We know that going through a divorce can be difficult, especially when it presents a whole new host of legal issues and terms you may be unfamiliar with. When there are children involved, you might be worried about issues of custody, care and control and access. These issues are increasing, given that divorce numbers were at an all-time high of 7,614 in 2016. The general trend shows that the number of divorces have been steadily increasing over the years.
The courts aim to prioritise the welfare of the child. The welfare of the child includes both material and emotional aspects, as well as ensuring that the child has a stable and guided environment. Joint custody is commonly granted as the courts also take the view that it is generally beneficial to a child to have both parents involved in his/her life.
This is why it is so crucial that court orders granting access to the parent without care and control be observed and enforced when necessary.
Care and control versus Access
The difference between care and control, as well as access must be distinguished. This difference is summarised in the table below.
|Care and control||Access|
|The Difference||Who the child lives with||At designated times as agreed between parties or as ordered by the court|
|Rights of the parent||Deal with the day to day affairs of the child.||Only visitation rights and allotted time to be spent with the child. If access is in conjunction with joint custody, this parent has equal input into major decisions in the child’s life.|
What is access?
In simple terms, access means the designated times that a parent without care and control of their child has to spend with their child. This includes supervised and non-supervised access. In usual circumstances, non-supervised access is granted. Supervised access is sometimes ordered when there are special circumstances such as a history of physical abuse. The courts have a lot of discretion when stipulating access timings and prioritise the welfare of the child in doing so.
The court takes into account the wishes of the child only if they have reached a suitable age. This includes the child’s preference to the amount of time spent with the parent who has access, and the frequency of such visits. Parents can try to agree to a certain set of access terms before the court hearing and this makes the court’s job easier. Balancing these different factors, the court will then grant an access order that it believes will best fit the specific family’s circumstances.
Enforcing access orders
If your ex-spouse has breached a court order for access to your child, legal recourse is available for you. You can commence proceedings for your ex-spouse’s contempt of court when the access order is not complied with. If one is found to be in contempt of a court, he/she may be liable to a fine not exceeding $20,000 or imprisonment for a term not exceeding 12 months or both. However, imprisonment sentences for denying access are extremely rare.
To enforce the access order, you must show evidence that the other party has intentionally disobeyed or breached the order. It would also be helpful if you could show that you have attempted to gain access to your child, but you have been repeatedly denied the opportunity to do so. If the other parent resists your application to enforce the order, the process may take a long time.
One example of this process is the case of QU v QV in which the litigation process to gain access to the child lasted for over 2 years. In this case, the court found that the mother intentionally ignored the access order and denied her ex-spouse access to the child and she was therefore found to be in contempt.
Mediation as an alternative to enforcement
Mediation can be a cheaper and faster alternative than trying to enforce an order, but it usually requires both parties to compromise, which means that the terms of the access order may never be given effect. However, if the parties enter into mediation but are unable to reach an agreement, it would be open to you to end the mediation and still pursue formal enforcement of the access order.
Conversely, if the parties do reach an agreement, this would be recorded in a mediation settlement agreement which would be binding on both parties. If the parent with care and control then breaches this agreement, you would still need to enforce the agreement by a procedure that is broadly similar to the enforcement of the access order.
Divorce proceedings will inevitably affect the child. The courts do their best to advance the interests of the child above all else and to mitigate any adverse impact of the divorce to the child. Part of this is ensuring that the child has access to both his/her parents. If your ex-spouse defies the court in trying to block your access to your child, you can and should assert your rights. Take the first step by reaching out to a family lawyer to learn more about the process, in order to put a stop to your ex-spouse’s behaviour as soon as possible.