As a family lawyer, one of the most common questions that I get asked by my clients is what their obligations are when their child or children do not want to spend time with the other parent when the parents have separated. This is particularly concerning for parents when there are Court Orders in place which provide for the child to spend time with the parents.
When faced with these issues one of the first questions that I ask is, what indicates to you that child X (let’s call him Lachlan for the purposes of this hypothetical) doesn’t want to go? The responses that I get run the gamut of ‘Lachlan screams and cries and says he doesn’t want to go’; ‘when it is time for handover Lachlan runs into his room and locks the door’; ‘when Lachlan returns from the visit he says that he never wants to see her/him again’.
Obviously, this is one of the most distressing things that separated parents can go through, so they need good sound advice, both from a legal and practical point of view. And in truth, the answer is not always straightforward.
This exact issue arose in the recently decided case of Cartland & Cartland. This was a case where a single Judge (Judge Terry) of the Federal Circuit Court, was asked to consider whether a mother had contravened Court Orders whereby the Orders provided that the children were to spend time with the father. On each occasion, the mother brought the children (aged 11 and 12) to the place of handover as stipulated in the Court Orders, but sat silently by as the children, from the backseat of her car with the window rolled down, told the father that they did not want to spend time with him. On each occasion that this occurred the mother drove off with the children and the visit with the father did not go ahead. The father sought an order from the Court that the mother was in contravention of the Court Orders.
It is not considered a contravention of Court Orders if the party who is alleged to have contravened has a reasonable excuse for failing to comply with the Court Orders. In the case of the mother argued that she had complied with her obligations pursuant to the Court Orders by bringing the children to the handover place, however the children expressed that they did not want to go spend time with their father, therefore she had a reasonable excuse for the visit not going ahead as per the Court Orders. She reasoned that after all she couldn’t force the children to go with their father against their wishes, right?
The Court was quite critical of the mother’s behaviour. It found that the mother’s behaviour was sending the message to the children that it was fine for them to remain in the car and refuse to go with the father. In order not to be in breach of the Court orders it was incumbent upon the mother to make a reasonable effort and take positive steps to bring about some change in the attitude and wishes of the children.
Of course the circumstances of every case are different and factors such as the children’s age and maturity level; history of the proceedings; history of family violence etc are all relevant to whether or not a person will be found to have contravened orders that provide for one parent to spend time with the child in circumstances where that person is bringing the child to handover but doing nothing more to facilitate the visit going ahead.
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However, as a rule of thumb for parents in this situation who want to know if they could be found to be in breach of Court Orders without a reasonable excuse, the following may serve as a guide for what they need to do:
- You do have to physically take the child to the place of handover as ordered by the Court.
- It is not enough to simply take the child to handover. If the child says they do not want to go, you have a positive obligation to encourage the child to spend time with the other parent. Such encouragement can take the form of:
- saying to the child that they will have fun with the other parent before they go;
- Sending the message (both by your body language and the things you say) that you are supportive of the child spending time with the other parent;
- At the end of the visit, talking with the child about what the child did with the other parent and raising positive points about that experience. (e.g. ‘you went to the zoo with Dad? That’s great! What animals did you see?’)
- Item 1 and 2 need to be done on a regular basis. Not just as a one-off.
After implementing these strategies on a few occasions, hopefully, your child will be more willing to spend time with the other parent. That will certainly make things easier for the child and on you as their parent! However, if after taking these steps you are still facing a child who adamantly does not want to spend time with the other parent and that contact does not go ahead, at least you will likely be better placed to argue that you had a reasonable excuse for contravening the Court Orders, than would be the case if you were the mother in the case that we considered above who did nothing more than drive the children to the handover place and sit silently as they expressed their wish not to go with their father.
Of course, this blog comes with a disclaimer, if you believe that your child’s safety and well being are at risk by spending time with the other parent, even when there are Court Orders in place then in the first instance you need to seek legal advice about what your options are. If this is an issue that you are facing we recommend making an appointment with a lawyer right away.
Dara Isaacson is a Melbourne based Family Lawyer.