When parents separate, the overall message from all of the literature and good counsel is that each should do everything in their power to keep their children out of the fight. In many cases however, low levels of trust driven by high levels of perceived parental incompetence can provoke a parent into the belief that it would be better for the children to be shielded away from spending any time or even communicating with the other parent.
In what circumstances then is it OK for a parent to act in this way?
The full answer to this question could quite easily fill an encyclopaedia or even provide the script for an entire television drama series, but there are some “short speak” answers that act as a good guide.
First, both of the biological parents to a child(ren) are considered, at law, to have a joint right/responsibility to retain the child(ren) in their care and make decisions for their welfare. Although this right is “joint”, a parent who acts solely and seeks to exclude the child(ren) from the other parent, does not (at least in the first instance) commit a crime under any law. Juxtaposed to this however are positive obligations imposed by the Family Law Act by which each parent is required to do all things reasonably necessary to ensure that the child(ren) continue to have a meaningful relationship with both parents. A parent therefore who blocks the other from seeing the child(ren) in defiance of this general obligation will usually see their dispute escalated to the Family Court where a judge will decide (and order) what time a suspect parent spends with the children and on what conditions.
When can a parent block the children from time or communication with the other parent in defiance of a Court Order?
Whilst a parent who breaks a court order won’t instantaneously burst into flames, contravening an order does carry the risk of serious sanctions and these can only be escaped if the parent can give a “reasonable excuse”. From case law, a reasonable excuse historically has been accepted where:
- The order was breached because the parent did not at the time understand the obligations it imposed…. AKA the “ignorance excuse”; or
- Where the parent believed on reasonable grounds that the contravention was necessary to protect the health or safety of the child or another person (including themselves); and
- The contravention was not longer than was necessary to protect the health or safety of the person referred to…. AKA the “protection excuse”.
These days, “ignorance” excuses rarely work because modern court orders are accompanied by an explanatory memorandum that clearly sets out the obligations under the orders and the consequences for breaking them. The “protection” excuse remains solid but it is always a question of fact and degree.
What happens to a parent that is found to have inappropriately blocked time with the other parent?
The Court these days has a number of powers open to it which include:
- Order an attendance to a post-separation parenting program;
- Compensate for time lost with the child as a result of contravention;
- Require the respondent to enter into a bond;
- Impose a community service penalty or a fine;
- Order the Respondent to spend a stint in jail; or
- Varying the primary Order – this could include an Order that says that the child is now to start living with the other parent.
Are there any overriding policy considerations that a Court is generally required to apply?
Whilst the short answer here is no – each case must turn on its own facts, a helpful statement made in a previous case was that when deciding these matters, it is not for the Court to try to make an example out of a parent who has breached the Orders as a means of trying to deter other parents from doing likewise, but instead, the Court’s focus must be to make Orders which will better ensure future compliance as opposed to a “general deterrence or policy”. In practical terms what this means is that if a parent has repeatedly and defiantly failed to comply with an Order, but on analysis it is discovered that the Order is just not practicable or even doable, then the Court instead will change the Order rather than punish a party.
What happens when the child refuses to go?
This is a very common and highly problematical area, but again from case law, some general principles have been laid down. These principles say:
- The resident parent must actively encourage the child to attend contact;
- It is not open to that parent to simply bring the child to the front entrance/gate and then invite the child to walk of its own accord off to the other parent – merely standing by with “folded arms” doing nothing more to either encourage the child to walk to the other parent or discourage the child from remaining still is not enough;
- Merely requesting that the child make a telephone call, or to come to the phone is insufficient;
- It is not open to a parent to say to the child, “you go if you want to”, or “you make up your own mind”;
- Instead it should be the resident parent who tells the child that it is that parent’s wish that they go on contact with the other parent – this is an important point, it is not sufficient for the parent to say it is the other parent’s wish that they go;
- It is expected that the resident parent bring to bear the authority that they have over the child just as they would ensure that the child attends school;
- The resident parent is not entitled to treat the other party as an enemy who is to be thwarted wherever possible by either active steps or passive resistance;
- Even where a parent is in disagreement with the Order, the parent cannot carry on a campaign of non-compliance or defiance against it, the parent must change their attitude and conduct themselves as if it was a decision reached by them of their own free will. If a parent persists in the belief that the Order is wrong, then it is for that parent to convince a Court to change the Order. Short of that action, compliance is required.
Does the situation change at all where the arrangement is recorded in a parenting plan?
A “Parenting Plan” is a document recognised under the Family Law Act as a simple agreement entered into between the parents to record care arrangements for their children. Because these Agreements are not submitted for prior Court sanction, any parent who breaches its terms is not, initially, at risk of any punishment for doing so. Instead in this scenario what typically happens is the innocent parent who seeks to enforce the Parenting Plan, makes special application to the Family Court asking for the Court to basically convert the Parenting Plan into formal Court Orders and usually Judges are happy to comply absent any compelling argument to say different. Once the Parenting Plan’s terms have been elevated up to become a formal Court Order, the arrangements then carry the full force of the Family Law Act and consequently any parent who subsequently reoffends and breaches the settled time and communication arrangements will face all of the usual court sanctions which were covered off in Part 2 of this series. A parent therefore who interferes with another parent’s rights to spend time or communicate with children under a Parenting Plan effectively faces a “strike 1/strike 2” situation.
What should be done when the child is expressing extreme resistance to spending time with the other parent?
We have previously covered off on this subject under another series of articles entitled “Does the child ever get a say”. The short answer for this paper however is that if the child is expressing extreme resistance to spending time with the other parent, then two initiatives should be activated immediately:
- firstly, efforts should be made to get the child to counselling or some form of therapeutic treatment to either assist them in overcoming whatever anxiety or resistance they may have towards the other parent, or obtain independent verification of some serious threat of abuse from which mandatory reporting to police and child welfare authorities must follow; and/or
- if there is time and money available a specially recognised Court expert known as a Family Report Writer should be appointed and the child(ren) should be allowed to be interviewed by that independent person so that the wishes can be adduced in a way that counters a suggestion that it was primed or scripted from one parent;
and in both cases, the other parent should be involved in the selection of the relevant service to which the child is to be taken.
Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.