Family Law and Contact with Children
In the complex landscape of family law, few issues are as emotionally charged as the care of children. It is common for parents to question what they are legally obliged to do. They also question their decision-making rights in relation to their children.
For example, parents often struggle to understand whether they can stop someone from contacting or seeing their child. This may involve the other parent or another significant person, such as a grandparent.
The law does not always provide clear-cut answers. However, there are principles that help determine these issues.
Contact with the Other Parent
In Australia, the law concerning the care of children is generally governed by the Family Law Act 1975. It is applied by the Federal Circuit and Family Court of Australia. In Western Australia, it is applied by the Family Court of Western Australia.
Family law prioritises the best interests of the child above all else.
Historically, courts have favoured arrangements that allow ongoing contact with both parents. This applied even in cases of parental conflict or estrangement.
This was not because parents had “rights” over their children. Instead, the law presumed equal shared parental responsibility.
Under this approach, both parents had equal decision-making power. Courts therefore generally avoided preventing contact between a child and either parent.
However, this presumption was always rebuttable. Courts could limit or restrict contact where necessary to protect the child.
These cases often involved abuse, neglect, substance abuse, domestic violence, or other risks to the child’s safety or wellbeing.
Outside the court, parents may also limit contact if there is a genuine safety concern. However, this should only be done when necessary.
If a parent believes contact is being wrongly restricted, they can apply to the Court. The Court will then assess the evidence and decide based on the child’s best interests.
More recently, legislative changes have shifted the approach. The presumption of equal shared parental responsibility has been removed.
Courts now consider a broader range of factors when deciding parental contact. These include:
- Safety of the child and caregivers
- The child’s views
- Developmental, psychological, emotional, and cultural needs
- The capacity of each parent to meet those needs
- The benefit of maintaining relationships with parents and significant people
Despite this shift, courts still rarely order no contact with a parent. Research shows that, in most cases, it is in the child’s best interests to maintain relationships with both parents.
For this reason, restricting contact should be a last resort. It should only occur where it is necessary for the child’s welfare.
Courts also take a serious view of parental alienation. This refers to situations where a child is influenced to reject the other parent.
Contact with Other Significant People
Family law focuses on the wellbeing of the child. This includes relationships with people beyond the parents.
For example, a child may have a strong relationship with a grandparent through regular contact.
Courts recognise that these relationships can be important for a child’s wellbeing.
There is no legal principle of “grandparent rights” in Australia. Instead, the focus remains on the child’s best interests.
If a grandparent is abusive or harmful, the Court may restrict contact. This applies even if the child expresses a desire to maintain the relationship.
However, a parent should not restrict contact simply for personal reasons or punishment where a positive relationship exists.
Conclusion
At all times, parents must consider the best interests of the child when deciding who can have contact with them.
If this principle is followed, a parent may restrict contact where appropriate. However, another party may challenge this decision in Court if they have standing.
The Court will then assess what is in the child’s best interests. This includes considering the impact of any relationship, including with parents or other significant people.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 5576 9999 or email
[email protected].
