If you or someone you know is considering preventing a child from seeing the other parent, you need to be aware of the grounds of doing so and possible consequences.
A parent may apply to the Federal Circuit and Family Court of Australia (the Family Law Court or the Court) for a parenting order seeking an order that they have sole parental responsibility in relation to the child and that the child lives with them and either spends limited or no time with the other parent. The paramount consideration in all parenting matters is what is in the child’s best interests.
A parent may also apply (or the Police on their behalf) to the Magistrates’ Court of Victoria for an Intervention Order stopping a parent from contacting or seeing a child to get immediate protection from family violence. More information about Intervention Orders can be found here.
Parenting Orders impose either positive or negative obligations on parents in relation to the child’s care arrangements.
A positive obligation means that you must do something, such as to drop the child off at the other parent’s home.
A negative obligation means that you must not do something, such as to avoid drinking alcohol whilst the child is in the parent’s care.
Parenting Orders can also be Interim (meaning short term orders until further short term orders or a Final Order is made) or Final (being the orders that govern the arrangements for the child on a long term basis).
Parenting orders can be made in relation to a range of areas, including:
Parenting orders are made in the best interests of the child and allow for other practical matters including how changeover of the child is done and when and how the children spend special days with each parent (such as birthdays, Christmas, public holidays and school holidays).
The Family Law Act 1975 (Cth) (the Act) recognises that parenting is a responsibility, not a right, and that responsibility involves making decisions in relation to the child’s long-term issues such as their name, health, education and religion.
Each parent has shared parental responsibility for each of their children until they reach 18 years old or until the Family Law Court orders otherwise.
If an application is made to the Family Law Court, there is a presumption that the parents will have equal shared parental responsibility in relation to a child’s long-term issues. This means that decisions must be made jointly. However, this presumption does not apply if there are reasonable grounds that a parent has engaged in family violence or child abuse or it is not in the child’s best interests for the parents to have equal shared parental responsibility.
A parent with sole parental responsibility does not need to consult the other parent to make the long-term decisions for the child.
It is important to understand that equal and shared parental responsibility does not necessarily mean that a child will spend an equal amount of time with each parent.
While the Family Law Court is required to consider that a child spend equal time with each parent if it determines that equal shared parental responsibility is in the child’s best interests, the Court has to consider whether equal time is still in the child’s best interests.
If the Family Law Court determines that it is not in the best interests of the child to spend equal time with each parent, the Court must consider whether the child can spend substantial and significant time with the other parent. Substantial and significant time generally involves the child spending time with the non-residential parent on both weekdays and weekends. If substantial and significant time is in the child’s best interests, a different arrangement may be determined.
The Act sets out that there are two considerations (primary and additional considerations) in determining what is in the best interests of a child for the Court to consider in determining what parental responsibility, living and spend time arrangements are ordered for the child.
The primary considerations are:
If there is a conflict between these two considerations, the Court will prioritise protecting the child from harm even if that means the child’s relationship with one parent is limited either through parental responsibility or spend time arrangements.
Additional considerations include a wide variety of factors, including but not limited to:
The Court may order that one parent has sole parental responsibility of a child and that the child lives solely with that parent. However, such an order does not prevent the child from having spending time with the other parent.
If the Court considers there is a reasonable risk of harm to the child from one parent, the Court may order that the child spend supervised time with the other parent – supervised by a trusted relative, family friend or qualified professional or that the parent’s time with the child is to be conducted through telephone, letters or online platforms.
The Court is reluctant to stop a child’s relationship with the other parent entirely and will only do so in circumstances where it is in the best interests of the child to do so.
The Act requires the Court to take into consideration the child’s wishes in relation to their relationship with each parent, living and spend time arrangements. The Court must consider the child’s age and level of maturity when considering the child’s views.
However, if a child expresses a wish to not spend time with one parent, this is not determinative of the parenting arrangements. The paramount consideration is the child’s best interests determined by the primary and secondary considerations described above.
If your child is being withheld from you in contravention (breach) of a Court Order, you should obtain legal advice as soon as possible.
If there are no Court Orders in place and no agreement can be reached between the parents regarding the child’s long-term decisions and living arrangements, you should also obtain legal advice earlier to work out your options.
Coulter Legal assist you to engage in family law mediation or to apply to the Family Law Court for parenting orders or Enforcement or Contravention Applications to recommence the child’s time/relationship with you.
If a parent has contravened a Court Order by withholding a child from the other parent and there is no reasonable excuse for doing so, the Court may impose any of the following orders:
If there are no Court Orders in place and you hold concerns about the other parent and the child, you should seek legal advice about the impact of withholding (with or without grounds) may or may not have on the case.
You should seek legal advice about any reasonable excuse in not complying with a Court Order or your parenting case in general. More information about the consequences of contravening a Parenting Order can be found here.
Our Family & Relationship Law Team at Coulter Legal are experienced in providing advice with respect to child and parenting matters. Please do not hesitate to contact our office on 03 5273 5273 to arrange an initial consultation, free of charge, to discuss your personal circumstances and how we may assist you.
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