A question that we are often asked as family lawyers is what to do when the other parent stops you from seeing the children.
We understand that this can be one of a distressing situation. It is not beneficial to either party involved, particularly the children, who are often caught at the centre of disagreements between their parents.
What you can do next will depend largely on whether you have:
- formal Parenting Orders;
- a Parenting Plan; or
- only an informal verbal agreement.
Each arrangement carries different legal rights and obligations, and understanding the difference is important in determining your options.
Parenting Orders
If you have Parenting Orders, meaning you have a set of orders sealed by the Federal Circuit and Family Court of Australia, those Orders are legally binding and enforceable. This means that both parents are bound by the terms of those orders and have a positive obligation to ensure that they adhere to it. The only exception to this is if there is a “reasonable excuse” for them not to do so. For example, a parent may have a reasonable excuse if they genuinely believe that the children are at risk of harm, abuse or family violence. However, disputes between the parents, frustration, or poor communication are generally not sufficient reasons to withhold a child and can result in the withholding parenting facing penalties.
If the other parent is refusing to comply with Parenting Orders, you may have several options available to you, including:
- attempting to resolve the issue through communication or mediation;
- filing a Contravention Application; or
- seeking recovery Orders.
Each option offers varying remedies. Therefore, it is crucial to consider which option is most suited for your circumstances.
For instance, a Contravention Application asks the Court to determine whether the other parent breached the Parenting Orders without reasonable excuse. If the Court is satisfied that a breach occurred, it may impose various consequences depending on the seriousness of the conduct. These may include make-up time with the children, participation in parenting programs, fines, costs Orders, a good behaviour bond or imprisonment. The court can also make an order at that time to reinstate the previous orders.
If there has been a breach of a court order, it is critical that you obtain legal advice from a family lawyer as soon as possible, as delays can negatively impact your position.
Parenting Plan
Many parents reach agreement and record that agreement by way of a Parenting Plan rather than formal Court Orders.
A Parenting Plan can be useful and offer flexibility for parents to record arrangements without commencing Court proceedings. However, unlike Orders, a Parenting Plan is generally not legally enforceable.
This means that if your former partner stops following the Parenting Plan, the Court cannot automatically enforce the arrangements in the same way they can enforce Parenting Orders. However, this does not mean that the Parenting Plan is void, it just means that the manner in which the court may choose to act will differ. You are still able to commence proceedings seeking the recovery of the children, and in those circumstances the Parenting Plan can assist the court to consider the historical care arrangements for the children and whether it reflected an arrangement that was working for the children.
If disputes arise repeatedly, or one parent is no longer following the Parenting Plan, it is generally appropriate to formalise the arrangements through Consent Orders.
Informal Verbal Agreement
Some separated parents never formally document parenting arrangements at all. Instead, arrangements develop informally over time through conversations, text messages, or verbal agreements.
While these arrangements may work well, they can become problematic if conflict arises later.
An informal verbal agreement is not legally binding or enforceable. This means that if one parent suddenly refuses to allow the other parent to see the children, there may be limited immediate legal recourse available. If the care arrangement has existed for a while, then you could commence parenting proceedings, however, it can leave the parent without access to the child at a disadvantage.
If the other parent withholds the children from you, here are some things that you should consider doing
It is often important to act promptly and carefully. Try to preserve evidence of the existing arrangements where possible.
The first step is often to attempt mediation. If an agreement can be reached, you can then consider formalising those arrangements by way of Consent Orders.
If an agreement cannot be reached, an Application may need to be filed in the Court seeking Parenting Orders, enforcement or recovery.
Importantly, the longer a parent goes without spending time with their children, the more difficult it can become to restore previous arrangements. For that reason, obtaining early legal advice from a family lawyer can help you understand your rights, your obligations, and the options available to you.
Every parenting matter is different. The appropriate course of action will depend on each family’s situation or circumstances
Where possible, it is important to try to minimise conflict and focus on arrangements that promote the children’s best interests.
For further support or legal advice, contact the family law team at Mellor Olsson.