The age old question “Can I stop the other parent from seeing our child?” is and yet isn’t a very simple one. There are a range of different circumstances and factors that go into determining whether it is appropriate to deny access of a child to the other parent.
The answer necessarily needs to be “it depends”. While there are circumstances where denying a parent access to a child is appropriate and justified, withholding a child can also have serious legal consequences, and can result in adverse parenting orders being made against you. It is always recommended to speak with a family law solicitor before preventing access between a child and their parent, unless in situations of emergency.
The Child’s Best Interests Come First
In Australia, the Federal Circuit and Family Court of Australia holds the Jurisdiction to determine what parenting orders should be in place; and therefore, whether a child should be spending time with both of their parents and what that should look like.
The best interests of the child are the paramount consideration. Section 60CA of the Family Law Act 1975 (Cth) requires courts to make parenting orders based on what is best for the child—not what is fair or convenient for either parent.
Importantly, there is no presumption applied in parenting proceedings, only the individual circumstances of each family will indicate to a court what parenting arrangements are in that child’s best interests.
Now you may consider that denying access of a child to their parent is in the child’s best interests, and if that is the case, then the circumstances may justify a withholding of contact. This cannot be subjective though, and must be a decision made in contemplation of what a Court would likely do in the circumstances.
Where There Are No Parenting Orders
If there are no parenting orders in place, there are no legal obligations on either parent capable of enforcement by a court. One parent could withhold access of a child to the other parent. That parent though should only do so if they genuinely believe that allowing contact would place the child at a risk of harm that is unacceptable.
Withholding a child from their parent should never be an action done in isolation. It should always be accompanied with obtaining legal advice and seeking court intervention for protective Orders.
It should also always be made with consideration in mind to:
- The level of risk identified at its highest based on the current evidence, and whether it would meet the standard of an unacceptable risk as set out in caselaw;
- The level or risk weighed against the benefit of that child in having a relationship with their parent;
- whether there is a way for the child to still derive benefit from a relationship with a parent with appropriate safeguards in place (for example; supervised time, seeking restraints on risk taking behaviours, seeking restraints from third parties coming into contact with the child); and
- the psychological impact on the child as a consequence of a severed relationship with a parent, both in the short term, medium term and long term.
If there are parenting Orders in place
If parenting orders are already in place, both parents are legally required to comply with them.
A parent who does not make a child available in accordance with the orders may be found to have contravened those orders unless they have a reasonable excuse. Depending on the circumstances, if the court finds that you have breached court orders without reasonable excuse, the Court may impose consequences including in more serious or repeated cases, a custodial sentence.
Thought should also be given to whether these risk concerns are new concerns, or were already concerns raised during the prior proceedings and were known to the parties and the Court at the time the orders were made.
Consequences of Denying Access of a child to their parent
A level of frankness or testing of the evidence must occur at the outset so you avoid as far as possible a scenario where the court condemns the withholding behaviour. Depending on the courts finding of risk, a client’s actions in withholding a child could be considered entirely appropriate in the circumstances, or unreasonable. If the latter, the act of withholding a child is then considered to be causing harm to that child.
What makes proceedings more difficult, is that interim hearings must proceed cautiously where risks are raised by a parent. Interim Hearings do not have the same time and resources as final hearings. The court is constrained in how much they can test the evidence before them; they must act cautiously. That parent might feel justified after an interim hearing where protective orders were made as a result of their allegations. However, at the final hearing, the evidence can be more properly tested and critiqued. If it is found that there are no risk concerns, or the level of risk does not or did not warrant the withholding, then the withholding parent can be heavily criticised for their actions. This is particularly a concern when coupled with other behaviours that are damaging to the child’s relationship with the other parent.
The following cases illustrate a differing approach that has been taken by the court depending on their individual circumstances.
In the case of Ralton and Ralton [2017] FamCAFC 182, the mother initially withheld the children from the father after a report was made to the Police, originating from a disclosure by the child of physical abuse. Whilst in conjunction with several other behaviours of the mother, her behaviour led the court to a finding that the children were “at risk of longer-term psychological harm in the mother’s household” and that if they remained in the mother’s care they would not have any real relationship with the father. The Judge made orders on a final basis for a change in residence to the father.
In contrast to Ralton in the case of Neil & Zang [2021] FamCAFC 30. In that matter interim orders were made for the child to spend supervised time with the father. The matter then proceeding to trial and having considered all the relevant evidence the primary judge made a no time order, concluding:
I am unable to craft any regime of contact between [the child] and the father which would not expose her to psychological harm as a result of the father’s behaviour and therefore I have reluctantly concluded that there should be no order for contact.
The father appealed the decision but his appeal was dismissed.
Conclusion
There are absolutely situations where refusing contact may be appropriate, particularly where there is an immediate risk to the child. In these situations however, parents should seek urgent legal advice if at all possible and, where appropriate, apply to the Federal Circuit and Family Court of Australia for parenting orders. If you do not act promptly and consistently with your concerns, you may succumb to an argument by the other parent that you cannot support a relationship between the children and that parent.
Written by
Sophie Wilson
Family Law Solicitor
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