Withholding Children After Separation

Posted 27 Jul '21

My ex is withholding my kids: What do I do? 

Parenting after separation can be tough. Issues arise that you never had to face in the relationship and the parents' relationship can deteriorate to the point that all reasonable communication is lost. When this happens, all too often we see a parent decide to withhold the children from the other parent. Sometimes this is for good reason, but often not. Find out below whether your children should continue to see their other parent, and what to do if your ex is withholding your children from you.

Can I stop my kids from seeing their other parent?

The answer to this question is slightly different depending on whether or not you have a court order that outlines the children's time with each parent. Both situations are dealt with below.

Withholding the children when there is no court order

Technically, if there is no court order, then either parent can stop the children from seeing the other parent at any time. Would we recommend this? Absolutely not.

If the child is in danger with the other parent (i.e. exposed to drug use, abuse or domestic violence) then it would be appropriate to withhold the children. But if it is just a circumstance of being angry or upset with the other parent, or too inconvenient for you for the children to spend time with them, then withholding them is not the right course of action.

If you are considering withholding your children from the other parent, then you need to carefully consider your actions before doing so.  The Family Law Act clearly states that (as long as there is no danger) it is in a child’s best interests ot have a meaningful relationship with both parents. Where one parent is unable or unwilling to facilitate that relationship with the other parent, the court does not look too favourably upon them as they’re seen to be putting their own needs ahead of the children’s. Even if you don’t currently have a court order in place that says the children must spend time with the other parent at a particular time, you should always actively encourage and facilitate the relationship.

Withholding the children when there is a court order

Withholding children in breach of a court order is a serious offence. If you do so without a reasonable excuse then you can face fines, penalties and even imprisonment. Examples of a reasonable excuse could include if the children were in danger or being abused in the other parent's care. 

However, even if you are withholding your children with a reasonable excuse, be aware that you cannot just breach the order indefinitely. You must take action to bring your case back before a Judge so that appropriate variations to the order can be made. 

If you are considering withholding your children from the other parent, contact us for urgent advice before doing so. 

If my ex is withholding my children, can I just go and take them? 

This is a question we get asked a lot. The answer again is 'technically', if there is not court order. But you need to think very carefully before you.

If there is no order in place then either parent can collect the children (i.e. from day care, school or if they just come up to you for a cuddle in a park). It goes without saying you can’t break the law to get your children. This means you can’t enter the other parent’s home to take the children or physically grab or restrain anyone to get your children.

Something else to seriously consider is what will happen next. If you collect your children from school one day after the other parent has been withholding them, what is your next step? You can’t keep your children home from school forever to stop the other parent getting to them. If you find yourself in circumstances like these then you need to act fast in bringing the matter to court. If you aren't proactive in having your matter dealt with by a Judge, then you are just becoming the parent who is withholding the children. As we outlined above, the courts don't look too kindly upon this behaviour.

Can I call the police?

Of course you can, but it probably won't do you any good. When a parent is having their children withheld one of the first things they say to us is "well I'll just call the police". They're usually shocked to hear that, for the most part, the police are very unlikely to help.

Police generally do not get involved in parenting disputes and will simply refer you on to the family courts. This is because police don’t have jurisdiction in relation to family law matters, and unless the child is in clear and immediate danger in one parent’s household, they don’t have the authority to just remove the child and hand them over to someone else.

Generally speaking, even if you have a family court order in place, police still won’t get involved. The only order that requires police involvement is a recovery order. This is because that order is specifically directing police to go and collect the child and return them to a specified parent or guardian.

Outside of enforcing a recovery order, police can only assist you by conducting a welfare check. This means they go to the other parent’s residence and speak with the other parent and the child, assess the home and determine if the child is in immediate danger. Unless the child is in immediate danger, then there is nothing else they can do. 

Can I get a recovery order?

Whether or not you can get a recovery order depends on the circumstances of your case. If you already have an order for the children to live with you and the other parent takes the children and refuses to return them, then you can apply for a recovery order.

If you don’t have an order in place then the court will look at who is the primary parent, the age of the children, and what the arrangements for the children have been up until that point. If the child or children have been living primarily with the other parent and spending time with you, but the other parent then refuses to deliver the children, then it is unlikely an application for a recovery order would be successful. This does not mean you cannot apply for parenting orders, but that application would not be put before the courts urgently (like an application for a recovery order would).  If however you have been separated for a while and the children have been living primarily with you during that time, then it’s far more likely an application for a recovery order would be successful.

There are a number of technical legal requirements that need to be met when you are applying to the court for a recovery order. To make sure your documents are drafted correctly, and the order is made on the first court date, contact us for help. 

Advice for parents

If your children are being withheld from you, then the key advice we give to our clients is not to give up. Court can sound like a daunting process, but in some cases it is the best tool you have to secure your relationship with your kids.

Only 3% of cases that go to court result in one parent not spending any time with the children. This means if you take the matter to court there is a 97% chance you will be reunited with your kids. But if you give up now, there is a 100% chance you won't see them again.

JR Burns Law has extensive experience dealing with cases where one parent is withholding the children. If you need help, contact us on 07 3317 8322 for a free chat with our principal solicitor.  

Please note the content of this post is information only and not legal advice.  If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.