Yukio Hayashi 27 Nov 2016
Q: I am a single mother living in Sydney. I divorced two years ago and now currently live with my 14-year-old daughter. After our divorce, the court ordered that the father spend time with the daughter on Saturday and Sunday once every two weeks. The first few months were fine but recently my daughter has been saying that she does not want to visit her dad this month. The father would like to meet his daughter as usual. However, if my daughter says she does not want to meet her father, is it ok for her to not meet her father?
A: The Family Law Act is a pro-authority order which not only requires visitation between father and daughter but also orders the mother to not “hinder or prevent the visitation” (s65N(2)). Enabling the daughter to not see her father not only directly prevents the visitation rights; it is a violation of the court order as per s70NAC(a)(ii) which states “where the person has… made no reasonable attempt to comply with the order…”.
In order to satisfy ‘sufficient effort’ as per the above provision, ‘the mother must insist that the daughter visit her father’. Logically, the child’s opinion should be respected, based on Australian Family Law. Even though it may be forced, it is more important for the relationship between the father and daughter to be maintained rather than allow the daughter to not see her father. It is difficult to ascertain that the order has been met if the mother merely asks the daughter to see her father. In this case, if the father takes this to the family court, the mother may be penalised for ‘violating court orders’.
Determining how much ‘effort’ is considered ‘sufficient effort’ is judged on a case-by-case basis, taking into consideration the child’s age, environment etc and as such cannot be delineated as ‘this amount of effort is enough’.
For this consultation issue, it may be possible to ask the family court to change the pre-existing court order issued. For example, reducing the number of father-daughter visits. However, there are many cases that have occurred in the past regarding this matter. For example, there have been situations in which the court order regarding visitation has been cancelled due to the child stating that ‘I do not want to visit my father’. On the other hand, ‘the court will not change the court order on the grounds that the child decides they do not want to visit’. Regarding this matter, why don’t you create a meeting whereby you can discuss options on your daughter and the father’s future visitations?