It is a sad fact that children are often the ones most scarred emotionally during a divorce, but it need not be that way. Often, divorcing parents, with the help of family lawyers are able to settle their differences without any vitriol, and as such the children are saved the ordeal of being caught in the middle of their warring parents.
Unfortunately, the opposite can happen with each parent determined to defeat the other with regards to how the divorce is settled, and part of that involves the children being used as pawns, especially with regards to visitation.
As part of a divorce, a court may order that one parent is the one with whom the children live and that the other parent is entitled to visitation including periods where the children live with them during periods such as school holidays, for example. Normally, although not always, it will be the children’s mother that they live with, and their father who has the visitation rights.
Despite that court order being in place, it can be the case that the children’s mother decides that she is not going to allow visitation to occur. Now, she may believe she has a perfectly reasonable justifications for taking this action. These may include the children’s father stopping child support payments, him continually not showing up for visitation, or he may not keep to the agreed pick up and return times.
If any of these are indeed happening, the mother has a perfect right to instruct her family lawyer to request the court alter the visitation order given that the children’s father is not complying with it. However, no matter how strongly she feels about her ex-husband’s behaviour, the children’s mother cannot simply cast aside the court order and stop visitation.
If she genuinely feels that visitation should not continue, as we mentioned, a mother can go to court to argue that case. However, it is highly unlikely that any court in Australia is going to stop a parent from seeing their children unless they have clear and undeniable evidence that the children are at risk.
Even if the court believes that the father is not treating visitation in the way that it should, or if they have some doubts about the father’s character, rather than stop visitation completely, a more usual course is for them to order surprised ort limited visitation.
That being said, it is not wise for a father to steer away from the original visitation order. if they think they can turn up when they want, return the children late, or simply not turn up for visitation, he is putting at risk, not only visitation, but more seriously the relationship he has with his children.
On the other hand, it could be that the father is complying with the visitation order to the letter, but the mother is causing the problems, by taking the children out when visitation is due to take place, or simply refusing to allow the father to see his children.
If this occurs, the court should not be the first option. Instead, it might be that reaching out to see if there has been any kind of misunderstanding and if that doesn’t work, asking a lawyer to write to their ex-spouse.
When a court hearing cannot be avoided the process which applies is called filing a contravention application and done along submitting the evidence that proves that the other parent is not complying with the original order.