Here in Australia, a legal presumption exists that both parents have equal shared parental responsibility for their children. This presumption continues regardless of the parent's marital or relationship status. It means that parents are expected to make important decisions together about their child’s upbringing, health, education and care arrangements. Parents are expected to communicate with each other respectfully and cooperatively and stay focused on their child/ren.
There may be circumstances, however, in which a parent may withhold a child from the other parent.
Some common examples of this include:
- Child Protection Concerns
If concerns for a child's safety and well-being arise from a parent's conduct or behaviours, then that child’s other parent may withhold the child from that parent. Both parents are obligated to ensure that their child is safe from harm and not placed in any environment or situation where they are exposed to unacceptable risk. This includes instances of abuse, neglect, exposure to family violence, or other forms of harm. In these situations, the parent withholding the child may need to involve the Police or Child Protection to seek formal measures to be put in place to protect the child.
- Magistrates or Children’s Court Intervention Order
Individuals, or the Police, can apply to the Court for a Family Violence Intervention Order. The withholding parent can seek a Protective Order for the children and themselves. This requires either a Police Officer making an Application to the Magistrates Court of Victoria on their behalf or the parent seeking the Order directly through the Magistrates Court website.
If the parent is seeking an Order to protect the children, only then the parent, or the Police, may make an Application to the Children’s Court for a Family Violence Intervention Order.
Family Violence Intervention Orders contain conditions designed to prevent further family violence. This may include a condition to prevent an abusive parent from approaching or contacting a child or prevent them from entering their home, school, kindergarten or childcare.
A court may make further Orders that the perpetrating parent is to have no contact with the child. They may also grant contact by telephone only or supervised contact. The object and intention of Family Violence Intervention Orders relating to children is to protect the children listed in the Order from exposure to further physical, emotional, or psychological harm.
If a Family Violence Intervention Order breach occurs, it must be reported to the Police, who will investigate the breach. If a breach is found to have happened, the Police can arrest the perpetrating parent, who may then face criminal charges. This is designed to provide a strong deterrent again further incidents of family violence and can help ensure the safety of the children involved.
- Federal Circuit and Family Court of Australia Order
When a Federal Circuit and Family Court of Australia Parenting Order is in place that restricts a parent's access to a child,
that parent may be legally prevented from seeing the child until the Order is lifted, revoked or varied.If there are no Orders in place, a parent seeking to restrict or limit the child’s contact with the other parents must apply to the Federal Circuit and Family Court of Australia to obtain one. The Applicant parent will be required to set out what Orders they seek. They must provide an Affidavit as evidence, showing how the proposed Orders are in the child's best interest under the Family Law Act.
If the Court is satisfied that the withholding parent has acted protectively and in the child's best interest, they can make Orders restricting the other parent’s time. The Court can also request that the other parent undertake specific activities to address the matter of risk, such as engaging in a Behavioral Change Program, undertaking supervised drug testing, or participating in a psychological assessment.
It is important to note that even if there is no Court order in place, both parents are expected to act in the child's best interests. Withholding a child from the other parent without a good reason isn’t a good idea. It can be seen as a breach of each parent’s obligation to encourage, promote, and facilitate the child having a close and meaningful relationship with each parent.
Withholding a child who is not at risk of harm or danger may alienate that child from the other parent, which may negatively impact the child’s emotional and psychological well-being. It is vital that when making any unilateral decisions regarding a child’s care arrangements, parents ensure that the child’s interests are championed at all times, even when this may not align with the interest of either of their parents.
In cases where a parent is considering withholding a child from the other parent, it is vital to seek legal advice to determine the best course of action.