When emotions run high after separation or divorce, parenting arrangements can become one of the most difficult issues to resolve. In some situations, one parent may choose to withhold a child from the other parent; sometimes out of fear, frustration, or a belief that it’s in the child’s best interests.
But withholding a child from another parent without a court order can have serious legal consequences in Australia. Unless there are exceptional circumstances, it may be seen as a breach of parental rights and could ultimately backfire on the withholding parent, which can be detrimental not only to their case in court but also to the child’s long-term well-being.
So what does the law actually say? And what should parents do instead? We break down what the law says about withholding a child, when it may or may not be justified, how the courts respond to these situations, and what to do if you’re facing a similar situation.
What the Law Says About Parental Responsibility
Under the Family Law Act 1975 (Cth), both parents are presumed to have equal shared parental responsibility for their children unless the court decides otherwise. This means that major decisions, such as where a child lives, goes to school, or receives medical care, should be made jointly.
In the absence of a court order, one parent does not have the legal right to unilaterally withhold a child from the other parent. Doing so without reasonable cause may amount to a breach of parenting orders (if they exist) or be viewed unfavourably by the court when parenting arrangements are eventually formalised.
Even where no formal orders are in place, both parents are expected to act in accordance with the child’s best interests. As per section 60CC of the Family Law Act, this is the central principle in all family law parenting matters.
Keeping a Child Away from the Other Parent Can Backfire
While keeping a child away from the other parent might feel like the safest or most reasonable option in the moment, it can backfire, leading to unintended legal and emotional consequences.
The legal risks
Without court authorisation, keeping a child from their other parent may result in:
- The court making negative inferences about the withholding parent’s behaviour
- A contravention application being filed for breach of existing parenting arrangements
- The court making adverse parenting orders, potentially reducing that parent’s future time with the child
- Allegations of parental alienation. These are serious allegations that can influence custody outcomes
If withholding is done maliciously or manipulatively, it can erode trust in co-parenting relationships and undermine a parent’s credibility before the court.
For a deeper look at the risks and remedies available when parenting orders are ignored, read our article on what happens when parenting orders are breached.
When Withholding May Be Justified, and What You Must Do
There are some serious situations where withholding a child may be necessary, such as where there is family violence, abuse, or a genuine risk to the child’s safety. In these cases, acting to protect the child may be justified.
However, even in these circumstances, the parent must take immediate legal steps to formalise their concerns. That could mean applying for:
- An urgent parenting order under the Family Law Act
- A recovery order if a child has already been removed
An intervention order or domestic violence order (in Queensland, a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld)).
Failing to take legal action can still result in the withholding parent being seen as uncooperative or as acting in bad faith.
What to Do If You’re Being Denied Access
If your child is being withheld from you without a court order or parenting order in place, you may apply to the court for parenting orders to formalise your rights and time with your child. If there is a parenting order and it’s being ignored, you can apply to enforce it.
In either case, documentation, communication logs, and evidence of your attempts to maintain a relationship with the child will be helpful. It’s also important to remain calm and avoid retaliatory actions, as your conduct will likely be scrutinised by the court.
You may also wish to consider family dispute resolution (FDR) or mediation before escalating the matter legally. In some cases, a parenting agreement can be reached without the need for court intervention, but this only works where both parties are willing to engage constructively.
Dangers of Taking Matters Into Your Own Hands
Some parents assume that if the other parent is acting unfairly, they can “balance the scales” by withholding a child from the parent without a court order in retaliation. But this almost always makes matters worse. Not only can it affect your standing in court, but it can also cause emotional harm to the child, who may feel caught in the middle or forced to “choose sides.”
The Family Law Act is designed to protect the child’s right to maintain a meaningful relationship with both parents, while also protecting them from harm. Courts look poorly on behaviour that undermines this balance.
Withholding a Child from Another Parent Without Court Order: Get the Right Advice Early
If you’re withholding a child due to serious concerns, or if your child is being kept from you, it’s essential to act lawfully, not emotionally. Courts take a dim view of any parent who tries to “weaponise” a child in separation, and even well-intentioned decisions can backfire if not supported by legal process.
At Pullos Lawyers, we understand how complex and emotionally charged these matters can be. Our experienced family law team resolves parenting disputes in a way that prioritises the child’s best interests and protects your legal position. With offices in both Brisbane and the Gold Coast, we invite you to contact us or call us on (07) 5526 3646. Whether you need help applying for a parenting order, responding to a contravention, or negotiating safer parenting arrangements, we’re here to support you with compassion and clarity.
For related reading and resources, you can visit our parenting portal or read our articles on how to change a final parenting order, the difference between parenting plans and parenting orders, and what you need to know about parental child abduction in Australia.
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