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Ryan Varga

- 11 Jun 2024
  • Family Law

What if a child does not want to spend time with their other parent?

By Ryan Varga

Advising what to do when a child does not want to spend time with the other parent is not easy.

The legal answer is that the objectives of the Family Law Act 1975 are to ensure that a child has a meaningful relationship with each of his/her parents. A parent with the primary care of a child has a positive obligation to facilitate and encourage time with the other parent.

If there is a parenting Order in place, then a parent has a duty to positively comply with the Orders, regardless of the childs age or level of maturity. Failure to comply with an Order will leave that parent at risk of being found to be in breach of Orders unless a reasonable excuse” exists.

The Court has established principles to help determine whether steps taken by a parent represent a reasonable” attempt to comply with an Order. What is reasonable” depends on the circumstances of the individual case. However, the Court has determined that reasonable” steps go far beyond merely attending handovers and inviting the child to go with the other parent.


Parental obligations under a Parenting Order

Once a parenting Order has been made, the parent can no longer say to the child, You go if you want to,” “If you wish to go, you go,” or “You make up your own mind.”

Parents are expected to utilise all parental authority. It is not enough to make a token effort at compliance by stating a few phrases which are not designed to positively encourage a child to spend time with the other parent.

If the child refuses, the parent should not argue that their obligations under the order are satisfied merely because they have made the child available at handover.

Hopefully, with positive reinforcement from the delivering parent, the child will become more inclined to spend time with the collecting parent. However, this is not always the case. Forcing children of 16 or 17 years of age to follow a parenting order is often a fruitless task. In this situation, a parent must act in the best interests of the child, even if that child may not see it so at the time.


Balancing parental obligations

Depending on the circumstances of the case, the Court may accept that other factors may contribute to a childs resistance to spending time with the other parent.

These factors include the impact of parental estrangement/alienation, hypersensitivity to a parents emotions, a childs mimicking of the other parents emotions and/or a child may simply develop a preference to stay with one parent due to the nature of that parents lifestyle, living conditions, or the strong bond shared.

Determining the root cause of a childs refusal to see a parent is vital to assist a child to transition between two homes.

If a parent believes that a child is at an unacceptable risk of physical or psychological harm in the care of the other parent, then that parent needs to balance their obligation to protect the child against the requirement to facilitate time with the other parent. Legal advice ought to be sought if a parent has any concerns regarding the safety and welfare of a child in the care of the other parent.