Keeping a Child From the Other Parent: What to Consider Before You Act
When you're worried about your child's safety, your first instinct may be to stop them from going to the other parent. That instinct is understandable, but the decision has legal consequences, and how you handle it now can shape the outcome of any parenting case that follows.
There is no blanket rule that says you can or can't. The answer depends on your circumstances, whether court orders are already in place, and how strong the evidence of risk is. Unless it's an emergency, get legal advice before you stop contact.
What the court will focus on
Parenting disputes in Australia are decided by the Federal Circuit and Family Court of Australia. Under section 60CA of the Family Law Act 1975 (Cth), the child's best interests are the paramount consideration. The question is what serves the child, not what feels fair to either parent.
Since the 2023 reforms took effect in May 2024, the law no longer starts from a presumption about how parental responsibility should be shared. Each family is assessed on its own facts.
That matters if you're thinking about withholding a child. You may sincerely believe it's in their best interests. But the court won't judge your decision by how you felt at the time. It will look at whether the decision was objectively reasonable on the evidence available to you.
When there are no parenting orders
Without court orders, neither parent has an enforceable obligation to make the child available to the other. In practical terms, you can stop contact.
That doesn't make it the right decision, and it doesn't protect you if the matter later goes to court. Before you act, ask yourself honestly:
How serious is the risk? The High Court has said a parent should not be allowed time with a child where that time would expose the child to an "unacceptable risk" of harm. Concern or discomfort alone may not reach that threshold.
What does the child lose? The court will weigh the risk against the value of the child's relationship with that parent.
Is there a middle ground? Supervised time, changeover arrangements, or conditions such as no alcohol or drug use before or during visits, or keeping a particular person away from the child, may manage the risk without ending the relationship.
What is the long-term effect on your child? Losing contact with a parent can have lasting emotional consequences, even when it's done to protect them.
If you decide contact should stop, it shouldn't stop there. You should get legal advice promptly and, where appropriate, apply to the court for orders that formalise protective arrangements.
When parenting orders are already in place
Once orders are made, both parents must follow them. If you don't make your child available as the orders require, you may be found to have contravened them.
A contravention can be excused where you had a reasonable excuse, for example, where you reasonably believed it was necessary to protect your child's health or safety, and the withholding lasted no longer than necessary. If the court finds there was no reasonable excuse, consequences can include make-up time, costs orders, fines, and in serious or repeated cases, imprisonment.
It's also worth considering whether your concerns are new. If the same issues were raised and considered when the orders were made, the court may be less receptive to them being used as a reason to depart from those orders now.
Interim wins are not final outcomes
Many parents who withhold a child do receive protective orders early in proceedings. That's because, at the interim stage, the court has limited time and can't fully test the evidence, so it tends to err on the side of caution where risk is alleged.
At a final hearing, the evidence is examined in far greater detail. If the court ultimately finds the risk was not established, or did not justify cutting off contact, the withholding parent can face serious criticism. In some cases, the court may conclude the withholding itself harmed the child, particularly where it forms part of a broader pattern of undermining the child's relationship with the other parent. Outcomes in those situations have included significant changes to where the child lives.
Equally, where the evidence does establish a genuine and ongoing risk, courts have been prepared to make orders that the child spend no time with a parent at all. Each case turns on its evidence, which is why an honest, early assessment of that evidence is so important.
If you're concerned right now
If your child is in immediate danger, call 000.
Speak to a family lawyer as early as possible, ideally before you stop contact.
Keep a clear, factual record of your concerns, including dates, what happened, and who was involved.
Act consistently. If you raise serious concerns but don't follow them through, the other parent may argue you are simply unwilling to support their relationship with the child.
How Evans & Wislang can help
Our family law team can give you a frank assessment of your situation, explain your options, and help you take the right steps to protect your child, including urgent applications where needed. Eligible clients may also be able to access funding for their family law matter through our partnership with JustFund.
This article is general information only and is not legal advice. For advice about your circumstances, contact our team.