Spends Time With and Communicates With
A parent who does not have a ‘live with order’ may apply to spend time with a child. There is no automatic right to spending time – the primary carer does not have to allow time unless there is a court order that requires this. However, time will usually be ordered, and unless the child is at risk, then it is better to provide ‘time with’ without court orders.
The Court will look at whether spending time by a parent with a child will promote the welfare of that child, and in most cases the Court believes that it will. Grandparents or any other person who has an ongoing relationship with the child may apply to spend time with a child. Grandparents are usually expected to spend time with their grandchildren while the child is with the grandparent’s son or daughter.
The main purpose of spending time is to maintain a continuing relationship between the child and both parents. This means that the parent should keep the child in their personal care throughout the spending time period. Although it is often difficult, both parents should encourage the child to view spending time positively so that the child does not feel torn between the parents.
Types of Orders
Spending time should be organised to suit the particular circumstances of each family. There are no fixed rules about what sort of time may be ordered. Reasonable time may be ordered and is completely flexible leaving it to the parents to organise times. Fairly good communication and cooperation is required for this to work. Usually, defined time is ordered which sets out the exact time and place for time to occur. Examples of usual defined time orders based on the age of the child are:
- Babies and toddlers – day time only, as frequent as is practical, from one to two hours for little babies to all day on either a Saturday or a Sunday every weekend as the baby gets older. Overnight ‘time with’ is generally not appropriate until school age unless the parent has been involved in the daily care of the child before separation.
- School aged children – every alternate weekend between 9am Saturday (or 6pm Friday night) and 5pm Sunday night, plus half of school holidays, alternate Christmas days and birthdays and special visits on Mother’s Day, Father’s Day or other special days.
Supervised time is ordered if there is some concern that the parent does not have appropriate parenting skills or that there is some risk to the child’s safety. In Hobart, this is facilitated through the Children’s Contact Service. Time can be suspended or denied entirely by an order of the Court if there is unacceptable risk to the child.
The Court will only deny time in cases where there are exceptional circumstances, such as where the child would be harmed by time spent or continued contact with a parent. Examples of such exceptional circumstances might be when the parent has physically or sexually abused that child or if the level of tension between the parties is so great that continued ‘time with’ will distress both the child and the primary carer.
In a case where there is an allegation of sexual abuse, the Family Court need not decide whether or not sexual abuse has occurred. The question the Family Court must answer is: would supervised or unsupervised time pose an unacceptable risk to the child of sexual abuse, or of other physical, emotional or psychological harm or disturbance? If the Court does decide that abuse has occurred, it is on a civil standard of proof – that is, on the balance of probabilities – and based on the proper rules of evidence. If the evidence is not clear enough for the Court to decide whether or not the abuse occurred, it must decide whether or not the risk is unacceptable in light of the serious harm a child suffers as a consequence of sexual abuse.
Enforcing Spend Time Orders
The Family Court does not oversee or follow up court orders. If there is a breach of the order – for example, the parent repeatedly fails to make the child available for ‘time with’ or turns up at the wrong time or on the wrong day – it is best to contact the Family Consultants at the Family Court or attend mediation at a Family Relationship Centre or other mediation agency who may be able to assist the parties to resolve their problem.
If serious breaches continue to take place, a contempt of court action may be taken against the parent who is breaching the orders.
The Family Court views parents who do not comply with orders very seriously and punishes those who contravene its orders. This can be a fine, compensatory ‘catch-up’ time for the time missed or, in extreme circumstances, jail. However, if the child is ill and a medical certificate has been obtained, this is considered to be a legitimate excuse for not meeting time requirements and is not a breach of the time orders. The Court will not force a parent to see their child if the child refuses to spend time with the parent/relative but will require independent evidence to support such a claim.