Understanding your rights: What to do if access to your child is denied

During a divorce, or separation, one parent may attempt to restrict the relationship between the other parent and a child, or deny access entirely. Whilst a parent may believe they have valid reasons for doing so, it is very rare for a court to make a no access order. For example, if a parent refuses to pay child support or does not visit their child in accordance with the custody agreement this will not typically constitute grounds for a court to deny access to a child. 

What to be aware of

Parenting orders 

If a parent seeks to limit or prevent the other parent from spending time or communicating with their child, they will generally be required to apply to the Family Court for parenting orders. Other relatives, including grandparents and extended family members may also make an application. A parenting order is enforceable by the Court. 

Best interests of the child

In determining parenting arrangements, the Court is guided by the fundamental principles of the Family Law Act 1975 (Cth) (the Act) for married couples, and similar provisions within the Family Court Act 1997 (WA) for unmarried couples. Section 60CA requires the Court to have regard to the best interests of the child as a “paramount consideration” before making a parenting order. To determine what is in the best interests of the child the Court must take into account the following two primary considerations¹: 

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and 
2. 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 of these considerations is to be given greater weight than the first. The Court will also take into account additional considerations, including any views expressed by the child and any factors (such as the child’s maturity or level of understanding), and the nature of the relationship of the child with each of the child’s parents.² 

Equal shared parental responsibility 

When a Court makes a parenting order, the Court must apply a presumption that it is in the best interests of the child, for the child’s parents to have equal shared parental responsibility. Equal shared parental responsibility means that both parents need to consult with one another on major long-term decisions of their children (including health, education, and living arrangements). The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse, or family violence. 

A parent who is awarded sole parental responsibility, will have complete responsibility for all of the major long-term decisions of the child, without the need to consult the other parent. 

Equal shared time order 

Shared parental responsibility will not necessarily mean that the child will spend equal time with each parent. The Court may make orders for the child to live primarily with one parent, and allow the other parent to only have “substantial and significant time” with the child³, or limited supervised time with the other parent. 

No access parenting orders 

It is rare for orders to be made in parenting proceedings which afford no time to one parent (commonly referred to as a “no access parenting order”), and generally such orders will only be made in exceptional circumstances. A no access order is discouraged in Australia and will only be ordered as a last resort. Denying a child access to a parent may have serious, long-term repercussions for the child and the parent. 

Limiting access 

As a general rule, a Court will consider the circumstances of the matter and make a determination as to what is in the best interests of the child, balancing the benefits of the child having a meaningful relationship with their parents and the need to protect the child from harm. Even if there is evidence that a parent has a history of violence or substance abuse, this may not be sufficient grounds for a Court to deny access to the child altogether. In determining whether to make a no access order, a Court is required to consider whether any safeguards could be implemented to mitigate an unacceptable risk to the child. For example, a Court may make an order that the children spend time under certain conditions or under the supervision of a person agreed to by the Court, including a relative, a close friend or a qualified professional. If appropriate, the implementation of safeguards will be considered preferable over a no access order. 

Relevant court decisions 

West v West 

In the case of West v West, the father sought equal shared parental responsibility and a week-by-week custody arrangement. The mother opposed his application and sought sole parental responsibility of the children. The Independent Children’s Lawyer (“ICL”) wholly supported orders sought by the mother. 

The Court gave the mother sole parental responsibility of the children and ordered that the children live with the mother. The Court also made an order restraining the father from spending any time or communicating with the children. 

The father seriously assaulted the mother on multiple occasions, including when she was pregnant and shortly after she gave birth to their first child. The mother said that she was terrified of the father and ultimately, sought refuge in a women’s shelter. After they had separated, the father abducted one of the children from the playground. The father had a history of drug abuse, and he was diagnosed as suffering from paranoid psychotic disorder that was long lasting and untreatable. He claimed to be a prophet called by God to be a spokesperson against government generally, and the Family Court, for the genocide which he believes they perpetrate against children. 

Ultimately, the Court concluded that the father presented an unacceptable risk to the children. There was no benefit to the children having any relationship with their father, given it would expose them to risk of emotional harm with no benefit. 

Cardus & Lavrick 

In this case, the mother sought sole parental responsibility for the child to live with her and that the child have no contact with the father. While the father accepted that the child should live with the mother, he sought shared parental responsibility, weekend time and telephone contact with the child. The father had been absent from the child’s life for three years and the mother had been a victim of family violence in the form of financial, emotional and psychological abuse perpetrated by the father. 

An Intervention Order was obtained by the mother against the father. The child suffered from Aspergers Syndrome and High Functioning Autism. The child’s paediatrician and psychologist gave evidence that contact with the father would severely exacerbate the child’s anxiety and would be extremely unsettling and stressful for her, to the point where she was unable to attend school. There was also evidence from both medical practitioners and the mother, as to the father’s lack of awareness and interest in learning about and catering to the child’s particular needs. 

The child was 14 years of age and consistently maintained that she did not wish to have contact with her father. The Court found that contact with the father would not confer any benefit on the child. Orders were made for the mother to have sole parental responsibility for the child, for the child to have no time and no contact with the father. 

Halkias & Whitwell 

In Halkias v Whitwell, the father sought sole parental responsibility for the child and that she live with him and spend each alternate Saturday with the mother. The mother sought for the parties to have equal shared parental responsibility for the child and that she live with the mother and spend alternate weekends and other times with the father. 

The Family Consultant observed a loving interaction between the child and each parent. There was evidence of risk of harm to the child when in the care of the mother by reference to substance abuse, violence associated with the mother’s former adult relationship, and unstable housing. The father alleged that the mother was a heavy drinker and drunk during the pregnancy and that he would often return home to find that the mother had passed out. The ICL submitted that the mother had shown that she could restrain herself from drinking when spending time with the child pursuant to the current orders. 

The Court made orders for the father to have sole responsibility for the child, that the child live with the father and spend time with the mother three out of four weekends with one visit being extended to overnight, provided adequate supervision was available. 

How to be reunited with your child 

If you are being denied access to your child you can consider two options; family dispute resolution or a recovery order. 

If you are being denied access without a family court order, consider family dispute resolution or seek immediate legal advice. You may be able to negotiate time with your child (or children) on an interim basis, even if it’s under supervision in the short term. 

If you have parenting orders from the Court, which say that the children lives with you, then you may be able to apply to the Court for a recovery order for the return of the child to your care. If you do not have parenting orders, you may be able to apply to the Court for orders that the children live with you, and for an order to have the children returned to your care.

1. This may include the child spending time with that parent on special occasions or school holidays and for the parent to have significant involvement in the child’s day-to-day life via telephone or video calls.
2. Section 60CC(2) of the Act. [2] Section 60CC(3) of the Act.
3. [2015] FamCA 839.