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Question

Question regarding Final Family Court Orders for those with teens.
We have had final orders in place for several years with the other parent having only visits for 7hrs once per week, no overnights, no calls etc, holidays etc and I have full parental responsibility.
We spilt when the kids were 1 and 2 and the other parent had had very little influence in their lives and had basically made everything harder.
The kids are now almost 14 and 15 and don't want to have to go every week. The relationship is not good and the other parent is not a very nice person (not going into details here).
I receive conflicting information about when the kids might be old enough to decide whether or not to go or if they're stuck with the order until 18... which seems ludicrous.
They not saying they'll never go but that they want to decide when and it not be forced every week. My almost 15 year old is feeling extremely frustrated and angry about the situation and talks about "taking his dad to court" so he doesn't have to see him... I have explained that this is not how it works etc but I can't help how he feels.
Has anyone had first-hand experience here? not just hypothetical advice? I have spoken to a few lawyers and looked online and still get conflicting info all the time.
TIA

Answer

First let's LEGALEASE your words:
Here are the Facts:

1. Final Family Court Orders have been in place for several years.
2. The other parent is granted visits for 7 hours per week, with no overnights, calls, holidays, etc.
3. The Mother has full parental responsibility.
4. The relationship between the children and the other parent is strained.
5. The children are now almost 14 and 15 and express a desire not to be forced to visit the other parent every week.
6. The Mother has received conflicting information regarding when the children might be old enough to decide whether or not they want to go for visits.
7. The nearly 15-year-old child expresses frustration and anger about the situation, even suggesting legal action against his father.

Here are the Issues:

1. Determining at what age children can decide whether or not to comply with visitation orders.
2. Assessing the validity of the current court order in light of the children's expressed wishes and emotional well-being.
3. Evaluating potential legal avenues for modifying the existing court order based on changes in circumstances and best interest of the children.
4. Clarifying conflicting information on child's autonomy in visitation decisions as per family law provisions.

Analysis:

1. Determining at what age children can decide whether or not to comply with visitation orders: In family law, there is no specific age at which a child can refuse to comply with a court-ordered visitation schedule. However, the court will take into consideration the child's maturity and understanding of the situation when considering their views. This was seen in the case of Delvin & Olason [2021] FCCA 983, where X, a 12-year-old child, expressed some hesitation about spending time with his father due to previous experiences. The court noted that X’s position needed to be accommodated, supporting the view that a child’s opinion does matter in these circumstances.

2. Assessing the validity of the current court order in light of the children's expressed wishes and emotional well-being: Family Law Act 1975 s60CC lists two primary considerations in determining what is in a child’s best interests - the benefit to the child of having a meaningful relationship with both parents and the need to protect them from physical or psychological harm from being subjected to abuse, neglect or family violence. If it can be demonstrated that enforcing visitation against the children's wishes is causing emotional distress and negatively impacting their well-being, then it may be possible to argue for modification of the existing order.

3. Evaluating potential legal avenues for modifying the existing court order based on changes in circumstances and best interest of the children: The court has discretion to vary an order if it is satisfied that there has been a significant change in circumstances since the order was made (Rice & Asplund [1979] FamCA 84). In this case, if it can be demonstrated that forcing visitation is causing harm or distress to the children and affecting their relationship with their father negatively, this could constitute such a change.

4. Clarifying conflicting information on child's autonomy in visitation decisions as per family law provisions: As mentioned earlier, there is no specific age at which a child can refuse to comply with a court-ordered visitation schedule. However, their views are taken into account under s60CC(3)(a) of the Family Law Act 1975. This does not mean that the child has absolute autonomy in visitation decisions, but their feelings and preferences will be considered by the court alongside other factors in determining what is in their best interests.

The case at hand presents a situation where the children, aged 14 and 15, express a desire not to visit their non-custodial parent as per the court orders. While the custodial parent has full parental responsibility, the other parent is granted visits for 7 hours per week. The children's relationship with this parent is strained, and they now wish to have a say in their visitation schedule.

Relevant Case Law:

1. "Kazi & Kazi [2018] FCWA 61 (13 April 2018)" - In this case, the court considered the impact of family violence on parenting orders. The mother's proposal was based on fear for the children's well-being due to past incidents of violence. Here, despite the children having a meaningful relationship with both parents, it was determined that they were at risk of psychological harm in the father's care. This case demonstrates how courts consider children's emotional well-being and safety while deciding on parenting orders.

2. "May and Blackthorn & Anor [2018] FCWA 23 (16 February 2018)" - This case involved a child who had been exposed to family violence. The court considered both the benefit of having a meaningful relationship with both parents and the need to protect the child from harm. It concluded that there was a need to protect the child from harm in the father's care, which outweighed maintaining contact with him.

3. "Headley & Steners [2017] FCWA 169 (30 November 2017)" - Here again, family violence played a significant role in determining parental responsibility and visitation rights. The court ordered no contact between the children and their abusive father.

4. "Vieri & Vieri [2017] FCWA 101 (9 August 2017)" - This case highlighted that even if there are reasonable grounds to believe that a child was exposed to family violence, the court can still decide on equal shared parental responsibility if it's in the best interests of the child.

These cases demonstrate that courts prioritize children's best interests, emotional well-being, and safety when making decisions on parenting orders. They also show that courts will consider the children's views, especially as they grow older iven the age of the children and their expressed desires, along with the strained relationship with their non-custodial parent, it is likely that a court would take these factors into account when considering possible modifications to existing orders. This falls in line with Section 60CC(2A) of the Family Law Act 1975 (Cth), which provides that greater weight should be given to protecting a child from harm when considering what is in a child's best interest.

However, without more information about why the other parent was only granted limited visitation rights and no overnight visits or phone calls, it is challenging to determine how a court might rule.

In conclusion, given the children's expressed wishes and apparent distress over the current visitation arrangement, it would be advisable for the client to seek legal advice about applying to the court for a variation of the existing orders based on a significant change in circumstances. The supporting case laws mentioned here could potentially assist in arguing that the children's emotional well-being and relationship with their father are being negatively impacted by forced compliance with the current visitation order.

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