Dealing with the denial of access to your children by an ex-partner can be a painful experience. It’s natural to feel helpless and frustrated, but there are steps you can take to regain access to your children.
We’ll walk you through your options, and your parenting rights in this scenario, including taking the matter to court.
I miss my kids. What can I do if my ex won’t let me see my children?
If your ex is not allowing you to see your children, there are steps you can take to address the situation.
If you don’t have court orders but your children primarily lived with you before their removal, you can seek an urgent Recovery Order from the Federal Circuit and Family Court of Australia or apply for one in any Magistrates Court.
It’s crucial to address any allegations of drug or alcohol abuse if that is the reason your ex has taken the children away. Cease any misuse of substances and consider seeking help through therapy or support groups like aa.org.au or na.org.au.
If there are allegations of child abuse, start keeping a diary of your interactions with the children and other parent and report any concerns to your local child protective services department.
In cases involving family violence orders conflicting with parenting orders, the parenting order takes precedence. Family Dispute Resolution (FDR) is typically compulsory in Australia for unresolved parenting disputes, but there are exceptions in cases of abuse, violence, recent breached orders, or urgent circumstances.
It’s important to familiarise yourself with your legal rights and seek appropriate legal advice to navigate these complex situations effectively.
What is FDR?
Family Dispute Resolution (FDR) is a process that helps separated or divorced families resolve disputes and come to an agreement regarding parenting arrangements, property settlements, and financial matters without going to court.
It involves the help of a neutral third party, known as a Family Dispute Resolution Practitioner (FDRP), who assists parties in identifying the issues in dispute, facilitating communication, and exploring options for resolution.
Is FDR compulsory?
FDR can be a voluntary process or may be required by the court before initiating legal proceedings. FDR provides a less hostile and more collaborative approach to dispute resolution, allowing parents to work together to reach an agreement that meets the best interests of their family.
Do you need court orders?
If you do not already have court orders in place that govern parenting arrangements, you may need to apply for court orders. This can be a necessary step in regaining access to your child or children.
Court orders establish the rights of children and the responsibilities of each parent concerning their children. If you already have court orders and your ex-partner is denying you access to your children, you may likely need to take the matter to court. You must, unless the Court Orders are less than 12 months old, first participate in Family Dispute Resolution unless your circumstances fall under one of the exceptions referred to above.
Child custody: parenting rights and responsibilities
Parents have shared responsibility for their children’s welfare and for making long-term decisions about the child. Parenting time is the time your child/ren spends with each parent.
Equal Shared Parental Responsibility vs Parenting Time: what’s the Difference?
Equal shared parenting responsibility means that both parents have an equal say in the important decisions regarding their child’s upbringing, such as where the child goes to school or which religion they follow. However, this doesn’t mean that the child must spend equal time with each parent.
Parenting time is the period a child spends with each parent, which can be agreed upon by the parents or set by the court. When making parenting orders, the court considers the child’s best interests, especially their safety and wellbeing.
Age of the child
Under Australian family law, children have a right to enjoy a meaningful relationship with both their parents. There is no minimum age for a child to be able to express their views about where they would like to live in the instance of a parenting dispute. Nor is there a set age at which a child gets “to choose” where they live.
A court is required to give greater weight to the consideration of the need to protect children from harm but may take into account the child’s age and level of maturity where the child has expressed any views about where they want to live.
Both parents have a duty to maintain and support a child financially after a separation, regardless of who the child lives with. Parents can come to an informal arrangement between themselves, or apply for a child support assessment.
The Department of Human Services administers the child support program, assisting parents to provide financial support for their children.
How do I get to spend time with my child?
In Australia, if you and your ex-partner cannot come to a parenting agreement and have genuinely attempted to resolve the dispute via FDR (unless FDR is inappropriate in your circumstances), then you can apply to the court for orders regarding whom the child lives with or spends time with.
Before coming to a decision, the court needs to consider what is in the best interests of the child/ren.
Sole parental responsibility is when one parent has full legal decision-making power to make all long-term decisions regarding the welfare of the child/ren. This doesn’t necessarily mean equal-time parenting arrangements won’t be put in place or that the child won’t spend time with the other parent.
Grounds for equal shared parental responsibility
Typically, the court presumes that equal shared parental responsibility is in the best interests of the child/ren, and usually grants this to both parents, which means they share responsibility for making all long-term decisions regarding the child/ren. Where this is the case parents must jointly make these important decisions. In these instances, children also usually spend equal time with each parent or substantial and significant time with the parent that they do not primarily live with.
If one parent thinks that it is not in their children’s best interest to spend time with the other parent, they can apply for the child to live with them and spend no time with the other parent, also seeking sole parental responsibility for the child for decision-making.
Reasonable grounds for seeking sole parental responsibility include substance or alcohol abuse, family violence that places the child at an unacceptable risk of harm, a severe mental illness that affects the ability of the other parent to care for children, or a complete inability to communicate with the other parent.
When seeking sole parental responsibility in Court, the parent making the allegations is responsible for providing convincing evidence or witnesses to prove their case.
Taking it to court
If negotiations and family dispute resolution do not work, you may need to take the matter to court.
How the court decides a child’s best interests
When deciding what is in the child’s best interests, the court considers factors such as the child’s age, relationship with each parent, their health, and the children’s views. The Court considers, in the absence of abuse, risk of abuse, or neglect, that children should have meaningful relationships with both parents to the maximum extent possible and that parents should enjoy equal shared parental responsibility.
What happens if we need to change our parenting arrangement?
If you would like to change existing parenting arrangements or court orders, you can apply to the court for a variation or enter into a parenting plan (or even new consent orders). If you apply to Court, you will need to show a material change in circumstances has occurred in order for the Court to revisit any existing parenting orders.
What to do if you’re unable to see your children
If your ex is preventing you from seeing your child, it’s essential to remain calm and avoid engaging in conflict with your ex-partner.
You should keep trying to contact your ex-partner to arrange visitation. Keep any existing arrangements and keep showing up for your child/ren.
Keep a journal of every interaction, including each time you show up for handover, the time, and whether your child was made available or not.
Document all communications between the two of you, keeping a record of all messages, emails, and texts between you and your ex regarding parenting arrangements. Each time you attempt to see your child/ren, put it in writing – by email, text message, or using a family messaging app.
This documentation can be useful in court proceedings. Keep in mind that your ex is likely keeping a record of everything you commit to writing too, so make sure to keep your communication calm and avoid getting angry or disrespectful.
If you do see your child/ren, make sure not to question them about what your ex-partner might be saying to them or about you. While this is a difficult time, it’s still paramount to shield your child/ren from any adult conflict.
This can be such a stressful time, make sure to surround yourself with support and use it in times of need. Whether that’s family, friends, a support group, or counselling services.
Make a parenting plan
If you are on speaking terms with your ex and they are willing to negotiate parenting arrangements, you can reach an agreement and record it in writing as a parenting plan, although this may not be the best option if you need something enforceable in a Court.
Parenting Orders are a set of orders about parenting arrangements for a child made and approved by a Court. The orders can be made by consent of both parents (no one goes to court) or by applying to the Court on your own. Orders are legally enforceable by the Court.
If you are trying to avoid going the legal route, you can try talking to your ex in a safe environment and expressing your concerns.
If you are in contact with your ex and they are willing to try, you may attend Family Therapy counselling sessions together, possibly including your children.
You can also see a psychologist together, aiming to resolve any unresolved emotional issues that may be causing the denial of access. Family Therapy without the children can be focused on resolving the barriers to positive co-parenting.
You can also attend Family Mediation, also known as Family Dispute Resolution to try and come to a parenting agreement.
Finally, get legal advice as soon as possible to make sure you’re doing everything in your legal power to speed up the process of seeing your child/ren. When it comes to resolving issues with an ex, particularly regarding parenting rights, seeking legal advice can be an incredibly beneficial step that can arm you with the tools and advice you need to proceed confidently.
What can I do if my ex is keeping my child from me?
If your ex won’t let you have access to your child, these are your options:
- Retain a lawyer to negotiate on your behalf.
- Invite the other parent to Family Dispute Resolution (FDR) where you will both try to reach an agreement in writing about parenting arrangements – these written arrangements can be a Parenting Plan or, after completing additional paperwork, can be made into Consent Orders upon lodging an Application for Consent Orders with the court. Your time with the children should recommence once an agreement is reached.
- Keep a diary of each day your children would ordinarily spend time with you but are not made available by the other parent in accordance with a prior agreement, Parenting Plan of Consent Orders.
- Apply to the Court to resolve the dispute – if the other parent has relocated with the children you may be able to seek a Recovery Order.
- If you already have court Orders (eg. Consent Orders), make an Application for Enforcement of those Orders or alternatively, file a Contravention Application (the latter are quasi-criminal proceedings and are highly technical so be wary of taking this course without first obtaining legal advice).
Can my ex prevent me from seeing my child?
There are certain circumstances where a parent can prevent the other parent from seeing their child although these circumstances are usually temporary:
- A simple refusal to allow the children to go into your care – if this is the case, it is up to you to do something about it. Your first port of call is to resolve the dispute by inviting the other parent to participate in Family Dispute Resolution where an independent and experienced person can assist you both to reach an agreement that is in the best interests of your child/ren to determine that they can spend time with you, how regularly and when.
- A parent has obtained a family violence protection order (eg. Intervention Order, Domestic Violence Order) naming the child/ren as a protected person/s. In this situation, you will only be able to spend time with your child/ren in accordance with any Court Order or Parenting Plan. If you don’t have either of these, you need to get one – you need to invite the other person to FDR and enter into Consent Orders or a Parenting Plan.
- The other parent has relocated with the children and won’t let you see them. If the parent has made allegations of family violence you may be exempt from participating in FDR. If not, you need to participate in FDR. If FDR fails to result in an agreement, your only other option is to ask the Court to resolve your parenting dispute.
- Child Protection Proceedings – if the children are now with the other parent as a result of Children’s Court Proceedings, you will need to cooperate with State protective services in order for re-unification to occur. The family courts don’t have jurisdiction to help you in this situation.
- There are serious allegations by a parent of physical, verbal, emotional, or psychological abuse or neglect of the child/children. In this case, it would be best to seek urgent Orders from a family court. FDR may not be considered appropriate in these circumstances by the FDR mediator.
Can I sue my ex for not letting me see my child?
Technically – yes.
You can apply to the family courts to resolve the parenting dispute. However, you are unlikely to recover any legal costs you incur in doing so.
If, however, the other parent is breaching court Orders, you can seek quasi-criminal penalties against the other parent by filing a Contravention Application. In essence, one parent charges the other with having breached one or more of the court Orders. This is a highly technical field of Family Law and it is recommended anyone considering this course first obtain legal advice.
You can also seek to enforce any existing Court Orders regarding your time with the children by filing an Application in a Case. The Court will then look to enforce the existing parenting Orders unless there are serious circumstances which have arisen such that the Court considers varying the existing Court Orders. This does not necessarily mean you won’t be able to resume spending time with your child/ren.
Can I call the police if my ex won’t let me see my child?
Yes – you can.
However, the police can’t intervene and recover your child/ren for you unless you have a valid Recovery Order issued by the court.
The police can check on the welfare of your child/ren (“a welfare check”) and speak to the other parent in an effort to get them to let you see your children. Be careful of police involvement – consider that your children may be exposed to or be present when the police arrive to speak with the other parent. This may frighten your children.
The only other situation where the police would intervene is where it is obvious to them that the children are at serious risk of abuse, harm, or neglect if they observe this when speaking to the other parent/attending at their home.
What legal actions can I take if my ex won’t let me have our children even though I have court Orders that the children live with or spend time with me?
Your options are to:
- Invite your ex to Family Dispute Resolution (FDR). If an agreement is reached, have it made into Consent Orders or a parenting plan.
- Apply to the Court for an exemption from attending FDR and seek a Recovery Order.
- Apply to the Court for an exemption from attending FDR and seek enforcement of your Parenting Orders.
Why should I give money to my ex when I am not allowed to see my child?
If there is a child support assessment in place you are required to pay the assessed amount to your ex or to the Child Support Agency. If you stop paying child support you will fall into arrears and the Child Support Agency may garnishee your wages.
Keep in mind that if you end up in court proceedings seeking time with your child/ren, the court will consider whether you have continued to pay child support. It is a really bad look if you have stopped financially supporting your child/ren and the court will take any such failure into account when considering the best interests of your child/ren.
Your ex-partner will still need to meet the expenses of housing, feeding, clothing, and educating your children and this is costly. Your children need your financial support.
Can I stop child support until I see my child again?
Yes, you can, but it’s not a good idea. Why?
Your children will be the ones to suffer if there is less money for their education, daycare, food, accommodation, clothing costs, etc. Your ex-partner might tell your children you have stopped supporting them financially and they may be hurt by this.
Next, the Child Support Agency may garnishee your wages.
Thirdly, if you end up in court proceedings, the court will consider you as having not met your responsibilities and obligations to financially support your children and as having not acted in their best interests.