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Can my ex stop me from seeing my children in Queensland?

Children

A common and highly distressing scenario we see at Bell & Senior Lawyers occurs when one parent abruptly declares, “I’m not letting you see the kids this weekend until you pay school fees,” or “I don’t like who you are dating, so the residential arrangements are cancelled.”

In Australian Family Law, children have a fundamental right to know and be cared for by both of their parents, provided it is safe to do so.1 A parent generally cannot unilaterally withhold a child to punish their ex-partner, force child support payments, or exercise control.

This guide explains what happens when a child is withheld on the Gold Coast, the concrete legal steps you can take to see your children, and the very narrow circumstances where withholding a child is actually legally justified.

Scenario 1: Withholding a Child When There Are NO Court Orders

If you and your ex-partner separated recently and only have an informal or verbal agreement (even a written Parenting Plan signed at mediation), neither parent has a superior legal right to the child.

Under the Family Law Act 1975, both parents share equal parental responsibility until a court orders otherwise. This creates a highly volatile legal grey area.

The Risks of “Self-Help”

Because neither parent has a binding court order, if your ex-partner picks the children up from school in Southport and refuses to return them to your house in Robina, the Queensland Police will generally decline to get involved. The police view this as a civil family dispute, not a kidnapping, because both parents have equal rights to the child.

What You Should Do immediately

If your child is withheld and you have no orders, you must take urgent legal action:

  1. Apply for Parenting Orders: You need to file an application in the Federal Circuit and Family Court of Australia (FCFCOA) to establish a binding, enforceable schedule.
  2. Seek an Urgent Recovery Order: If you are the primary carer and the child has been snatched or withheld after a weekend visit, we can file an urgent application for a Recovery Order. If granted, this order formally authorises the Australian Federal Police (and by extension, the Queensland Police Service) to locate and return the child to you.

Scenario 2: Withholding a Child When Court Orders EXIST

If you have formal, court-stamped Consent Orders or final Parenting Orders in place that dictate the child spends time with you from Friday afternoon to Sunday afternoon, your ex-partner must comply. These are binding federal orders.

Filing a Contravention Application

If your ex-partner breaches the order without a lawful excuse, you can file a Contravention Application with the court.

Courts take breaches of parenting orders extremely seriously. If the court finds that your ex-partner deliberately withheld the child without a reasonable excuse, they can impose severe consequences, including:2

  • Make-up Time: Ordering that you receive extra time with the children to compensate for the weekends you missed.
  • Paying Legal Costs: Forcing your ex-partner to pay the legal fees you incurred to bring the contravention application.
  • Fines and Bonds: Imposing financial penalties or requiring them to enter into a bond to guarantee future compliance.
  • Variation of Orders: In extreme cases of chronic withholding and “parental alienation,” the court may entirely reverse the primary care arrangements, deciding that the withholding parent is not capable of facilitating a healthy relationship with both parents.
  • Imprisonment: For flagrant, repeated contempt of court orders, judges can and do sentence parents to jail.

When Is Withholding a Child Legally Allowed?

The Federal Circuit and Family Court will only support a parent withholding a child if they establish a “Reasonable Excuse”.

The most common reasonable excuse is a genuine, evidence-based belief that withholding the child is absolutely necessary to protect their health or safety.3 You cannot withhold a child based on vague suspicions or personal dislike.

Valid Reasons (Unacceptable Risk of Harm)

A court is likely to accept withholding a child if you have concrete evidence of:

  • Physical or sexual abuse occurring in the other parent’s home.
  • Serious domestic violence that exposes the child to psychological harm.
  • The other parent arriving at handover severely intoxicated or under the influence of illicit drugs, making them incapable of driving safely or caring for the child.
  • Severe neglect that places the child in immediate physical danger.

Invalid Reasons (Do NOT Withhold)

You will not have a reasonable excuse to breach a court order if you withhold the child because:

  • Your ex-partner is behind on child support or refused to pay half the private school fees. (Financial disputes must be handled through the Child Support Agency, not by weaponising access to the children).
  • Your ex-partner has a new boyfriend/girlfriend you do not approve of.
  • Your child says they “don’t want to go” (unless they are older teenagers, parents are expected to actively encourage and facilitate the visit).
  • Your ex-partner was 20 minutes late to the handover point at the local McDonald’s.

Child Support Disputes: If your dispute is strictly financial, do not withhold the child. Read our comprehensive guide on Enforcing Parenting Agreements and Child Support for the correct legal mechanisms to recover unpaid money.

What to Do If Your Ex-Partner Shows Up Intoxicated

If you are at a handover on the Gold Coast and your ex-partner arrives clearly under the influence of drugs or alcohol, the law expects you to protect the child.

You should:

  1. Refuse the Handover: Calmly state that you do not believe it is safe for the child to travel with them today.
  2. Do Not Engage in a Screaming Match: If they become aggressive, lock your car doors and leave, or call the police if you fear for your physical safety.
  3. Document the Incident: Make an immediate note of the time, date, and their condition. If there were witnesses (like staff at the handover location), note their details.
  4. Contact Your Lawyer: Contact Bell & Senior Lawyers immediately the next morning to advise us that a breach occurred to protect the child. We will formally write to the other party’s lawyer establishing the “reasonable excuse” on the record before they attempt to file a contravention application against you.

If your child is being unlawfully withheld, or if you hold grave, concrete concerns for their safety and need to stop contact urgently, you must act fast. Delaying action can incorrectly signal to the court that you accepted the new status quo.

Bell & Senior Lawyers regularly appear in the Southport registries of the Federal Circuit and Family Court to file urgent Recovery Orders and Contravention Applications.

[!CAUTION] Delay Signals Acceptance to the Court Every day you do not take legal action to recover access to your child can be used against you. The court monitors the history of parenting arrangements, and an unexplained period of inaction may be interpreted as acceptance of the new status quo. An urgent Recovery Order can be filed within 24 to 48 hours.

Contact our family law team immediately on (07) 5532 8777 for urgent, same-day legal advice.

  1. Family Law Act 1975 (Cth) s 60B (Objects and principles). Parents have obligations and children have a right to meaningful relationships with both parents. ↩︎

  2. Family Law Act 1975 (Cth) Div 13A (Consequences of failure to comply with orders). The court has broad discretion to penalise breaches, including ordering make-up time or awarding costs. ↩︎

  3. Family Law Act 1975 (Cth) s 60CC(2)(b) (Protection from harm). The need to protect the child from physical or psychological harm involving subjecting, or exposing, the child to abuse, neglect or family violence is given highest priority. ↩︎

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