisions about overnight visitation are typically made by family courts, taking into account various factors, including expert assessments and evidence presented regarding each parent’s ability to provide a safe and nurturing environment.

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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 to protect a child’s safety.

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 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, to maintain your relationship in the short term.

What is a supervised visit?

“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.

Can I Call The Police if My Ex Won’t Let Me See My Child?

If your ex-partner is not allowing you to see your child in violation of a court order or agreed parenting plan, calling the police is an option, especially if you believe your child is in immediate danger.

However, the police may be limited in what they can do if the issue is primarily viewed as a civil matter, such as a dispute over custody or visitation rights. It’s generally recommended to address these issues through legal channels.

You should contact a family lawyer or your legal representative to discuss the situation and explore options such as filing a motion with the family court to enforce the visitation order.

The court can then take appropriate actions to ensure compliance, which might include modifying the custody arrangement or taking other measures to facilitate your access to the child.

Always ensure your actions align with legal advice and court orders to protect your rights and the best interests of your child.

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