No Contact Orders

Recent amendments to the Family Law Act 1975 fundamentally change the way the Federal Circuit and Family Court of Australia (‘the Court’) approaches parenting matters. These changes may impact the willingness of the court to grant ‘no contact orders’ in family law matters. This article examines no contact orders and looks at the circumstances when the court might grant such an order.

Parenting Orders

Parenting orders are legal and enforceable directions given by the court as to who has parental responsibility for a child and who can spend time with the child. In the past, the court consistently made parenting orders that, in most cases, ensured that children had regular contact with both their parents. This was because there was a legal presumption that it was in the best interests of a child to have a relationship with both parents. As a result, it was typical for parenting orders to grant both parents shared equal parenting responsibility. The parenting orders would often specify that the physical care of the child should be equal (for instance, for the child to live with each parent on alternating weeks) or for the child to reside with one parent but spend substantial and significant time with the other parent, such as on weekends and school holidays.  

No Contact Orders

As noted above, Australian family law previously presumed that regular contact with both parents was in the best interest of the child. Partially because of this presumption, it was very unusual for the court to make parenting orders which gave a parent no contact with their child. The court would only make this type of order where concern for the welfare of the child clearly overrode the presumption that every parent has equal shared parental responsibility. The court tended to require compelling evidence that:

• The child had been exposed to significant family violence
• The parent had significant mental health issues that they are not addressing
• The parent was suffering from an illegal substance addiction or
• The parent had sexually abused a child of the relationship or otherwise presented an unacceptable risk to the child.

However, even in serious cases where there was family violence or substance abuse, the court would often make any decision other than a no contact order. For instance, if one parent was not trusted to be alone with the child, the court would be more likely to order supervised time, either in the presence of a trusted relative or at a contact centre.

Current approach to best interests

The Family Law Amendment Act 2023 brought in a number of changes to the Family Law Act. Following these amendments, the court must now give greater consideration to the need to protect a child from psychological and physical harm over and above the benefit of the child having a meaningful relationship with both their parents. Some of these changes under the Act were:

• the removal of the legal presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility
• the increase in provision for one parent to have sole parental responsibility over specific issues
• the removal of the term ‘substantial and significant time’ in the legislation
• a new definition of ‘best interests of the child’
• the alterations to the grounds to make changes to final parenting orders, and
• the enhancement of the role of the Independent Children’s Lawyer.

The legislative changes do not apply retrospectively, and therefore does not automatically reopen a parenting matter that was finalised before 6 May 2024.

Despite the changed legislation, it is still unusual for the court to order that a parent has no contact with their child. If a parent is concerned about their child having contact with the other parent, they must provide compelling evidence as to why the child should be prevented from seeing the other parent. The concerned parent must:

• clearly articulate the reasons why the child should not see the other parent
• consider whether the other parent can take any actions to address these concerns, such as seeking medical attention, counselling or behaviour management programs
• assess whether the other parent could see the child under the supervision of a third party or at a supervised contact centre.

Case study

In the recent case of Welcher & Gilpin (No 2) [2024], the Federal Circuit and Family Court of Australia made a no contact order against a father during a parenting order matter. In this case, the mother and the Independent Children’s Lawyer asked the court to order that the father spend no time with their two youngest children.

The mother was able to prove to the court that the father had a serious history of coercive control. Given this history and other factors, Justice Burt found that the emotional and psychological needs of the children required a complete severance from the father. The court determined that the father would likely overhold the children, as he had previously done, and influence the children to reject their mother and re-align with him. The court found that the father had repeatedly failed to recognise and act on the children’s best interests, while the mother had responded appropriately to the children’s psychological and developmental needs. Not only did Justice Burt order that the father have no time with his two youngest children, his Honour also ordered that he sever all communication with the children, including blocking social media accounts.

A concerned parent should consult with an experienced family law solicitor before applying for a no contact order. Go To Court Lawyers can give advice on the specific circumstances and the options that are available to minimise the risk to the child. Contact our team on 1300 636 846 for assistance.