Caroline Overington | September 21, 2009
Article from: The Australian
THE Family Court has warned separated parents that they are required to hand over children for access visits, whether the children want to go or not.
While parents don't have to "physically drag" the children to the other parent, they do have to "positively encourage" them to go, and punish those who refuse.
The vexed issue of how far a parent must go to ensure that children see the other parent came before the court in Akersley and Rialto (2009), a case in which a father implored the court to "do something" to ensure his children turned up for access visits.
He had been turning up at the children's school this year, only to find they had either run away or gone home to their mother.
The mother told the court that she could not "physically force" the boys, aged 11 and 12, to see their father.
But judge Paul Cronin criticised her for not doing more to ensure they did want to see their father. He ordered the mother to deliver the children to their father if they turned up at her house when they were supposed to be with their father.
Separated parents have long been required by law to abide by Family Court orders, but men's groups have complained that the orders are not enforceable, and the children do not show up for visits.
Under changes to the Family Law Act introduced by the Howard government, the courts are trying to ensure that children have a relationship with both their parents.
Geoffrey Greene, of the Shared Parenting Council saidWe call it the closed-arm doctrine.
The parent stands there with their arms crossed, saying, 'Well, I can't make the children go, if they don't want to go'.
He noted that parents must not only ensure that the children are available, but must also positively encourage them to go.
Justice Cronin saidThere are obligations on parents, regardless of the wishes of children.
The mother had a responsibility to "discipline the children in the same way as any other parent would discipline a child by removing privileges if the child was defiant" and refused to go.
The father, 42, and the mother, 43, separated last December. The children live with their mother and see their father on alternate weekends, and Tuesday after school.
In July, the father went to the children's school and waited in the normal spot but they were not there. Their mobile telephones were switched off. At 5.30pm, his former wife called to say the children were with her, and "did not wish to go with him".
The husband's solution was "that she should tell the children forcibly, verbally and assertively that it was her expectation clearly for them to go.
But Charles Pragnell of the National Council for Children Post-Separation disagreed.
Justice Cronin saidI do not advocate that the wife should have physically dragged either or both the children outside of the house and locked them on the porch with their father.
There is a step well before that, in which the children should have been told they were going with their father, rather than it was simply expected of them.
He said the former wife had a responsibility to ensure the children carried out the orders of the court.
The wife must adopt a disciplinary approach by making clear that privileges in her household will be denied until the children comply with the orders of the court
Charles Pragnell of the National Council for Children Post-Separation saidWe come at this from the children's point of view.
How can it be in their best interests to force them into a relationship? At 10 or 11, a child can decide for themselves, but it's one of the idiosyncrasies of the Family Court at the moment, that it takes a firm line on this.
Wayne Butler from the Shared Parenting Council saidThe problem with Charles Pragnell's approach is that in many cases the other parent, for whatever reason, does not have sufficient "ordered" time required to develop a very significant relationship with the child and to reduce that time even further by allowing the contacts not to take place compounds an already existing problem.
We find that where the "Lives with Parent" encourages the contact and works with the other parent to ensure the contact is meaningful and enjoyable for the child things work very well. We have to entrench the view that already exists in law that where Parents decide to separate it is not an option to disregard the notion that children have a right to substantial or meaningfull relationship with the other parent.