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Can My Ex Withhold Access If I Haven’t Paid Child Support?

Hi,

I have two kids (six and seven) that I always spend time with over the Easter holidays. My ex and I don’t have this in writing though. When it comes to payments and visits, we just have a verbal arrangement that we’ve stuck to since we split up four years ago.

This year, however, I’m behind on my child support payments because I lost my job just before Christmas. My ex is now threatening to refuse to let me see the kids until my child support is up-to-date. Is she legally allowed to do this?

Daniel, 27, Beenleigh

 

 

Dear Daniel,

Unfortunately, your story is one that our family lawyers hear every day.

First of all, you should know that child support and custody matters are two separate issues. They are administered under different legislation and more importantly, the family law courts do not deal with the child support matters at all.

 

Child Support

As far as child support is concerned, if there is no binding Child Support Agreement in place, then the amount of child support required can change as the payer’s circumstances change (such as you losing a job).

You should contact the Child Support Agency and have the amount of the child support you need to pay assessed – this may come back as zero payable if you have no income. Doing this will ensure that you have discharged your obligation to pay child support.

It’s also worth mentioning that it is obviously not in your children’s best interests to have to get by on a lower income than they’re accustomed to. While finding employment can be very difficult around this time of year, any job you can secure will not only help your children now, but it will aid you later down the track if you do have to go to court.

 

Parenting Arrangements

Without having a little bit more information about your specific situation (there may be other extenuating circumstances you haven’t included in your message) we can’t tell you whether your ex can or should withhold your access to your children.

When it comes to parenting arrangements in general, there are a few things that any separated parent living in Queensland (including you) should know:

  • Generally, if there are no orders in place, an ex cannot refuse to let the other parent see the children unless they have reason to believe the other parent won’t give the children back or, by allowing access they would be putting the children at risk of harm. Examples of harm include exposure to drug use, domestic violence or sexual abuse.
  • If there is no risk of harm and another very compelling reason to withhold access is not provided, the Family Court will not look favourably upon a parent who denies the other parent access to their children. The Family Court understands that children need a relationship with both parents wherever possible.
  • Nobody can break the law while trying to see their kids. This includes trespassing on the other parent’s property to collect them, taking the kids overseas without the other parent’s consent, or making threats of physical violence against the other parent.

 

The Next Steps

While a verbal agreement may have worked for you and your ex in the past, you have many years before your children are adults and this will certainly not be the last disagreement you have.

It’s a good idea to make formal arrangements now before the problems of raising teenagers hit.

In addition to sorting out your child support obligations, you may want to consider:

  • Drafting a parenting plan together: These are not enforceable by law, but the court will consider them if you later apply for orders.
  • Applying for a parenting order: This is legally enforceable, and will usually cover where the child lives, who the child spends time and communicates with, as well as other issues including education and medical treatment.

At the end of the day, family law disputes have the best outcomes when parties can consciously put aside their dislike or even hatred of the other parties involved, and instead focus on what is best for the children.

We hope this works out for everyone involved.

At Phoenix Law, we have solicitors that can help you achieve an outcome that will protect your children and uphold your rights as a parent. To get in touch with one of our approachable family lawyers, just dial (07) 3180 0908, email info@phoenix-law.com.au or fill in our online contact form.