Imagine this – you have court orders in place which deal with child custody. Let’s say the orders state the child spends time with their father every second weekend from 9am Saturday to 5pm Sunday. You drive the child to their access visit at 9am on Saturday and arrive out the front of the father’s house. You open the car door and say “come on now Betsy it’s time to see your father”. Betsy looks unhappy, and is upset. She says to you “but I don’t want to see daddy!” By this stage the father is standing out the front of his house, waiting to see Betsy. Betsy looks over at him and says “I’m staying with mummy!” You’re unsure what to do. You tell Betsy, “C’mon now, you need to see your daddy, you will see me tomorrow”. Betsy says “no!” You then say to the father “she doesn’t want to go, I don’t know what else I can do”. You then return home with Betsy and the visit doesn’t proceed.
A court order that deals with child custody issues imposes obligations on parents. It is implicit in every court order that each parent will take reasonable steps to ensure that the ordered child contact occurs. It is not sufficient to be a “passive observer” waiting for a child to agree to see their parent. What is a reasonable step? The assessment of reasonableness is one which is made by a Judge. In the example above, simply standing there saying some hollow words of encouragement is likely to be considered by a Judge as not reasonable. It also depends on the age and maturity level of the child in question.
Some examples of what is not reasonable can be:
Children are sensitive to cues from parents. In a subtle way a parent can show a child they do not approve of the contact between that child and another parent. The child can then pick up on that cue and refuse contact in an attempt to please that parent.
This is a good test: what if the child was going to see your mother, or other loved family member? How would you encourage the child to see that person if they said they didn’t want to go? If you are honest with yourself, you may realise that you would act differently in this situation in your actions, words, and how you would encourage the child to leave your care. If the answer is you would act differently in this situation, then you’re arguably not taking all reasonable steps to comply with court orders.
I have used the example of a child expressing a wish not to see their father in the title of this article, but this scenario applies equally to any child who says they do not want to see either parent pursuant to a custody order.
What if you are either parent in this situation? You may be either applying to the court for a contravention of the court orders, or defending an application from the other parent alleging that you contravened court orders. No matter what your situation is, you should seek legal advice on your specific circumstances. Family law advice depends on context and the individual circumstances of your case. It’s important that you treat this article as information only.
CAUTION: This article contains general information of public interest only and is not intended to be, nor should be relied upon as, legal advice specific to the reader’s personal circumstances. Should you have a legal matter, please seek professional advice before acting or relying on this content.