It is important to distinguish between different parenting styles, and parental conduct that is unsafe, abusive, or not in the child’s best interests. Clients often ask us whether they have to facilitate their children spending time with the other parent in circumstances where the other parent’s conduct towards the children is unsafe, lacking or in some cases, aggressive or abusive.
The child’s best interests are paramount – this includes protecting the child from an unacceptable risk of harm;
Parenting Orders are legally binding and create obligations that you have to follow;
However, if you contravene (break/not follow) these orders, the Court has the discretion to find that you had a “reasonable excuse” for doing so;
A “reasonable excuse” can include believing (on reasonable grounds) that contravening the
Orders was necessary to protect the health or safety of the child or yourself (e.g. withholding time);
You should not withhold the child for longer than is necessary to protect the child’s health or safety.
The purpose of withholding your child from the other parent is not to punish that parent – it is to keep your child safe from harm until that parent addresses their behaviour and is no longer a risk to the child. Withholding time is not a permanent solution, and should only be done in extreme situations.
If you decide to withhold time, you need to inform the other parent why you are withholding their time with the child, and what they need to do for their time to resume. You may wish to consider family dispute resolution (mediation) to resolve the issue. If the other parent’s conduct causes you to fear for your safety, you should contact the Police.
If you and the other parent can resolve the issue (whether by negotiating directly, via solicitors, or through mediation) then you may be able to return to the previous arrangements or you may agree to modify your parenting arrangements going forward.
If the other parent files a Contravention Application with the Court (in which they allege that you have contravened the orders without reasonable excuse), the Court can:
Decide whether or not there is a contravention;
Decide whether or not there is a reasonable excuse;
Penalise a parent who has contravened without a reasonable excuse; and
In all cases, change the Orders if it is in the child’s best interests to do so.
Keep in mind that the Courts frown upon tactics that are designed to undermine the child’s relationship with the other parent.