In Australia, arrangements for the care of children are often among the most contentious issues after spouses or partners separate.
In some cases, previously agreed contact is cancelled, one parent does not respond to messages or cooperate with changeovers, or even says that the other parent will never see the child again.
Many people’s first response is to call the police, collect the child directly from school or demand cooperation through forceful means. These steps may not resolve the problem and, in some cases, may further intensify the conflict and affect how the matter is assessed in future family-law proceedings.
The first point to understand is:
One parent cannot decide unilaterally that the other parent may never maintain a relationship with the child simply because the relationship between the adults has deteriorated.
At the same time, Australian family law does not automatically give each parent a right to care for the child ‘half the time’. When a court considers parenting arrangements, its most important consideration is:
what arrangement is in the best interests of the child.
Can the Other Parent Unilaterally Stop Me from Seeing My Child?
Whether one parent may restrict the other parent’s contact with the child depends on the particular circumstances.
If contact is refused solely because the parents argued, one parent dislikes the other’s new partner, there is conflict between family members, or one parent hopes to use the child to influence property or other issues, those reasons will generally not, by themselves, support preventing the other parent from maintaining a relationship with the child over the long term.
However, there may be concerns about the child’s safety, such as:
- family violence;
- child abuse or neglect;
- serious alcohol or drug problems;
- other circumstances that may affect the child’s safety and wellbeing;
The court may consider adjusting the parenting arrangements, such as ordering supervised time, changing the method of changeover or restricting contact where necessary.
The key question is therefore not simply whether the other parent ‘is entitled to stop me seeing the child’, but why contact is being refused and whether any formal legal arrangements are currently in place.
First Confirm Whether Any Formal Parenting Orders Are in Place
This is a very important step when dealing with this type of problem.
If the parents currently have only:
- a verbal agreement;
- an agreement by text message or email;
- a Parenting Plan;
those arrangements will generally not have the same enforceability as a court order. If one parent suddenly changes the arrangement, the available response differs from the response to a breach of a court order.
If the parents can reach agreement, they may consider applying for:
Consent Orders
so that their agreed parenting arrangements are approved by the court.
If the parents cannot reach agreement, it may be necessary to consider applying for:
Parenting Orders
so that the court decides where the child will live, the time the child will spend with each parent and other related matters.
If Parenting Orders are already in place, both parents are generally required to comply with them. If one parent refuses without reasonable excuse to make the child available for changeover or to permit contact in accordance with the orders, this may amount to a contravention.
Whether there has been a contravention will still depend on:
- the precise terms of the court orders;
- what actually occurred;
- whether the other parent had a reasonable excuse;
in the particular case.
Do not focus only on what the parents previously ‘agreed’. Confirm whether the current arrangement is a private agreement, a Parenting Plan or an enforceable court order.
Will the Court Support Equal Time for Each Parent?
Australian family law does not require a child to live with each parent for half the time after separation.
When deciding the child’s future arrangements, the court considers a range of factors, including:
- the child’s safety and care environment;
- the child’s age, routines and emotional needs;
- each parent’s past involvement in caring for the child;
- each parent’s future ability to provide stable care;
- the importance of the child maintaining a relationship with both parents where it is safe to do so;
- the child’s views and whether those views are affected by the child’s age, maturity or other factors.
The focus when seeking parenting arrangements is therefore not on proving ‘I should receive 50% of the time’, but on explaining:
which arrangement will genuinely serve the child’s long-term interests.
What Should I Do Now If the Other Parent Will Not Let Me See My Child?
In this situation, it is generally unwise to:
- go directly to the school or home and forcibly take the child;
- send threatening messages;
- involve the child in the conflict between the parents;
- respond by stopping child-support payments.
These actions may further escalate the conflict and may affect the court’s future assessment of each parent’s ability to manage family conflict.
More prudent steps generally include:
- proposing clear and reasonable arrangements for contact or calls by text message or email;
- retaining records of communications, including messages cancelling arrangements or refusing changeover;
- confirming whether any court orders or other formal arrangements are in place;
- considering negotiation, Family Dispute Resolution or a court application, depending on the circumstances.
It is generally necessary to participate in Family Dispute Resolution before applying for Parenting Orders. Exemptions may apply in urgent situations, including family violence or risks to a child’s safety.
When Should You Seek Legal Assistance Promptly?
Different circumstances call for different legal measures.
A single missed contact visit is very different from a child being concealed or taken interstate, or being at risk of removal from Australia.
Seek professional legal advice promptly if:
- the other parent suddenly stops communicating and refuses to disclose the child’s location;
- the other parent takes the child without agreement and says the child will not be returned;
- you believe the child faces an immediate safety risk;
- the other parent is preparing to take the child out of Australia;
- Parenting Orders are already in place but the other parent repeatedly refuses to comply with them.
Depending on the circumstances, it may be necessary to consider:
- Parenting Orders;
- a Recovery Order;
- a Location Order;
- measures to prevent the child from leaving Australia.
Where the relevant requirements are met, a Recovery Order can require the child to be located and arrangements made for the child’s return, but the child’s best interests remain the court’s central consideration.
A Lawyer’s Reminder: Do Not Use the Child as a Tool in Parental Conflict
Being unable to see your child after separation can cause significant distress.
But the child’s arrangements should not be used as a bargaining tool over property, child support or other conditions.
Do not stop paying child support because you cannot see the child, and do not pressure each other by ‘withholding payment’ or ‘withholding the child’.
The sooner the issue is redirected from emotional conflict to practical parenting arrangements, the more likely it is that a stable solution serving the child’s interests can be found.
If the other parent has repeatedly refused changeover, or you are unsure whether the current agreement is legally enforceable, seek advice from a lawyer as early as possible. Different family circumstances may require entirely different legal pathways, and timely advice can help prevent the problem from becoming more complex.
