If your partner is withholding your children, remember to try to stay calm and document everything. This may include dates, times, messages and every attempt at contact or any attempts to try to see your child. This documentation in relation to your partner or child can be crucial.

You can seek legal advice before deciding the next steps; legal advice can assist with understanding legal rights and can help with reaching an agreement without proceeding to court.

Attempt to have calm, respectful communication with your partner or via a trusted third party who can assist with communication. 

If there are parenting arrangements, you can enforce the parenting arrangements; however, it will depend on what type of agreement it is.

If there is an informal agreement or parenting plan, mediation will need to be organised to discuss issues that are causing the other parent to breach the agreement. Negotiation of a new parenting agreement may be necessary if the existing agreement cannot be followed.

If there are parenting orders or consent orders, attending mediation may be required, unless an exemption applies. If mediation is unsuccessful or an exemption applies, you may be able to apply to the court to enforce the parenting orders.

Attending family dispute resolution or mediation may be required; it is usually required before court. If mediation is not successful, a party may receive a section 60I certificate. Exemptions can apply in matters of family violence, urgency or child abuse risk. 

If mediation is unsuccessful, a party can apply to the Federal Circuit and Family Court of Australia for parenting orders setting out who the child or children will live with and who the child or children spend time with.

In urgent circumstances such as repeated withholding or risk of harm to the child, a party can seek a recovery order.  This can authorise police to locate and return the child. If you do not know where your child is, you can apply for a recovery order and a location order. If existing parenting orders that are already in place and are being breached, you may file a contravention application.  

If there are parenting orders, the parenting orders must be followed unless there is a reasonable excuse. If the parenting orders are not followed and there is no reasonable excuse, the other parent may apply to enforce the orders. The Court can impose penalties if a person fails to comply with a parenting order.  

The Court’s priority is the child’s best interests, safety and meaningful relationships with their parents. 

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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