Wade & Braum 2013 FCWA 31

A couple with 3 children separated with the children living with their mother with a shared parental responsibility arrangement.   The father sought time with the children, and this was opposed by the mother. The mother alleged that the father had exhibited family violence towards her and a child. The father alleged he had been alienated by the mother.  The mother alleged that the father had struck the youngest child (physical abuse), and the mother withheld the children from their father for 6 months.   The son informed the mother that the father had hit him after the son declined to tell the father about the mother’s visitors (report on, physical abuse).  The incident was investigated by police but was not substantiated (unsubstantiated allegation).  Both parents made allegations about the other (mutual accusations), and both wanted a trial to prove the other wrong (high conflict couple).

The mother informed an assessor that the father was controlling and abusive both physically and emotionally towards her. There were no marks on the mother or medical examinations to verify the mother’s statements.

An assessor reported that the nature of the mother’s conflict with the father could be described as attitudinal and interpersonal as she held a strong belief about the father, she was fearful, anxious, angry, hypervigilant, disappointed, distrusting, perhaps hostile and suspicious towards him and she maintained her belief that the father was aggressive, violent, abusive, traumatised the children, and that he was dangerous and was not a competent parent. The assessor described the severity of the conflict as medium as the mother:

• had strong perceptions and beliefs that the father was dangerous and cannot adequately and safely parent the children. These beliefs were strongly held by the mother and maternal grandparents and they would find it difficult to change these perceptions easily (capacity to change);
• would find it difficult to let the children speak to and spend time with the father unsupervised as she believed he was not an adequate parent and the children told her that he denigrated her, abused the son physically, and traumatised (in her view) the children;
• believed it was not only the father who was of concern but also the paternal grandfather, paternal grandmother and aunt as she believed they were a dysfunctional family who denigrated her and her family as well as not adequately and safely being able to parent the children whilst they were in their care.

The mother alleged that during their relationship the father had been controlling and both physically and emotionally abusive towards her (personality domineering).  The mother believed that the father treated the children in the same way.

The father denied the allegations, saying that he was frustrated by the mother’s statements.

The mother alleged the father had an agenda of avenging her for abandoning him, and that the father should participate in an anger management course.  The mother said she would communicate with the father only when he met her conditions (access conditional).

The father informed the assessor that he was not generally in conflict with the mother, he did not feel angry or hostile, but felt frustrated, tentative, cautious and disappointed by the mother’s behaviour. The father did not appear overly frustrated, but he felt somewhat helpless and he did not seem to feel angry, hostile and did not seem to hold animosity against the mother. The father recognised the role of the mother, felt she was important in the children’s life and that she was a good parent. He described the mother as a great, wonderful and devoted parent for the children who was a good carer and dearly loved the children. He regarded her as a good parent, but did not share her perceived concerns and allegations against him.

The assessor considered that the focus of the conflict for the father was that the mother stopped the children from spending time with him, and he was concerned about her allegations against him. The father’s conflict with the mother was described as attitudinal as he felt she denied him spending regular and consistent time with the children. The severity of the conflict from the father’s perspective was low.

Observations showed that the children behaved in a similar manner when they interacted with both the father and the mother e.g. they were happy, touched the parents physically, spoke appropriately, enjoyed the interactions, listened to the parent, and felt secure and interacted emotionally with the parent.  Observations produced no indications that the children were scared of the father or his family.  A family consultant observed the father interacting with the children and saw no evidence that the children were afraid of their father.

The consultant reported that the mother held a strong belief that the father posed a danger to the children and that supervision was required during the father’s access.  The children repeated views they had heard expressed in the mother’s house (coached).

The consultant reported that the two sides of the family used different childrearing methods with the children but did not communicate (non-interacting families).   The lack of communication between the parents introduced a risk that children might inadvertently relay misleading information to one parent in their desire to please both parents.  The youngest child behaved differently in the two family contexts, expressing anxiety when with the mother, and feeling secure when with the father.  The child felt he could not relay his positive experiences with the father to the mother, creating an inner conflict for the child about how to please both parents.

The assessor expressed a view that the family dynamics explained the children’s behaviour:

• the children were conscious of the feelings, anxiousness and attitude of the mother and her family towards the father and they projected the same anxiousness and views about the father
• all three children had positive experiences with the mother and her family but these family members did not encourage the children to spend time with or show any significant positive attitude towards the father or his family
• the children had learned, directly or indirectly, that two separate family systems operated and that the mother and her family system had significantly negative views about the father and his family, and the children aligned with the mother
• when the children were with the father and his family they were secure, happy and enjoyed the time they spent with him, but they could not relate these positive experiences to the mother and her family as it did not fit the mother’s experiences and views of the father. This left the children, especially one, with inner conflict and anxiety about how to please both parents as this was not possible given the parents’ views about each other.

The judge found that the mother’s affidavit contained 460 paragraphs that were replete with criticisms of the father, with not a single paragraph containing a positive comment about the father, showing no credit towards the father or towards family members who supported him (credit nil).  The judge noted that hearings were a time to promote the best interests of children rather than to denigrate parents.  The judge found that the mother’s wide ranging criticisms of the father were disproportionate.  Most allegations made by the mother were only marginally relevant to parenting matters.

The judge found no substantiation for the allegation that the father had engaged in a pattern of violent and abusive behaviour, and found that the mother’s allegations were unfounded or unsubstantiated allegations.

By the time of the hearing, the couple had agreed by consent on a new time-share arrangement.

The judge did not grant sole parental responsibility to either party as it appeared that despite their friction the couple could communicate about major issues affecting their children, and the judge continued shared parental responsibility.