The answer to this question slightly differs depending on whether you have Court Orders regarding care arrangements for your children or not. However, in any instance, the first step towards resolving your issue should be through mediation to avoid the costs and time delays often incurred through Court proceedings.
Mediation as a First Step
It is in your children’s and your best interests to keep your family law matter out of Court if possible. The best way to resolve interparental conflict is to attempt to communicate with the other parent about the issues you are experiencing and reach a mutual agreement on co-parenting to move forward.
If Consent Orders do not exist:
The only way to have an enforceable parenting agreement is to finalise one by way of Consent Orders. A parenting plan is not legally enforceable, although may be taken into account by the Court when considering Consent Orders. If you and your ex have no parenting arrangements currently in place, or only have a parenting plan, the only way to stop the other parent from withholding your children is to apply to the Court for Consent Orders.
If Consent Orders exist:
Orders made by consent through the Court are binding on both parents, and there is recourse to the Court if one parent is not fulfilling their obligations under the Orders. If the Orders specify time for you to spend with your children, and the other parent is stopping this from occurring, you can file an ‘Application in a Case – Contravention’ with the Court. This means you are advising the Court that the other parent has not complied with the existing Orders, and to enforce them to do so.
If the Court finds the other parent had no reasonable excuse to not comply with the existing Orders, the Court may penalise them depending on the length and severity of the contravention.
The easiest way to organise a mediation, apply to the Court for Consent Orders, or file for a Contravention Application, is with the assistance of a family lawyer. Obtaining legal advice before entering into parenting arrangements is integral to ensure what you agree to is suitable and safe for the children and yourself.
Having a lawyer to prepare your material also provides you with the best chance at succeeding in what you’re seeking from the Court. Being excluded from seeing your children can be a very tough and emotional time, so leaving the legal work to your family lawyer can significantly alleviate your stress and help you to move forward with clarity and certainty.