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19 December 2011

Children’s wishes expressed at the end of holiday visits – even for children, the grass can be greener on the other side of the fence

During school holiday periods, children frequently have the experience of spending considerably more time than usual with the parent with whom they do not usually live.

During school holiday periods, children frequently have the experience of spending considerably more time than usual with the parent with whom they do not usually live.

Particularly during the long summer holiday period, a child might spend up to 3 or 4 weeks with, for example, their father when they normally live with their mother and spend shorter periods of time with their dad.

This experience can give the child a different view of their parents and expose them to a very enjoyable time spent with the ‘holiday’ parent.

Everyone enjoys a good holiday

During the school year, one parent might work more and have little time to spend with a child who lives with them for only a few days per fortnight. While many parents enjoy a substantial period of time with their children even if their children do not live with them, the most common arrangement for court orders remains that a child might spend the majority of time with one parent and perhaps four or five days a fortnight (often making a long weekend) with the other parent.

Commonly, parents share the holiday periods so there are much longer blocks of time spent with the children and parents often will try to take leave to coincide with their children’s school holidays.

So what’s the problem?

It is not uncommon at the end of a holiday period for a child to express a strong desire not to return to the parent with whom they mostly live with during term time. Most parents can resolve this issue between them or the child might soon realise that the fun times change when it’s time to return to school.

However, when one parent wishes to retain the children but the other parent does not agree, what is the solution to the problem?

Important matters to consider

Clearly, the parent wanting the child to stay with them would place great emphasis on the child’s expressed wishes.

Under section 60CC(3) of the Family Law Act 1975 (Cth), a child’s wishes is one of the factors that a court would have to consider if a parent made an application to the Federal Magistrates Court for orders seeking a change of a child’s living arrangements. However, this factor is only one of a number of factors that need to be considered under the Family Law Act.

The child’s age is important when considering an expression of his or her wishes. Younger children generally have less weight given to their wishes as they are less able to contemplate the effects of a change. A teenager’s wishes would be taken more seriously by a court and given substantial weight. However, in assessing a child’s wishes it will be vital for the court to determine how genuine and permanent the preference for the parent actually goes.

A child’s express wishes might be motivated by the very natural but superficial attraction of a child to the novelty of a change or the even more natural but equally superficial reluctance to leave the other parent’s home that is, particularly during the holiday period, free from the day to day chore of homework, home rules and household duties. People often talk about the ‘Disneyland’ dad (or mum) when referring to the parent with whom the child has lots of fun on a holiday or weekend time but without the reality day-to-day life. A child can be very reluctant to leave behind the fun and games of that parent’s home.

However, even if a parent is absolutely certain that their child’s wishes are genuine and long-term, such a change will only occur with the parent’s agreement or as a result of an interim or final hearing in the Federal Magistrates Court or Family Court.

Pre-requisite for a parenting order – mandatory counselling

There is a long waiting list for trials in the Federal Magistrates Court for parenting applications. However, even before thinking about approaching the court, parents need to realise that there is no absolute right to commence proceedings for a parenting order. Generally, an application can be made only where the parents have attempted mediation and have a certificate from an accredited counsellor.

In exceptional circumstances, a federal magistrate (or a judge of the Family Court) could change the living arrangements for the child on an urgent basis where there is clear evidence that a child would be in danger of suffering (or continuing to suffer) some form of significant physical or emotional harm if returned to the other parent. In such urgent situations, the need for a counselling certificate may be waived.
Before embarking on any application to the court, it is crucial that the parent wishing to retain the child must recognise that his or her view of the other parent is likely to be biased and prone to perceiving difficulties on a larger scale than they are in reality. There is no perfect parent and it is inevitable that both parents will encounter problems in caring for their children and that the solutions to those problems may not always be ideal.

The best course to follow

A parent who holds over a child at the end of a holiday period (or any other time) runs the risk of being assessed by the court as having acted unjustifiably if family violence or abuse alleged in an urgent application is not substantiated. That parent may suffer prejudice to their chance of ever changing the parenting arrangements for their children. The court might view such a parent as being prone to over- reacting and exercising poor judgment in making such an application.

It is not wise to simply do nothing. Refusing to return the child will cause conflict between the parents and that will not help the child or maintain the improved relationship that has developed over the holiday period.
The best course of action for a parent faced with a child refusing to go home after a holiday is to proceed as follows:

1. Contact the other parent and explain the situation. Although perhaps not the most likely response, it is possible that the other parent will agree to the child remaining with the parent wishing to keep the child. Also, the child might have a change of heart after speaking with the other parent.

2. If there is no agreement between the parents, then the parent seeking the change should invite the other parent to attend counselling to discuss what might be the reason for the child’s expressed wishes and how genuine those wishes really are. In any case, the parties seeking to make an application the court must firstly obtain a counselling certificate (under section 60I of the Family Law Act) and, therefore, any application, other than one made urgently or where family violence exists, can only proceed after the requisite certificate has been filed with the court.

3. The counsellor should be an accredited family dispute resolution practitioner. This qualification allows the counsellor to sign a certificate of the kind required by the court if no agreement is reached.

4. If the parents are prepared to do so, they also might agree to attend interviews with a person who can prepare a family report to provide the parents with recommendations as to what arrangements would promote the best interests of the child. The parents and the child and any other relevant person would attend the interviews. The report writer usually would have qualifications as a child psychologist or a social worker.

5. If the parents cannot reach an agreement, the parent wishing to change the existing arrangement is then able to make an application to the court filing the counselling certificate. Any family report prepared can be used as evidence to support court orders for an arrangement as recommended by the report writer.
Participation in mediation and counselling and obtaining the assistance of other appropriately qualified professionals result in a child’s wishes being heard and considered, and ensure that the parents are communicating and that the matter is kept out of the hands of lawyers and the courts (at least initially).
Where there are already court orders in place, there is an additional hurdle of showing a change in circumstances sufficient to warrant a change of those orders.

Getting legal advice

Should you find yourself in a situation where your child wishes to change living arrangements following your next holiday visit, we suggest that you obtain some legal advice before taking any steps that might disadvantage you. Mediation is compulsory and the early preparation of a family report can offer useful recommendations that, even if not adopted by the parents, can offer assistance to the court in subsequent proceedings.

If a report is not prepared before commencing proceedings then it is likely that the court would order the preparation of such a report where there are mature children expressing strong views regarding their own living arrangements.

To speak with one of our team about any family law issue, please call 07 3231 2444 or email [email protected]

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Craig Turvey
Special Counsel

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