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Entrenched: When time is not on your side

By October 23, 2021February 23rd, 2024No Comments

Entrenched: “Time is of the essence” in many family law matters. People need to be able to move on with their lives and not be left with endless uncertainty, and that’s why there are, after all, specific deadlines in many areas of family law. However, even when people meet all their rules and deadlines, the unacceptable delays in the family court system can mean their matter still takes several years to resolve. And unfortunately, this means that existing situations have the potential to become entrenched in the intervening years. And once things are entrenched, it can be exceedingly difficult to change them. Here’s when time is really of the essence in family law matters—in these circumstances, it’s very important to seek urgent family law advice early on.

We’ve noticed several reported judgments lately which have involved a situation where because of the long time taken for the case to be resolved by a court, so much time has passed that the existing arrangements have then become entrenched. This may be to the detriment of the parent who is trying to seek a court-ordered change.

For example, in a recent case, a mother with primary care of her five year old son unilaterally changed the child’s first name. And by the time the father could object to that in court, the use of the new name had become so entrenched, and the child had become so used to being called that name, that it would be too difficult for the boy to have to change again. The unfortunate aspect is that the mother had constantly flouted court orders that she was to use to the child’s name as in his birth certificate.

Another recent case involved a young girl so enmeshed with her mother and alienated from her father that she refused to stay with him and ran away if forced to. This left the court grappling with the problem of what to do if a child places herself at risk because of the family court orders that were made in her best interests. In the end, the court felt it was now left with no option but to allow the girl to remain in the mother’s primary care, with little hope for the father now having any relationship with her.

But again here, the passage of time was a big factor. The dispute had dragged out for many years and the child had now been refusing to see the father for a long time.

Early intervention in cases involving parental alienation behaviours are critical, with intensive therapy often required. Sometimes, a change of residence from an alienating parent is ordered. The key, again, is nipping the alienating parent’s behaviour in the bud. And this is where effective compliance and contravention measures are so important.

Another area where time is of the essence is cases involving parental abduction and Hague Convention proceedings. Hague Convention cases, for example, require courts establishing a child’s “habitual residence”, which is where they will be allowed to live. However, once a child has been living in another country for a period of time, that country can then in fact become the child’s “habitual residence”, because the child has become so entrenched in its new living arrangements, legal or not. Again, it’s super important cases like this to be resolved quickly.

It’s important that there is public confidence that court orders are swiftly enforced, before entrenchment occurs. It will be interesting to see if the new National Compliance List will restore confidence and bring better results in the family court system.

The big court merger may indeed simplify the court system for families. Its streamlining might well save money. But most importantly, the system needs to speed up the delivery of justice.

In the meantime, if you have a family law matter that carries a risk of an unsatisfactory situation becoming hopelessly entrenched before you can get it in front of a judge, then make sure you look at all your avenues for Alternate Dispute Resolution processes, like mediation, arbitration and collaboration. These processes will all provide a swifter resolution to your matter than the court process would.

If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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