What to do when children don’t want to go home

15th February 2015

By Lisa Wagner

What do you do if your children don’t want to go home after contact? Have you ever been faced with this dilemma at contact changeover times?

We are frequently asked questions like “Do I have to return the children?”

These sorts of questions often arises in the context of returning the children to the parent with whom they normally live after they have been away on holidays with the other parent.

Of course, the right answer to that question is only able to be given when all of the circumstances of the particular family situation are known. However the paramount consideration in all parenting cases is the best interests of the children. So how does this overriding principle help answer the question?

Essentially, it is necessary to weigh up all the necessary factors and then balance the two primary considerations namely:

  1. The benefit to the child of having a meaningful relationship with both of his or her parents; and

  2. The need to protect the child from physical and/or psychological harm from being subject to or exposed to abuse, neglect or family violence.

These primary considerations must be considered in every parenting case.

In circumstances where there are no parenting orders in place the Court must consider all relevant matters including the age and wishes of the child, his or her relationship with both parents, the attitudes each parent takes to promoting the child’s relationship with the other parent and the current circumstances of the child and how those circumstances have arisen in order to help it balance what is best for the child.

So, if a child of tender years who has enjoyed a wonderful “Disneyland-esque” type holiday with the parent with whom they do not normally live, throws a tantrum at the prospect of returning to the routine of home then it is unlikely that those facts will support the “holidaying” parent retaining the child. This is even more so in circumstances where that parent may have coaxed or influenced the child to behave in that way.

The Court would expect such a parent at the end of the holiday to behave responsibly and in the best interests of the child and return him or her to their primary home notwithstanding that they might have been having a meltdown.

On the other hand, if two teenage children, over the course of an extended period of time (be it holidays or not), at the end of a holiday disclose certain concerning matters relating to the home of the other parent and indicate strongly that they wish to stay with the “holidaying” parent then such circumstances may warrant a change in the living arrangements for those children. However it is only in very limited situations that any change can be enforced simply by retaining the child and not taking steps to formalise this arrangement. The expression “possession is nine tenths of the law” certainly does not apply when it comes to children, nor should it.

The appropriate course in all cases, including where there is an unacceptable risk to the child, is to file an urgent Application setting out the Orders you seek, namely for the child or children to live with you and providing an Affidavit in support of that Application setting out the reasons for the Orders sought. These reasons may include:

  1. The children are refusing to go to school if they are returned to their “resident” parent;

  2. Or, as is commonly the case, the children are threatening or actually running away; or

  3. In more difficult cases a child or children may threaten harm to themselves or to others.

If Court Orders are already in place which require a parent to return children to the other parent at a certain time and those Orders are disobeyed then the breach can result in a parent being found in contravention of the Orders and facing penalties including fines and/or imprisonment (however this rarely occurs). It is important to understand though that a parent who has been able to show a “reasonable excuse” to explain why they have breached a parenting Order can successfully defend contravention proceedings.

At all times it is crucial to place the child’s best interests as your priority. Taking a step back and reflecting on the overall situation can sometimes help a parent to make the best decision in what can be understandably an otherwise extremely harrowing dilemma.

If you are experiencing these dilemmas and really don’t know what step to take next or how to handle the situation and do what is best for your kids get in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer accredited family law specialists to help you with parenting and all family law matters.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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