Suspending a child’s time with a parent is a serious step. Suspending it when there is a Court Order is a very serious step. The Family Law Act, incorporating the United Nations Convention on the Rights of the Child, says that children have the right to know and be brought up by both parents. The Courts treat that principle as a fundamental part of the Family Law Act.
If parents make their own arrangements about how much time their child spends with each parent, whether as the result of reaching agreement at mediation, or just sorting it out amongst themselves, that is the best way to go. This brings order and stability to the child’s life, in the context of kindergarten/school, sporting and social activities. They know when they will be staying at Mum’s and at Dad’s, and they can plan their time accordingly.
Having Court Orders made, either with the consent of both parents, or as the result of a contested Court hearing, means that the child care arrangements cannot be changed by either party, without a reasonable excuse. To do so can, and does, lead to penalties being imposed by the Court. They can range from a warning to the offending parent, to jail time. There are parents in prison in Australia today as the result of, admittedly, flagrant or repeated breaches of Court Orders.
So, what is a “reasonable excuse” for not complying with a parenting Order made by a Court? An example would be, if the child lived with Mum, and spent time at Dad’s home every second weekend. Dad informs Mum on the Friday before his Court-ordered weekend with the child that hi new partner has tested positive for COVID-19. The partner only has mild symptoms and Dad has done a negative RAT test. Dad wants the child to go to his home to spend his scheduled weekend with he and his partner. Is Mum justified in refusing Dad contact? The answer is yes – for two reasons. First, the state law, as of April 2022, requires Dad to quarantine in his home for 7 days, which means the child can’t go there. Secondly, the paramount concern of the Family Court is the best interests of the child, and keeping him or her away from a person who has close contact with a COVID sufferer is part of that. So, it’s actually Mum’s responsibility, as the parent the child is living with, to not let them go.
OK, you say, but COVID is an extreme, and obvious, case. What about if Mum doesn’t like Dad’s new partner? Is that enough to suspend the child’s time with Dad? The answer is no, even if the child doesn’t like the partner. It’s up to Mum and Dad to sort this out – for Mum to accept that Dad has a new partner, for Dad to accept that Mum may be upset by this, and for the child to be counselled by both parents that it’s alright to stay at Dad’s home. And his new partner needs to be on board, to treat the situation sensitively and with understanding of the child’s likely confusion about the new family dynamics. In these cases, some family counselling often helps.
What about if the child is sick – too sick, Mum says, to spend the weekend with Dad? Childhood illnesses can be a matter of degree. To some extent, in our scenario, Dad needs to trust Mum’s judgement that the child really is too sick to visit Dad, and that it would not be in the child’s “best interests” to do so. If Dad insists on Mum getting a medical certificate from the family doctor, she should do so, but not make it a habit – Dad needs to understand that, in our case, where the child is living with Mum, she probably does know best. Make up time, the next weekend, if possible, can defuse these situations. Unfortunately, there are many cases where the non-custodial parent takes the other to Court for breaching parenting Orders, where a little common sense could have sorted the matter out.
Also, unfortunately, there are “no contact” Mums and Dads who usually end up in Court, spending large amounts of money and emotional energy, claiming they are the only parent who knows what is best for the child. Research has shown that children who are brought up in warring households, even after their parents have separated, are likely to have psychological problems as they grow up, often lasting into adulthood. Often, the parents are trying to “pay back” each other for the hurts that arose in their relationship – with the child in the middle.
There are excellent mediation services which can help parents to solve these problems before they become serious issues. These include:
Family Relationship Centre Greensborough – phone 9404 7800;
Relationship Matters Melbourne – phone 1300 543 396;
Family Relationships Centre Broadmeadows – phone 9351 3700.
And, as always, the Tonkin Legal Group’s Family Law Team are here to help you.
Watch our free on-demand webinar on parenting arrangements
If you want to learn more about parenting arrangements with your ex-partner following separation, watch our new, free on-demand webinar "Agreeing on Parenting Arrangements" which explains how to agree on child-focused parenting arrangements with your ex-partner.