Can I keep my child from my ex-partner to protect their health and safety?

September 22, 2020

This article highlights the conflict parents may feel when faced with the dilemma of whether to obey their parenting Court Order or listen the needs of their child, particularly in situations where the child expresses a desire not to go to the other parent or where the child wants to attend a social activity instead.  What do you do if your child gets sick? Perhaps there are more serious concerns about threats, abuse or even family violence? Our family law team at Hutchinson Legal understand that this conflict is sometimes difficult for parents to navigate.

What constitutes a breach of a parenting court order?

If you withhold your child from the other parent contrary to Court Orders, you risk enforcement proceedings being filed by them for non-compliance. In such proceedings the other party would need to establish that you intentionally failed to comply with the Order, made no reasonable attempt to comply with the Order and have no “reasonable excuse for contravening” the Order, to be successful.

If you were found to have breached the Court Orders, the Court may then order the following:

  • You may be required to attend counselling;
  • Lost time with the child may be granted to the respective parent;
  • A Community Service Order may be made; or
  • Even imprisonment can be handed down for the most serious contraventions.

Further, if the contravention is established, you may also be ordered to pay the other party’s legal costs.

What if there are legitimate concerns for the health and safety of my child?

If you believe on “reasonable grounds” that it is necessary that time or communication with the other parent be suspended “to protect the[ir] health and safety”, you may have grounds to temporarily withhold the child.

We have listed the following to assist you in determining whether to withhold a child:

  • The mere fact that a child is sick does not in itself constitute a reasonable excuse;
  • A contravention will need to be evidenced and proven on the balance of probabilities;
  • All Orders are made subject to consideration of what is in the best interests of the child;
  • The best interests of the child are determined objectively, not by your subjective opinion;
  • The person who conducted the breach has the onus of proving that it was reasonable; and
  • The refusal of a child to go to the other parent does not constitute a reasonable excuse.

We encourage you to obtain independent legal advice before deciding to breach a Court Order to understand your options and avoid unforeseen serious consequences. If you are looking for legal advice, why not call your Family Law team at Hutchinson Legal to have a chat.

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