Sometimes, custody matters can get messy and contentious. That's why we have the family courts in place to seek the outcomes and enforce the orders that best suit the welfare of children and ensure, generally, that both parents are able to have a healthy relationship with their children.
However, the question of withholding a child from a parent in Australia often comes up. In this blog, we will cover this topic in detail.
Can you withhold your child from their other parent?
In Australia, you are required to comply with court orders regarding parental matters, and that will generally stipulate that both parties have access to a child. So, you cannot withhold your child from their other parent.
However, in some extreme circumstances, you may withhold your child from the other parent. In these cases, the welfare of the child is compromised and they could be in danger. These extreme cases usually involve:
- Situations where there is a history of family violence or abuse
- Substance abuse including drugs and alcohol
- The other parent has extreme mental health problems that may endanger the welfare of a child
If you find yourself in the above situation and feel for your safety or that of your child, obtain legal advice on the next steps before you breach court orders. It is also advisable that you try to resolve the problem with the other parent of your child informally. If you are unable to do so, it may be best to approach the court and seek to get the court orders changed to reflect your current situation.
Withholding a child from a parent - what to do if your ex is withholding your child
If the other parent of your child is withholding your child with you and there is no reasonable excuse to do so, then they are in breach of court orders.
In some circumstances, withholding a child from a parent has severe consequences if there are court orders in place.
However, if your ex-partner is holding your child from you, in almost all circumstances you have the right to remedy this to spend time with and enjoy a healthy relationship with your child.
If there are court orders in place, you can file a contravention application to the court. Here's what you'll need to file one:
- The order or agreement that has been breached
- An affidavit
- A valid s.601 certificate
There is no fee associated with filing a contravention application. However, it is important to note that this application cannot be filed through the commonwealth courts portal and it should be emailed to contraventionlist@fcfcoa.gov.au along with any supporting documents.
Once filed, you will need to serve it to your ex, who can in turn, respond to your contravention application with their own application seeking a variation of the order that they are breaching or evidence of why they have breached the order.
It is important to note that in addition to enforcing the court orders, the court may impose heavy fines on your ex, or even impose jail time. If you do not want this to happen, but want to stop your ex from withholding your child from you, you can file an enforcement application rather than a contravention.
An enforcement application will also require an affidavit filed with it and must be served to the other party via personal service.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.