When orders have been made by the Court in relation to the welfare of children and it is time to hand the children over to the other parent, what do you do when the child says “I don’t want to go”. Do you put the child back in the car or do you encourage the child to go?
This was addressed in the recent case of Raider and Raider [2011] by Justice Forrest. The facts of this case were the mother lived in Sydney with the two children, aged 13 and 11, and the father lived in Surfers Paradise, Queensland. The children were to spend time with the father during the school holidays and the mother was to give the father 28 days notice of when that was to occur.
The father alleged that the mother did not comply with the Orders because the children did not spend time with him over the holidays and he was not speaking to them on the telephone. The mother stated that they did not want to go nor speak to him.
Justice Forrest had to determine, in accordance with the Family Law Act, whether the mother had intentionally failed, or made no reasonable attempt to comply with those orders and if so, did she have a reasonable excuse.
To assist him in his determination, Justice Forrest relied on the Full Court’s decision of Stevenson v Hughes [1993] regarding the positive obligations to encourage access. He stated “They said that it is not a sufficient discharge … to say to the effect “you see, I tried, but the child does not want to go” and thereafter to figuratively fold their arms as if that were the end of the matter. They held that the custodial parent’s role is an active role with an obligation to positively encourage access.”
Justice Forrest determined that the mother had contravened three of the five allegations in that 1) she did not provide the father with the travel details 28 days prior, 2) she did not encourage the children to speak to their father on the telephone and 3) she provided the wrong days for the children to spend time with their father.
In relation to the last two allegations however, the Court found that the mother did have a reasonable excuse on the basis that the 13 year old boy had threatened self harm and it was in the childrens interest for them not to spend time with their father to protect their health and well being.
If you need assistance determining what is reasonable compliance of children’s orders you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
Click here for more information on Sara Burnheim.