As a family lawyer team, we are often asked “When is it ok not to send my child to the other parent’s house.”
The answer to this is often fairly complex as it will depend on the reason the parent does not wish to send the child to the other parents’ house. This can often be addressed by asking the parent the reason they do not wish to send their child to the other parent’s house.
What if there are drugs or alcohol involved or my child is being abused
If the answer is that there are drugs or alcohol involved or if the child is at a risk of suffering physical or psychological abuse or domestic violence is occurring, then we need to explore the reason the parent believes this is the case. Time spent with the other parent should be enjoyable, and without risk to the child, so it is important to determine the extent of these matters at an early stage.
While one of the primary considerations when determining what is in the best interests of a child pursuant to the Family Law Act 1975 is the benefit to the child of having a meaningful relationship with both of the child’s parents, the other limb to consider is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Before taking steps to prevent a child from spending time with another parent, it is important to speak with an experienced family lawyer about the specifics of your case. While it is important to protect children from harm, there can be heavy penalties if a parent runs a case that is found to be untrue in order to prevent the children from spending time with the other parent.
A prime example is the recent decision in the case of Syms & Syms. This case was an appeal made by the Mother in relation to final Orders made by the Court for a change of residence. In the original case, the Mother alleged that the children were at an unacceptable risk of sexual abuse by the Father.
After considering the evidence available, the Court eventually found that the children were not at a risk of harm in the Father’s care, but that they were at risk of emotional harm if they remained in the Mother’s care. The Court further concluded that the children would most likely lose contact with the Father, given they concluded that the mother’s allegations were unfounded. While the Mother had traditionally been the children’s primary carer, the Court Ordered on a final basis for the children to live with the Father and after 4 months of not spending time with the Mother, the children could commence spending some supervised time with her, until the Father determined that supervision was no longer required. On appeal, the Court upheld the original decision.
There are of course some cases where the risk of harm to a child is too great to spend unsupervised time with a parent and careful steps need to be taken in these cases. Every case is different, so it is important to obtain advice from an experienced family lawyer at an early stage to work out the best way to proceed.
What if my child acts up when I tell them it is time to go to the other parents’ house
If the answer is “She runs away when I tell her it is time to go to her Father’s house”, to “He locks himself in his bedroom when I tell him it is time to go to his Mother’s house,” then it is often worth exploring the reason that the child is acting in this manner. Speaking with an experienced family lawyer can often assist with working out the best way to deal with these sorts of problems.
There are a few cases that can provide us with some guidance around this area, such as the case of Cartland and Cartland. This case involves the Mother of an 11 and 12-year-old, who drove the children to a location where the Father was waiting to spend time with the children. On arrival, the Mother wound down the window of the car and the children told the Father that they did not wish to spend time with him. Then the Mother drove the children back home to her house. While there were Orders in place that provided for the children to spend time with the Father, the Mother felt she had a reasonable excuse for that time not proceeding, given that the children told the Father that they did not wish to spend time with him.
The Court was critical of her conduct and found that the Mother’s behaviour “…sent a clear message to the children that it was alright for them to remain in the car and refuse to go with the Father. It was the absolute reverse of what was required to do to ensure compliance with the Orders.”
This example can be likened to children visiting the dentist. Children often do not wish to go to the dentist, but as it is good for them to see the dentist, the parents will ensure that the children go to the dentist, even if they say they do not want to go. It is similar in cases where there is no risk of harm – each parent has a positive obligation to actively encourage children to spend time with the other parent.
The ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court and includes the following statement:
- You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
The Ramsden Family Lawyer Team
As every case is different, obtaining advice from an experienced family lawyer at an early stage is especially important in cases such as these so that you understand the best way to move forward.
Our team of experienced family law solicitors can assist you if you are experiencing problems with your parenting matters. If you require assistance with your parenting matters, we invite you to contact us on 1300 749 709 to discuss the options available to you. Our family law team at Ramsden Lawyers offer a free 30 minute consultation and we would love to be able to assist you.