Key Takeaways
- Denying access to a child in Australia is generally not allowed and should only occur in extreme circumstances and if it’s in the child’s best interest;
- Limiting the relationship and completely denying access between a child and parent can have a significant impact on the child and the parents, potentially leading to parental alienation;
- If there is no immediate danger to your child, your first course of action should be to seek legal advice from a family law legal professional to understand your options.
Child Access and Family Law
Under the Australian Family Law system, children have the right to have a meaningful relationship with both parents, as long as it is safe for them to do so. While children have this right, the relationship the parents have with each other can be an obstacle to this actually occurring.
During a separation or divorce, it’s not uncommon for a parent to try to limit or even prevent contact between their child and the other parent. In some cases, the parent denying access to a child may have what they believe to be valid reasons for doing so, however, denying a parent access to a child is a complex issue that can have far-reaching consequences for the parents and child.
In this article, we’re going to explore the topic of denying access to a child, including the legal grounds for denying access, the process to deny access, and what you should do if you’ve had your access denied.
What is meant by access to a child?
The term access commonly refers to a parent having contact or visiting arrangements with a child. This contact could be through regular communication or could involve spending time together too. Often it refers to the arrangements for the parent of the child who may not have primary custody of the child.
The terminology used in Australian family law has undergone changes over time, and access was interchangeably used with the term “contact” and used alongside the term “child custody”. Child custody relates to the living arrangements of the child, while contact and access relate to how the child would divide their time between the parents. These terms all generally fall under “parenting arrangements”, however, in this piece we will use “access” as this term is still commonly used by the general public.
Is withholding a child the same as denying access to a child?
Withholding and denying access to a child are similar behaviours, but there are some differences between the two.
Withholding a child refers to the act of preventing the other parent from spending time with the child without completely denying access, rather there are usually conditions attached. For example, a parent might agree to allow the other parent to see the child, but only under certain conditions, such as only in public places or only during specified times. Withholding a child can also refer to situations where one parent fails to facilitate or encourage the child’s relationship with the other parent.
Denying access, on the other hand, refers to the complete prevention of a parent from having any contact with their child. This can be done by physically preventing the parent from seeing the child or by refusing to allow the parent to have any form of communication with the child.
Both withholding a child and denying access to a child can be harmful to the child’s well-being, and they can both contribute to parental alienation. In Australia, both behaviours are taken seriously by the Courts, and parents who engage in either behaviour may face legal consequences.
Can access ever be denied?
Yes, access to a child can be denied but only by the Court and through a court order, however, it’s not a decision that the Court will make lightly. They will review the reasons and evidence thoroughly before making this decision as it can have long-term consequences for all parties involved. Only if it’s in the best interest of the child, will access be denied.
The best interests of a child are at the centre of decision-making in family law in Australia and two primary considerations are taken into account when making these decisions. These are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second consideration takes precedence over the first.
What are the legal grounds for denying access to a child in Australia?
Denying access to a child in Australia is only likely to occur if the well-being and safety of the child are at risk – which would make it in the child’s best interest.
The legal grounds for denying access to a child in Australia may include:
- Abuse or neglect: If there is evidence of physical, emotional, or sexual abuse or neglect of a child, access to the child may be denied. For example, if a parent has a history of violent behaviour towards a child, access to that child may be restricted to ensure their safety.
- Safety concerns: If there are concerns about a child’s safety while in the care of a particular parent, access may be denied until those concerns are addressed. For example, if a parent has a history of substance abuse like taking drugs or alcohol, access may be denied until that parent completes a rehabilitation program.
- Best interests of the child: In cases where access to a child is likely to be harmful or detrimental to the child’s wellbeing, access may be denied. For example, if a parent has a history of domestic violence, and allowing access would cause the child to witness or experience further abuse, access may be denied.
What factors could influence the decision of a court to deny access to child in Australia?
Every situation is unique making it difficult to provide exact reasons as to why the court may decide whether access will be denied, however, when making the decision, a wide range of factors could be taken into account, including:
- The child’s health and wellbeing: As we mentioned above the primary consideration is always the best interests of the child. This means that any decision made by the court must be in the best interests of the child’s health, wellbeing, and development.
- The relationship between the child and each parent: The court will consider the quality of the relationship between the child and each parent and their ability to provide for the child’s needs.
- Any evidence presented by each parent: The court will also consider any evidence presented by each parent regarding their ability to care for the child and their suitability as a parent.
- ·The child’s wishes and preferences: Depending on the age and maturity of the child, the court may also take into account the child’s wishes and preferences regarding access.
If you are in a situation where you are considering applying to the courts to deny the other parent to your child access or you’ve had an application made against you, seeking legal advice is highly recommended as these matters can be complex and highly emotional to manage on your own.
What is the process for denying access to a child?
To deny access to a child legally there needs to be a court order in place. This involves a parent applying to the Court for parenting orders, usually for sole parental responsibility and no contact or access to the child.
The parent requesting the order needs to be able to demonstrate that there are reasonable grounds for the denial of access and the court will make a decision based on the evidence and information provided and whether this is in the child’s best interests.
Generally speaking, the process is as follows:
- A parent applies to the family court for parenting orders.
- Evidence will need to be provided to support the application. This could include statements from witnesses and medical or police reports.
- Notice to the other parent: The other parent must be notified of the application and given an opportunity to respond.
- Hearing: Court proceedings will take place to hear evidence from both parties and make a decision.
Can you deny access to a child without a court order?
Access to a child should not be denied in Australia without a court order, except in exceptional circumstances or in situations where there are immediate safety concerns or a risk of harm to the child. In such cases, the denying parent may need to take emergency action to protect the child, such as seeking a restraining order or contacting the police.
However, if you’re wondering if a father can just decide to take a child away from the mother/other parent or if a mother can deny a father access to the child, without legal justification, this is not allowed and may result in legal consequences, including court-ordered penalties and enforcement of court orders.
There are some scenarios in which as a parent you may want to revoke access or think it’s justified to do so, however, even in the following situations, denying access to a child is not allowed:
- The other parent won’t pay child support;
- The other parent doesn’t spend enough time with their child;
- The other parent has never engaged with the child; or
- The other parent is sometimes late when picking up or dropping off the child.
The above situations may demonstrate that the other parent shouldn’t be the primary carer of the child, however, it is unlikely that they would be considered reason enough for denying access to a child. You may be able to limit the access to the child, such as applying for supervised contact.
Legal consequences of denying access to a child without justification?
If a parent denies the other parent access to a child without a court order in place the other parent may apply to the court for a contact order or parenting order.
If the matter ends up being resolved in Court, the parent who has been denying access to the child may find that denying access has backfired for them as the Court will not look favourably upon this behaviour, unless it’s in the child’s best interest.
Whether you’re the parent with no access or the parent denying access without an order, seeking legal advice in this situation is extremely important.
Other potential consequences of denying access to a child
Denying access to a child in Australia can be one of the behaviours that contribute to parental alienation. Parental alienation refers to the psychological manipulation of a child by one parent against the other parent, with the aim of turning the child against the targeted parent. This can result in the child rejecting the targeted parent, showing hostility towards them, and refusing to have contact with them.
When a parent denies access to a child, they are preventing the other parent from having a relationship with their child. This can lead to feelings of rejection and frustration for the parent who is being denied access, and it may also cause confusion and distress for the child. Over time, if the parent continues to deny access, the child may develop negative feelings towards the parent who is being denied access and may start to align with the parent who is doing the denying.
In such cases, it is important for both parents to seek professional help, such as counselling or mediation, to try and resolve any underlying issues and work towards restoring a healthy relationship between the child and both parents.
How does the Australian legal system handle cases where access to a child is denied due to safety concerns?
If access to a child is denied due to safety concerns, the Australian legal system will take action to ensure the child’s safety. In cases of extreme circumstances where immediate action is required, the police may be involved to provide protection and enforce any restraining orders.
If the denial of access is due to ongoing safety concerns, the court may order the parent to complete a rehabilitation program or take other steps to address the safety concerns before allowing access. In some cases, supervised visits may be permitted until the safety concerns are resolved.
If you’re concerned about the safety of your child but they aren’t necessarily in immediate danger it’s a good idea to talk to a family lawyer to understand your options.
What role do the child’s wishes and preferences play in the decision to deny access to a child in Australia?
The child’s wishes and preferences may be considered in the decision to deny access to a child in Australia, but this will depend on the age and maturity of the child. The older and more mature the child, it’s possible that their wishes and preferences will be given more weight.
However, the court will ultimately make a decision based on the best interests of the child, which may not always align with the child’s wishes and preferences.
What are your options if you’ve been denied access to your child?
Being denied access to your child can be a heartbreaking and stressful scenario for any parent. Depending on whether a no-access court order is in place or not will impact the best actions for you to take if you find yourself in this situation.
No court order
If a parent’s access to a child has been denied but there is no court order that grants this, there are several options available to remedy this, including:
- Mediation: The first step may be to attempt mediation to resolve any issues and find a mutually acceptable solution.
- Court application: If mediation is unsuccessful, the parent may need to make a court application for access.
- Legal representation: The parent may choose to seek legal representation to assist them with the court application. A family lawyer experienced in parenting and custody matters is the best choice for this scenario.
A court order is in place
If a court order is in place the parent who has been denied access to a child can appeal the decision. The process for doing so will depend on the specific circumstances of the case.
Typically, the first step will be to seek legal advice to determine whether an appeal is appropriate and what grounds there may be for an appeal. An application to appeal the decision must be made to a higher court, and the court will consider the evidence presented in the original case, as well as any new evidence that may be presented.
What should I do if I want to restrict the access of the other parent to my child?
If you believe that the other parent is putting your child in immediate danger you should seek help from the police.
If there is no immediate danger but you believe that you have cause to deny access to your child, one of the first things you should do before restricting or removing any access is to seek legal advice. A family lawyer can help you understand whether you have legal grounds for applying to deny access to the child. They can also help you understand all of your options, such as to limit contact to supervised visits with a close family friend or trustworthy relative, for example.
Seeking legal advice in this scenario is extremely important because when it comes to our children we want to protect them and look after them, however, in situations of high stress and emotions, like a divorce or separation, our decision-making can become cloudy and we may not always make the best decision. It’s possible that what we think is best for our child is based on our relationship with the other parent rather than the child’s relationship with them. The consequences of denying access to a child and restricting a relationship can have long-term negative consequences for everyone.
Sort out your parenting matters with the legal team that cares
Whether you’re considering restricting access to your child, you’ve been denied access to your child, or you’re involved in any other parenting matter, here at Unified Lawyers, we’re here to help you.
Our family law team are highly qualified professionals experienced in all areas of Australian family law, including parenting and children’s matters. We can help you understand your options, we can help to negotiate on your behalf and represent you too.
Our services are available Australia-wide and we have offices in Sydney, Brisbane and Melbourne. Book a free consultation by calling us on 1300 667 461 or using the button below!
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