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Imprisoned parents – can they seek orders in Family Court?

By February 5, 2019November 1st, 2021No Comments

It may come as a surprise to know that imprisoned parents can seek court orders regarding their children from within prison, but cases involving imprisoned parents are far from rare in the family court system.

Many people incorrectly believe that imprisoned parents will automatically lose any ability to access their children while incarcerated, however this is not the case. While they may lose various civil rights during their time in prison, their access to the family court system is retained.

Imprisoned parents can still ask the courts for a specific and realistic plan for contact with their kids, whether that be in person visits or phone calls or letters. As always, when making parenting orders the family courts must look at the best interests of the child as paramount. With imprisoned parents seeking orders, the courts would assess the usual raft of factors in determining the best interests of the child, such as the relationship between the parent and child, previous custody arrangements, the offences committed by the imprisoned parent, any risk that the parent poses to the child, how visits to an imprisoned parent might affect the child psychologically and logistical factors, and so on.

And if the imprisoned parent is the child’s legal parent, they may still be required to pay child support even while in prison, though the amount may obviously change due to reduction in income and change in the percentage of time that the parents care for the child.

Imprisoned parents often find it difficult to deal with parenting issues while incarcerated, and are often already disadvantaged by not being able to easily communicate with their children anymore, and may lack funds to pursue legal proceedings. But plenty of imprisoned parents do traverse the family court system.  In some cases, this has caused outrage in the community, when parents have been imprisoned for family violence or other serious offences. The feeling is that the prisoners should have no rights to access the court system and that non-incarcerated parents should not have to bear the legal, financial and emotional burdens of negotiating with their imprisoned co-parent via the family law system.

A recent Newscorp story looked at this issue, and interviewed several mothers who are going through the family court system with an imprisoned co-parent. One mother’s former husband is serving time for raping a young relative, but is seeking orders from the family court that would enforce jail visits from his 13 and 16 year old children. In another case a family violence perpetrator who is incarcerated in immigration detention is also seeking orders relating to his children.

It’s clear that some imprisoned parents are motivated by something other than a genuine desire to maintain a relationship with their children while in prison. Angela Lynch, a lawyer from the Women’s Legal Service Queensland, is quoted in the article as saying:

“The prisoners all talk about these things and going to court is a way for them to have something to do – to alleviate the boredom.”

And it’s true that some mothers experience court proceedings as continued abuse via the court system. One mother interviewed in the article claims her abuser is using the Family Court to continue the abuse:

“The Family Court is enabling a convicted child rapist to use the system to maintain his power and control over me,” [the mother] said.

The mother in that case has already spent $150,000 on the ongoing, three year long legal battle. Her former husband is seeking access to the children as well as a generous property settlement.

In the case involving the father in immigration detention, despite his potential deportation, “the Immigration Department is allowing him to take me to Family Court”, says the mother.  In response, the Department of Home Affairs said people in detention “have the right to access the courts”.

Despite fears over imprisoned parents seeking visitation from their children, due to the known stressors involved in children visiting imprisoned parents, court orders are more likely to take children’s views into account. In one recent case, orders were made regarding an imprisoned parent such that his kids should only have to “spend time with him in accordance with their respective wishes”.

If you share children with an imprisoned parent, we can advise you of your options and how to respond to any family court applications. To arrange a free no-obligation first conference, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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