Are you at risk of breaching court orders? When you have court orders relating to your parenting arrangements, it’s vital to follow them to the letter to avoid a potential breach, and facing penalties. But it can be a very challenging task if you have a child (or two) who just don’t want to comply with a court-ordered schedule for contact with their other parent. You can be at risk of breaching court orders when you have personally done nothing wrong. S0, in situations where a child refuses to follow family court orders, what should you do? We take a look at how you might best manage the situation when you are at risk of breaching court orders.
If there are court orders in place stating that the child is to spend time with the other parent, then missing out on scheduled contact time can cause you legal problems, because you are breaching court orders. When your child refuses to follow family court orders, it’s distressing for everyone. But there are some small actions you can take which will help the contact happen—and if need be, prove to a court that you have not engaged in parental alienation but are actively encouraging and facilitating the contact, as far as you are able.
Here are some general tips, however always make sure you see a family lawyer for guidance tailored to your specific situation, if you are at risk of breaching court orders.
1. Attempt to bring the child to the changeover
You must follow the court orders regarding bringing your child physically to the designated changeover location. However, the courts require that you act “reasonably” to make the child available to the other parent. This is quite vague but certainly does not mean enforcing the contact by dragging your child by the scruff of his neck to your co-parent’s car. Physically attempting to force a child to attend scheduled contact is not expected from parents. Of course, much depends on the child’s age and maturity. It is naturally far easier to do this with a toddler than a recalcitrant teenager and a court will take this into account in any contravention proceedings.
2. Genuinely attempt to facilitate the contact to avoid breaching court orders
As well as acting “reasonably” to make the other child available to the other parent, you need to take active, positive action to help change your non-compliant child’s attitude. You can’t simply bring the child to the changeover and then behave in a way that sends the child the message that they don’t have to go if they don’t want to. You must behave in a way that facilitates the visit going forward.
This means encouraging the contact, emphasising its importance and the fact that the court has said the contact must occur. Dwell on the positives—that the child will enjoy the time with the other parent, and that you’re happy for the child to spend time with the other parent (and be genuine: don’t contradict this with incongruent body language or commentary!). The key is to help your child look forward to the time instead of dreading it or feeling guilty about going.
3. Let the other parent know what’s going on
Your court orders will include the duty to communicate with the other parent if the child is unwell or otherwise won’t be attending a scheduled contact. If your child is refusing to attend the changeover, let your co-parent know in a way that can be documented so there’s proof of exactly what you’ve told the other parent and when. Explain the problem and detail exactly how plans have changed, and where your child will be instead of going to the scheduled contact.
Should your situation end up in court for contravention proceedings, the court will look much more favourably on a parent who has done their best to immediately update the other parent if a child is refusing visits rather than simply withhold the child with no explanation.
4. Listen to your child
You need to understand why your child doesn’t want to spend time with the other parent. Talk to them and listen to their feelings and acknowledge how they feel. Try to figure out what the issues are so that they may potentially be resolved. What reasons does the child give for not wanting to spend time with the other parent? If it’s appropriate and won’t unduly further stress the child, explain to them that breaching court orders is a very serious issue and that there may be legal consequences.
Common reasons for lack of cooperation from children often include a child simply disliking the discipline or rules in the other parent’s home, the other parent living a long way away from the child’s familiar activities/friends etc, the child disliking the parent’s new romantic partner or other new members of the household, and so on. Many of these issues can be resolved with the right interventions. Perhaps the contact with the other parent is still relatively new and the child might need a slower transition.
But the non-compliance might also stem from something that has happened in the other home. You’ll need to try to find out why the child is resisting contact—being careful not to interrogate the child!
5. Take action if there are safety issues
If you discover (or suspect) there may be issues relating to safety or well-being at your co-parent’s house underlying the non-compliance, then you must take action. Don’t simply stop contact—it’s necessary to seek court intervention so get legal advice.
6. Keep transitions easy
When contact does occur, be calm and efficient and make them fast. Have everything ready, and make goodbyes quick and reassuring. You might like to read our recent blog on managing changeovers.
7. Try to work together with your co-parent to avoid breaching court orders
Apart from letting them know what’s going on, involve them by clueing them up on anything you’ve learnt from your child that could lead to constructive problem-solving. You and your ex ideally could work together on a plan to resolve the situation as peacefully as possible. They may have other ideas and strategies that can help, as well.
8. Open up communication between the parent and child
Enable them to have phone or video calls while the child is refusing to attend visits. This can help your co-parent try to tease out and repair any issues that are causing friction.
9. Consider family therapy
Family therapy can be a great way to create a space to discuss whatever the issues are. Having a neutral third party involved can help things stay amicable and a trained professional will have insights and strategies that may not have occurred to you.
10. Honestly ask yourself if you could be influencing your child
Take a deep breath and ask yourself the tough questions about your own possible responsibility for your child’s attitude to their other parent. When you were upset during the divorce and things were fraught, did you indulge in bad-mouthing your ex? Or in other ways, have subtly given the impression that your ex is a terrible person, due to your own emotions about your relationship?
Have you interrogated your child when they’ve returned from their other parent’s house, making them feel uncomfortable and disloyal? Have you discussed court proceedings with the child, again potentially causing loyalty conflicts?
It’s vital that you can apply self-awareness to the situation and recognise if your behaviours could be contributing to your child’s attitude, so that you can make the necessary changes in your own behaviour.
11. Protect yourself
If your child resolutely refuses to follow family court orders, what will the courts do? It’s possible that your co-parent will apply to the court for you to be charged with breaches or contraventions of the parenting orders. However, there is a defence to contraventions, of having a “reasonable excuse” for a breach.
If you have reasonably tried to have your child comply with orders and genuinely attempted to facilitate it and failed, you will be in a better position to argue that you had a “reasonable excuse” for the contravention. The courts do not expect parents to be magicians and understand there are times that the parent does not succeed despite their best intentions. But this cannot be taken for granted. A parent who has genuinely, and reasonably tried will typically not be punished for their inability to enforce the agreement.
The most important thing is to remember to take steps to protect yourself along the way to first avoid breaching court orders or to take steps to mitigate any breach and to protect yourself. Document every incident of contact refusal as soon as possible, detailing the circumstances around the child’s non-compliance, and your attempts to inform the other parent about the circumstances, and email that record to yourself so that it is times stamped electronically as a contemporaneous record.
Ensure you follow the steps above and see a family lawyer for advice. These actions will all assist you should you find yourself facing any court action for your child’s refusal to follow family court orders.
If you have any questions or need legal advice regarding co-parenting arrangements, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
