Children often have no hesitations in letting their parents know when they like or dislike something. This is increasingly the case with respect to parenting arrangements in the context of both informal parenting plans and where there are Court Orders in place.

When a child expresses strong views in opposition to a particular parenting arrangement, this often leaves parents in the difficult position of having to facilitate the child’s time and contact with the other parent against the child’s wishes.

So, what are the actual obligations imposed upon a parent to facilitate the other parents’ contact?

A parent will need to consider the following circumstances:

1. The age of the child
2. The child’s own personal circumstances such as their level of maturity and whether they have any mental health conditions; and
3. If there are Court Orders in place, the contact arrangement that is specified.

The Family Law Act 1975(Cth) provides for a general presumption that it is in the best interests of a child to have a relationship with both parents. In the absence of a parent posing a greater risk to the child than the perceived benefit of maintaining a meaningful relationship, this presumption is often applied.

Informal Parenting Arrangements

In circumstances where there are no Court Orders in place, there would therefore be no enforceable obligation for a parent to facilitate a child’s time with the other parent. This may, however, give rise to the parent whose time is not being facilitated subsequently commencing proceedings in the Federal Circuit and Family Court of Australia seeking that their time with the child be enforced.

Should a child exhibit significant difficulty in agreeing to spend time with the other parent, this should always be firstly discussed between the parents in an honest and upfront manner with the view of reaching an agreement that benefits the child. This would assist in identifying why the child is opposed to spending time and being open to an arrangement that addresses the child’s concerns. Should you as a parent be unable to productively communicate with the other parent in a child focused manner or should you believe the child is at risk of harm should contact continue against their wishes, you should urgently seek appropriate legal advice from a family law practitioner.

Court Ordered Time

In circumstances where there is a Court Order in place that requires for a child to spend time with either parent as specified, there is a positive obligation upon the facilitating parent to encourage their child to spend time with the other parent.

Should time as specified by a Court Order not be facilitated by a parent, this can potentially amount to a ‘contravention’ or ‘breach’ of Orders. If you believe you that you or the other parent has contravened a Court Order, you should promptly seek appropriate legal advice.

Positive Obligation

So how does a Court interpret whether an unfacilitated contact amounts to a contravention of Orders?

The Court will consider whether the parent who contravened the Orders had a ‘reasonable excuse’ to not comply with an Order of the Court.

A Court certainly does not expect a parent to forcibly drag their child to spend time with the other parent however there are steps that need to be taken by the facilitating parent. A Court will need to be satisfied that the parent has taken all reasonable steps to facilitate that time. This will take the form of:

1. Taking the child to the handover location;
2. Encouraging the child to spend time with the other parent, for example it is not enough to simply ask the child in front of the other parent whether they want to spend time, a positive effort will need to be made to show that you are supportive of the child having a relationship with the other parent; and
3. Consistently making the effort to facilitate changeover even if time does not occur, for example it is not enough to simply say to the other parent, “they did not want to go with you last time, so I won’t take them to you this time”.

The established case on this issue is Stavros & Stavros (1984) FLC 91-562 where the Court determined there is an obligation upon the parent with care of the child to take reasonable steps to make the child available and that these reasonable steps go far beyond merely taking the child to the other parent and inviting the child to go with the other parent. If the child refuses to go, that does not remove their obligations as a parent to encourage their child to do something in their best interests, even though the child may not see it as so at the time.

A good analogy would be when a child refuses to eat their vegetables, despite you as a parent knowing that their young growing selves require the vitamins and nutrients only vegetables provide. Most parents would not immediately concede should a child refuse to eat their vegetables and would not stop at a simple “no” from their child. Most parents would take “all reasonable steps” to encourage their child to be sure to eat their vegetables and the same approach should be applied if a child were to refuse spending time with their other parent.

If your child is refusing to spend time with the other parent, or is refusing to spend time with you, you should promptly seek legal advice to determine what your options are based on your specific circumstances.

A parent at all times is able to have regard to their child’s safety and well-being. If you genuinely believe your child’s safety and well-being is at risk by spending time with the other parent, even if there are court orders, you should urgently seek legal advice so you can be aware of all the options available to you to protect your child.

If you require any advice from a top Sydney divorce lawyer in relation to your family law matter, please don’t hesitate to contact us on (02) 8379 1892 or nevans@barkerevans.com.au.