One of the most common issues parents face is defiant children. For separated parents, this issue may arise when handover is looming. So, what can you do when the kids are kicking, screaming and telling you that there’s absolutely no way they’re going to spend time with their other parent?
This issue was addressed in the matter of Cartland v Cartland [2014] (“Cartland”), by Judge Terry of the Federal Circuit Court. The father in this matter filed a contravention application against the mother because their two children, who were 11 and 12 years old, were not spending time with him in accordance with the parenting orders. The father gave evidence that the mother would bring the children to handover and sit silently in the car while the children told the father through the rolled down window that they would not spend time with him. The mother would then drive the car home, taking the children with her. When dealing with contravention applications of this nature, the Court is of the view that failing to handover the children pursuant to the orders is not considered a contravention if there is a ‘reasonable excuse’ for not doing so. When deciding whether you have a reasonable excuse, you should seek legal advice.
In Cartland, the mother argued that she complied with her obligations by attending handover and making the children available to the father, but she had a reasonable excuse for the visit not going ahead: the children did not want to go.
The Court disagreed; the mother had not discharged her obligations pursuant to the orders. Judge Terry was critical of the mother’s behaviour, finding that her passive behaviour taught the children that it was reasonable to refuse to spend time with the father. In order to comply with the handover order, the mother had an obligation to positively encourage to spend time with the father; “parents must make a reasonable effort and take positive steps to bring about a change in the attitude and wishes of the children”.
Importantly, each case is different. Many factors will be taken into account when determining what is reasonable in the circumstances, such as the children’s age, maturity and ability to make decisions for themselves; history of proceedings; and family violence. However, the following general guidance may prove helpful when navigating this issue:
You must physically take your child to handover, pursuant to the relevant orders.
If the children express to you or the other parent that they do not want to spend time with the other parent, you must take positive steps to change their attitude. For example, you could:
before the visit, tell your child they will have a good time with the other parent; and
after the visit, talk to your child about what they did with the other parent and raise positive talking points. For example, “you went to the beach with Dad? That’s great! Did you build a sandcastle?”.
After taking positive steps, you will hopefully notice an improvement in your child’s attitude. However, if this isn’t the case, you will at least have a stronger argument for a reasonable excuse.