Jordan & Jordan 2010 FamCA 323

A couple had two children aged 7 and 5 years who had lived with the mother.  The mother had declined to facilitate contact with the father because of the father’s history of family violence including verbal abuse and threats to her, together with his use of alcohol and cannabis.  There was no allegation that the children had been directly abused by the father, but the children had been exposed to heated arguments between the parents (adult disputes).

Both parents sought sole parental responsibility, and for the children to live with them and to spend time with the other parent.

The mother gave evidence in court that she wanted the father to be excluded or removed from the lives of the children, and considered that this would not harm the children (meaningful relationship).  Over time the mother had vacillated strongly about orders she sought.  The mother stated in court that she considered that the father’s rights should be foregone because of his behaviour towards the mother (align, alienate).

A family consultant noted that both children engaged emotionally with the father, with one child being more subdued.  The consultant distinguished between the mother’s verbal and emotional consent about contact with the father, saying that the mother gave lip-service to the idea of contact but withheld emotional approval for contact, and this would be confusing for children who respond intuitively to emotional cues, making it harder for children to distinguish their emotions from the mother’s emotions (differentiate own/other emotions).

The judge found that the father’s verbal abuse and threats amounted to family violence where police had been called and the father had been convicted (personality aggressive).  The judge accepted that this was past behaviour by the father who showed remorse and appeared to have changed (capacity to change).

The judge noted that equal shared parental responsibility is not viable once a finding of past family violence had been made, and that a decision was required about which parent could best meet the interests of the children.  The judge considered there was no prospect of the parents working harmoniously to co-parent.

The judge noted that neither parent wanted to communicate with the other, so there was no continuing risk of the children being further exposed directly to disputes between the parents.

The children were attached to both parents.  The judge considered that the mother was not committed to promoting a close and continuing meaningful relationship with the father.  The judge considered that the mother was incapable of providing for the emotional needs of the children due to her desire to completely severe their links with their father, and to her beliefs that this would not harm the children, and that she knew best.

The judge noted the benefits of a communication book when a couple cannot communicate verbally in a civil manner.

The judge ordered:

• the mother have sole parental responsibility and that the children live with the mother
• the children spend time with the father
• use of a communication book
• the case be listed for review