During a separation or divorce, it is not uncommon for one parent to try to deny access or try to limit or prevent contact between the young one and the other parent. The parent denying access to a child in Australia may believe they are doing this for valid reasons. However, in most child custody cases, this is generally not allowed.
Getting divorced is stressful in itself, and having your ex-partner or family lawyer try to prevent you from seeing your kids can make things even worse. Thankfully, there are a number of things you can do to improve the situation.
The following article will examine when contact between a parent and their son or daughter is allowed to be refused and when it is not.
Visit our child custody page to learn more about child access and how to best ensure your child’s welfare throughout the process.
What Does “Access to a Child” Mean?
In the context of family law, “access to a child” primarily involves the arrangements or parenting orders that allow a parent to maintain contact or visitation with their child. This could range from frequent communication to actual physical spending time. The term is used to describe the scenario for the non-custodial parent— that is, the parent who does not have primary custody of the child.
In Australian legal discourse, the language has evolved over the years. The term “access” was once used interchangeably with “contact,” and both were often discussed in relation to “child custody.” While “child custody” pertains to the child’s living situation, “contact” and “access” are concerned with how the child’s time is apportioned between both their parents.
Read through our family law services page to learn more about how family law works.
Discover our child custody law page to understand more about the laws surrounding child custody in Australia.
As a general rule of thumb, a parent is not allowed to practice denied access to their child in Australia, even in the following situations:
- The parent won’t pay family support
- The parent is occasionally late to pick up or drop off their young one
- The parent does not visit their young one enough despite there being a custody agreement in place.
If a parent wants to reduce or stop contact with the other parent, they will generally have to go to court to get an order from a judge. However, if the young one is in physical or psychological harm or physical danger, the parent is allowed to do what they must in order to protect them. The parent can then go to court to request an order denying their partner access to a child in Australia or at least ask the court to limit visitation rights.
The Importance of a Child Having a Meaningful Relationship with Both Parents
As laid out in the Family Law Act 1975 (Cth), particularly section 60CC(2)(C), having a meaningful relationship with both parents is a key consideration in determining the child’s best interests. Generally speaking, the court seeks a parenting plan that enables a child to have interactions with both parents, where feasible.
Because the child’s well-being often benefits from maintaining positive relationships with their parents and other important relatives, especially during the unsettling period of separation, the courts usually avoid restricting access to a child in Australia.
Understanding Parental Responsibility
The Family Law Act 1975 (Cth) additionally stipulates that parental responsibility continues until the child turns 18. This legal framework grants parents specific obligations, rights, and responsibilities concerning their child’s well-being. The enduring nature of parental responsibility, as outlined in law, is another contributing factor that makes it challenging to justify the denial of access to a child in Australia.
When parents separate or divorce, it’s not unusual for one parent to attempt to limit or restrict access or even prevent interaction between the child and the interests of the child or other parent. Although the restricting parent may believe they have good reasons, such limitations are generally unacceptable under Australian law.
Prioritising Your Child’s Well-being
In legal matters involving children, the court’s foremost consideration is always the child’s best interests. This principle serves as the cornerstone for any judicial decision related to children.
The period of separation is often marked by emotional upheaval for the child, who must navigate both change and a spectrum of feelings. For this reason, parents are encouraged to place their child’s best interests at the centre of all decision-making processes.
While restricting or denying access to a child’s safety first might seem like a solution in certain circumstances, it may not always be in the child’s best interests. If you’re contemplating such a step, we strongly recommend seeking professional legal advice.
We recognise that the process of separation is emotionally taxing for everyone involved. Navigating the complexities of child access within Australian law can be daunting, which is why expert guidance is invaluable.
When the court will refuse contact
Typically the court will only allow for denying access to a child in Australia in exceptional or extreme circumstances or when it is required to protect the safety and best interests of a young one.
Situations whereby access to a child may be denied in Australia include:
- the presence of a history of violence,
- involvement of drug or alcohol abuse, or
- extreme mental health issues affecting one parent.
The court will typically attempt to give a less extreme ruling, such as by allowing the parent to see their young one via supervised contact. This allows parents in jail to still be able to see their son or daughter occasionally.
It is more likely that the family court will limit contact rather than completely denying access to a child in Australia. Some options include:
If a parent has unhealthy behaviours, habits, or attitudes, then they might only be allowed to see their son or daughter under supervised visits. This is done to protect the young one from things such as substance abuse or family violence. Alternatively, if it has been many years since the young one last had contact with their parent, supervised contact may act as a way to gradually ease them back into the relationship, rather than completely denying access to a child in Australia. The following people may be allowed to supervise:
- A trustworthy relative
- A trustworthy person who is not a relative (e.g. babysitter or close family friend)
- A qualified professional.
Contact at a distance
If a parent is not deemed safe to be around, rather than completely denying access to a child in Australia, the court may rule that contact between the parent and their young one must be kept at a distance, i.e. by phone, online or through letters.
The final option involves creative measures in order to keep the young one safe whilst visiting a parent who has potentially unsafe behaviours. This could include a court order for the parent to not do drugs, play video games, or smoke in front of their young one or a court order to safely install a kid’s car seat every time they use their car.
The Next Best Steps
If you believe a parent has unfairly denied access to a child in Australia and want to do something about it, it may help to have a chat with the parent in a safe environment and express your concerns. If this does not work and they refuse to go to counselling with you or the other parent, it is a good idea to seek legal advice from an experienced family lawyer or apply for a court contact order.
O’Sullivan Legal: Your Trusted Partner in Navigating Child Access Concerns in Australia
The issue of child and parent access is emotionally charged, legally intricate, and of significance to families undergoing separation or divorce in Australia. If you find yourself grappling with concerns related to child access, it is crucial to consult experienced professionals who can guide you through the complexities.
O’Sullivan Legal is a family law firm led by skilled and compassionate lawyers who specialise in child custody and parenting matters, among other family law issues. When you choose us, you’re not merely engaging a law firm; you’re gaining a team of dedicated professionals committed to helping you overcome your legal challenges.
We’re here to guide you every step of the way, ensuring your rights are protected and the best interests of your child are upheld.
For tailored advice and effective legal representation in matters concerning child access, don’t hesitate to contact our team today.