My children are being withheld from me, what do I do?

Children of separated parents can fall victim to the conflict that engulfs a divorce and often one parent withholds children from the other.

Withholding Children

I have titled this article verbatim from a family law client who contacted our office with this exact question. In fact, if I was a betting person, I would bet that I am asked this question a handful of times per week.

The sad reality is that often children of separated parents fall victim to the constant conflict and battles that engulf parents during a separation. It can be difficult, and I sympathize with people going through a separation, to see the forest for the trees — or in other words or see the bigger picture in stressful circumstances. The bigger picture in most cases is that your children being deprived of a meaningful relationship with one parent is not always in their best interests.

Social science dictates the plethora of reasons why it is beneficial for a child to have a meaningful relationship with both parents. This is largely the reason why the Family Law Act 1975 specifically provides that a child has a RIGHT to a meaningful relationship with both parents. No single parent is more important than the other when it comes to the child’s right to a relationship with their parent.

Where There’s an Issue of Risk

Of course, there are some exceptions to a child spending significant and substantial time with a parent, the most common being if there is an issue of risk to the child in a parent’s care. Risk is usually categorized as abuse, neglect or family violence — essentially anything that may result in a child suffering emotional, psychological or physical harm. The second most common reason is the child’s age and stage of development.

I have been privy to many judge’s views when it comes to the appropriate ages for a child to spend significant periods of time with a parent. More recently, it was said that by the age of three a child should be commencing overnight time with the non-primary parent — any younger would be inappropriate at that child’s age and stage of development. Right or wrong, the conservative approach is usually the safest when it comes to children.

Where There’s No Issue of Risk

But what if these circumstances don’t apply to you? What if you are both capable, loving and supportive parents? What if your child is of an age where they are able to cope with extended periods of time away from a parent for the purpose of spending time with the other parent?

If this is you and you’re in a situation where you are spending minimal time with your child or no time at all, it is of utmost importance that you consult with a lawyer at your earliest available opportunity. The one piece of advice that I offer people in this situation is that the longer you leave the situation as is, the more difficult it will be to reestablish your relationship with your child and by virtue your child’s time with you. The status quo is not the right answer when it comes to a child being withheld by a parent. Quite commonly I get the question of what to do when a mother is withholding a child from the father or worse still, a mother is using a child against the father.

To tailor my advice to suit your individual needs, the best place to start is with a face-to-face conversation, however, in my years of practice, I have learned that people usually fall into one of two categories when it comes to a child being withheld. First is those who have formal arrangements in place for their child by way of a parenting plan or parenting order and the child is being withheld and second is those who have no formal arrangements in place and their child is being withheld.

Where There’s No Formal Child Custody Arrangements In Place

Let’s start with the latter, being those with no formal arrangements, which ironically is the easier place to start. Where there are no formal arrangements in place by way of a Court Order for the ongoing care and living arrangements for a child, then it is effectively a free-for-all and a parent can do as they please. Without Court Orders in place, there are no legal consequences for either parent choosing to withhold the child. However, without reasonable justification, the withholding parent is likely to attract criticism from the Court should the matter proceed to that forum. It is always wise to seek legal advice prior to withholding a child if you believe you have a reasonable excuse or justification for doing so.

To further complicate matters, for those with a parenting plan there is also a level of uncertainty. While a parenting plan is an agreement between parents about the child, a parenting plan is not a legally enforceable document so there is very little that can be done in the way of legal consequences for a parent withholding a child without reasonable excuse or justification.

Where Mediation Is Necessary

If you find yourself in a situation where your child is being withheld from you without reasonable excuse or justification, the Family Law Act 1975 requires parents to attend mediation to try and resolve their differences before they can commence proceedings in Court. There are few exceptions to this requirement such as circumstances of urgency, the impracticability of mediation and issues with domestic violence. I have gone into further detail regarding these exceptions in a previous articles such as what to do when parenting orders and domestic violence orders are no longer appropriate or conflict.

If you have participated in mediation and have been able to reach an agreement, you must consider reverting that agreement to writing, then ensuring that agreement is reflected as a Parenting Order. Once an agreement has been reached, obtaining a Parenting Order is a relatively simple process whereby the Court need only approve the agreement to make the agreement into a legally enforceable Order. It’s best to take your agreement to a lawyer who can draft the necessary documents to seek the Court’s approval.

Where Mediation Didn’t Work

If you are in the unfortunate circumstance where you have attempted mediation and have been unable to reach an agreement, then your next step is to commence proceedings in Court. Before doing so, you must ensure that your mediator provides you with a certificate confirming you have participated in mediation — this is known as a section 60i certificate. A suitably qualified mediator should be able to issue a certificate to you if you have made a genuine attempt at mediation and an agreement was not reached or if the other parent chose not to participate in mediation. It is important not to delay this next step as this certificate is only valid for a period of twelve months. Once expired, you will have to attend mediation again to try and reach an agreement before you can commence proceedings in Court. More importantly, the longer you delay progressing your parenting matter the more difficult it will be to reestablish time with your child, with or without the Court’s intervention.

Where There’s Court Orders in Place

If we look at the second category of persons where children are being withheld, that is where there are Court orders in place and a parent is withholding a child, the usual course is to pursue a Contravention Application. A parent who is knowingly withholding a child contrary to a Court orders is contravening that Order which carries serious consequences depending on the severity of the contravention. Without reasonable excuse or justification, the Court can make a finding that a parent is contravening a Parenting Order and impose consequences ranging from a fine, a bond, even imprisonment.

Now before you go off running to file your Contravention Application, it is important to consider the circumstances of the alleged contravention and whether or not there has been a reasonable excuse or justification. A common example that I often see is where a parent is unable to facilitate time on an isolated occasion due to unforeseen circumstances, for example, the child being seriously unwell, and a medical certificate is able to be provided confirming the child is too unwell to transition between households. If this is not a consistent pattern of behaviour, then it is unlikely that the Court will find a contravention has occurred. However, if a parent is knowingly, and without regard to the seriousness of a Parenting Order, withholding the child then a Contravention Application is the usual remedy. An example of this is a mother withholding a child from the father in Australia.

What The Court Sees When Someone is Withholding a Child from a Parent in Australia

We, as legal practitioners, are there to protect our clients and seek favourable outcomes for their circumstances. The Court, however, is charged with the responsibility of considering the best interests of the child and their right to a meaningful relationship with both parents.

It can be easy for us to lose sight of the importance of a child having time with both parents and rightly or wrongly sometimes parents allow their personal feelings to cloud their judgment when it comes to their child spending time with the other parent. Prior to withholding a child, all alternative options must be considered, and withholding should always be the last resort unless there is a serious issue of risk.

The Solution?

If you are one of the thousands of parents who are fighting an uphill battle to spend time with your child or your child is being withheld from you, our team of dedicated family lawyers has decades of combined legal experience and can tailor advice to your individual needs.

Our goal is to give our clients clarity on a strategy to achieve the best possible outcome and help our clients consider their next best steps. Book a strategy session with one of our family lawyers today for more information.

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