WORDS: Amy Nikolovski and Ryan Varga
The legal answer is that the objectives of the Family Law Act 1975 are to ensure that a child has a meaningful relationship with each of his/her parents. A parent with the primary care of a child has a positive obligation to facilitate and encourage time with the other parent.
If there is a parenting Order in place, then a parent has a duty to positively comply with the Orders, regardless of the child’s age or level of maturity. Failure to comply with an Order will leave that parent at risk of being found to be in breach of Orders unless a “reasonable excuse” exists.
The Court has established principles to help determine whether steps taken by a parent represent a “reasonable” attempt to comply with an Order. What is “reasonable” depends on the circumstances of the individual case. However, the Court has determined that “reasonable” steps go far beyond merely attending handovers and inviting the child to go with the other parent.
Once a parenting order has been made, the parent can no longer say to the child; “You go if you want to’, ‘If you wish to go, you go’ or, ‘You make up your own mind’. Parents are expected to utilise all parental authority. It is not enough to make a token effort at compliance by stating a few phrases which are not designed to positively encourage a child to spend time with the other parent. If the child refuses, the parent should not argue that their obligations under the order are satisfied merely because they have made the child available at handover.
Hopefully, with positive reinforcement from the delivering parent, the child will become more inclined to spend time with the collecting parent. However, this is not always the case. Forcing children of 16 or 17 years of age to follow a parenting order is often a fruitless task. In this situation, a parent must act in the best interests of the child, even if that child may not see it so at the time.
Depending on the circumstances of the case, the Court may accept that other factors may contribute to a child’s resistance to spending time with the other parent. These factors include the impact of parental estrangement/alienation, hypersensitivity to a parent’s emotions, a child’s mimicking of the other parent’s emotions and/or a child may simply develop a preference to stay with one parent due to the nature of that parent’s lifestyle, living conditions, or the strong bond shared.
Determining the root cause of a child’s refusal to see a parent is vital to assist a child to transition between two homes.
If a parent believes that a child is at an unacceptable risk of physical or psychological harm in the care of the other parent, then that parent needs to balance their obligation to protect the child against the requirement to facilitate time with the other parent. Legal advice ought to be sought if a parent has any concerns regarding the safety and welfare of a child in the care of the other parent.
Amy Nikolovski is the Managing Partner of DBH Lawyers, former President of the SA Law Society and a leading lawyer across her field of expertise. Amy is a staunch advocate for women in business in all aspects of her professional life. Amy is also a proud mum to Niko and Amelia.
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