Monday, 21 September 2009

Now an express positive obligation to comply with parenting orders: Family Court

Parents often ask- what if the children don't want to go? What do I do?

The Family Court in the recent case of Ackersley and Rialto has answered this by once again emphasising the positive requirement of parents to comply with parenting orders. The significance of the case is that it no longer appears to be an implied duty under the orders, but an express duty.

Some history

The leading case prior to this was in Stevenson v Hughes(1993), a case in which the child did not go to see his father or speak on the phone. Justice Moore found that the mother had contravened the orders, and her Honour's comments were noted with approval on appeal:


There is also implicit in every order for access an obligation imposed upon
the custodian to take reasonable steps to do what they can to ensure that the
stipulated contact occurs...

I have already made reference to the implied obligation of the custodian to
take reasonable steps to ensure that the access stipulated in an order takes
place. Words and actions have meaning in context and affect. It is not a
sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter. Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance
by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation...

... the respondent has adopted on the occasions when those expressions have
been used a passively obstructive stance inconsistent with her obligations under
the order. (emphasis added)


Still an implied duty or now an express duty?

Justice Cronin in Ackersley and Rialto held that because of the 2006 changes to the Family Law Act, there was now an express duty to comply with parenting orders. His Honour came to this conclusion because of the requirement in the Family Law Act to attach a form setting out the obligations under orders. The form states:

Your legal obligations
You must do everything a parenting order says.
In doing so, you cannot be merely passive but must take positive action and this
positive obligation includes taking all reasonable steps to ensure that the
order is put into effect. You must also positively encourage your children to
comply with the orders. For example where the order states your children are to
spend time with another party, you must not only ensure that the children are
available but must also positively encourage them to go and do so. There are
agencies in the community that can help you and your family adjust to and comply
with the order (see details on page 1).
The order remains in force until a new parenting order or parenting plan changes it in some way.
Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations,
you enter into a parenting plan with the other party.
Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.
If you and the other party agree to change the arrangements, you may enter into a parenting plan or apply for consent orders that vary the existing orders. For more information about consent orders, go to www.familylawcourts.gov.au, call 1300 352 000 or visit a family law registry near you.

If you want to change a parenting order and the other party does not agree, family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. If an agreement cannot be reached, you may consider applying to a court for orders.


His Honour stated:


It is debateable therefore whether there is any basis to contemplate implied
provisions in orders ...
Thus, going back to the starting point, to have contravened an order therefore, a person bound by it must either have intentionally failed to comply with the obligations created by the order or to have made no reasonable attempt to comply with those obligations.

His Honour was of the view that the wife had contravened the orders:


I have already found that the wife could have done more. The question is
whether that is a breach of the obligations annexed to the order. In my view
there were a number of options available to the wife other than simply forcibly
putting the children out into the hands of the husband. Accordingly and for
those reasons, because of the obligations contained in the order, I find that
the wife has made no reasonable attempt to comply with the order ...


What had the wife done?


His Honour stated:


In respect of the nature of the relationship between the wife and the
children, she confirmed that she spoke to them as honestly as possible and that
she tried to put a positive slant on the orders by saying that they may turn out
better than the children thought. However, she conceded that she made it clear
that she had told the children that she was not happy about the orders and that
they knew that. Whether that was the way she expressed it or not, matters
little. The children clearly understood the orders of the Court were not their
mother’s proposed outcome in terms of what she saw as being in the best
interests of the children. It must be remembered that these children are
emotionally dependent upon the wife, she being their primary carer. That gives
rise to a dilemma. It was suggested to the wife that she could have marched the
children to the door but her response was that she could not do that if they did
not want to go. It was suggested to her that having regard to their
vulnerability, she could direct them and they would obey. She disagreed because
there was a thinking process with the children.


A critical piece of evidence is the fact that when she spoke to the children whilst the husband was on the doorstep on 24 July, she told them that their father would like to speak to them. She did not say to them that he was there to pick them
up.
Her view was the children would not have accepted that. If that is
so, it is worrying.


The husband was critical of the wife for not opening the door of the home. The wife’s response was that she did not trust him. Her view was that she believed he would have come in and that he and possibly the children may have been hurt and “emotionally scarred”. No-one will know whether that is the case because the attempt was not made. The children must have known that their mother was not going to force them out nor open the door to allow their father in. The lack of forceful response empowered the children. I do not advocate that the wife should have physically dragged either or both of 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 that they were going with their
father rather than it was simply expected of them.
The wife made clear
that she had told the children that what they were doing was unfair and that
their father had entitlements but those messages had a hollow ring
because they were not backed up with any action.


It may not have been possible for the wife to take such forceful action because she may have appeared hypocritical to the children having regard to what she told them after the March 2009 orders and how they perceived her stance as not accepting the
orders being in their best interests. But therein lies the dilemma for the wife.
It was the Court who chose the orders and made the finding that it was in the
best interests of the children that certain things occur. It was her
responsibility not to involve the children in the adult concepts. It was also her responsibility not to be critical of the Court orders directly or by inference.
It was her function to ensure that the children carried out what the Court had found to be in their best interests. If it transpired that that was inconsistent with what she had told the children prior to the March orders, she has to take responsibility for that position. She had the responsibility of
ensuring after March 2009 that if the children claimed that they would not
accept the orders, as a responsible parent, she would discipline them in the
same way as any other parent would discipline a child by removing privileges if
the child was defiant. (emphasis added)

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