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Child Handovers

Co-parenting after a separation can be stressful and complicated, especially when it means shuttling a child between two households. This process is made particularly difficult when the relationship between the co-parents is strained. It can be extremely traumatic for a child to feel caught, quite literally, in the middle of combative parents. As such, it is in the best interest of the child for handovers to be as cordial and calm as possible.

Child handovers

When parents share responsibility for a child, they need to establish an arrangement for child handovers that is practical and suitable for everyone. During a handover, is important to be on time, organised with the child’s belongings, and polite, as this approach supports the child during this potentially difficult process. It is generally thought best to use a neutral handover location, rather than collecting or depositing children at the home of the other parent. Many parents use convenient car parks or fast-food locations, but it is often better for parents to utilise a controlled location such as the child’s daycare or school as a handover location. This allows one parent to drop off the child, and the other parent to collect the child at the end of the day. This arrangement provides a seamless no-contact system of handover, allowing the child a whole day to process the change in circumstance. Of course, the school or care centre must be informed of the arrangement and also updated on any changes to ensure the safety of the child.

When either party has safety concerns about handover because of a history of family violence or other threats of harm, the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) may order that any handovers take place in more secure locations. For instance, in Madar & McCordmack (No 2) (2022), the court ordered that the parents should minimise direct handovers as much as possible, and in the short term, conduct handovers at a city police station. The mother was in support of this venue for handovers on the basis of safety concerns, and because the child felt comfortable there.

Other parties attending handovers

In some cases, where a party is concerned about their ability to remain cordial, it may be helpful to have a calm third party attend the handover. In the case above, the court and mother encouraged handover between the mother’s parents and the child’s father. In practice, issues may arise with having other individuals at the handover, especially when they are new partners and stepparents. In White & Kenney [2022], the court heard that most of the acrimony between mother and father during handover related to the presence of the mother’s new partner. The father believed that this new partner took delight in arrogantly imposing himself on these occasions, even though this was not the “proper business of a stepparent”. The court did not agree and found that it was the father himself that was antagonising the situation. In that case, the court ultimately ordered that the child should reside with his father in blocks of time, to minimise direct contact between handovers.

Filming handovers

There is a growing incidence of parents filming handovers, predominantly to document “bad behaviour” from the other parent or to have a record of their own behaviour. While this seems like a sensible step to take, recording a handover can be a mistake. Whether the recording is secret or not, the legalities of filming others can be complex. In many jurisdictions, it is illegal to secretly record a conversation with someone, while in others, the act itself is not illegal, but the content of a secret recording may not be circulated.

The Evidence Act 1995 prohibits the admittance of evidence that was obtained improperly. Therefore, in some cases, even if a recording of the handover provides evidence of bad behaviour by the other parent, it may not be admitted by the court. However, the law does allow for exceptions based on probative value and the special circumstances of the case. Essentially, if the material acts as impartial evidence contributing to justice, it may be admitted even if it was made in contravention of the law. In the family law context, covertly filmed evidence has been admitted when family violence was alleged in a parenting matter.

It is important to remember that recording handovers can also negatively impact on the parent’s credibility in the eyes of the court. It can demonstrate dishonesty and selfish conduct, showing a lack of insight and even harassment of the other parent, which is likely to further inflame hostilities.

Case study

In Griggs & Oduro (No 2) [2022], the mother applied for an order that the father have no further contact with their child, based on alleged child abuse. These abuse allegations had been thoroughly investigated and found to be unsubstantiated. Despite these findings, the mother continued to film each handover with the father, to provide them to the South Australian Police as evidence of the child’s distress. While the tapes were illegally obtained (as consent to be recorded is required under the Listening and Surveillance Devices Act 1972), the court allowed them to be admitted into evidence in the family law matter. However, the tapes did not benefit the mother as she expected. The court found the tapes “enlightening”, as the father’s conduct displayed at the handover was appropriate and child-focused, maintaining a soothing demeanour with the child in difficult circumstances, though he was unaware that he was being recorded. By contrast, the court found that the mother exacerbated the situation by lingering nearby, fuelling the child’s anxiety. The court granted an injunction preventing both parties from videotaping or recording future handovers.

In fact, the court found that, due to the mother’s conduct and failure to support the child’s relationship with the father, it was not in the best interests of the child to remain in the current living situation. The court ordered that there should be a reversal of primary care, with the father taking on sole parental responsibility, and the mother’s time with the child to be temporarily suspended and eventually increased over time.

When parents have conflict over handovers, it is important to reach out to a lawyer for advice on how to proceed. There may be an amicable solution, or the matter may need to escalate to a court hearing. Please get in touch with the family law team at Armstrong Legal on 1300 038 223.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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