CHEEVER & BARRIE 2012. FMCA FAM 869

A separated couple had 2 children aged 10 and 12 years. The children had been exposed to 5 years of bitter dispute between the parents. The mother alleged the father had a mental health condition that resulted in him behaving in an erratic and threatening manner. The father viewed the mother as being manipulative, inflexible and vindictive.   The older daughter had no contact with the father for the last two years, did not want to communicate further with the father, and did not want to participate in counselling to promote contact (reluctant to contact). The younger daughter did not want to be away from her mother for a week.

The father accused the mother of trying to alienate the children from him. The father noted a time when one daughter asked to return early to be with the mother, and he found that the mother was waiting for the daughter as if the decision had been pre-arranged.

The mother considered the children had become alienated because of the father’s attitude of not negotiating with the children, by taking an attitude that upset both children of “My time, my call.”  The father spoke to the children about their obligation to see him.

The mother reported that the father had not been actively involved with the children prior to their separation (contact nil). The father reported that he did provide practical  care for the children while they were with him as they were well fed, were organised for school, were organised to help at home, and their homework was always done.  Evidence was given that the older daughter was emotionally withdrawn from the father.

A family consultant recommended that the younger daughter aged 10 years was too young to make a decision not to see the father, and recommended that she participate in counselling to maintain contact with her father (capacity to decide).

The judge considered the mother’s evidence about the father to be unrelentingly negative, and that the mother adopted rigid positions whereas the father made concessions (personality rigid).

The judge noted the rebuttable presumption that it is in the best interests of children to have a meaningful relationship with both parents.   The judge distinguished between assessing the current parent-child relationship from a prospective relationship that could be achieved if a court frames suitable orders.

The judge noted that both children identified the mother as being the parent with whom they had a stronger emotional relationship.  The judge found that the older child did not have a meaningful relationship with her father.

The judge found that the prolonged conflict between the parents had adversely affected both children, resulting in them becoming anxious. Neither parent had been able to protect the children from the effects of their conflict.   The judge saw no prospect that either parent would change significantly in their attitude towards the other parent, as neither parent appeared willing to develop sufficient respect to consult and trust and make a genuine effort to agree about major long term issues affecting the children. The judge concluded that the presumption that equal shared parenting was beneficial for these children had been rebutted by the evidence.

The judge expressed a view that responsibilities for making long-term decisions are divisible as different responsibilities can be delegated to each parent when disputes are not pervasive, so that allocating all decision-making to one parent by granting sole parental responsibility is not the only option available to a court (decision delegated).

The judge favoured an arrangement where channels of communication between children and parents were kept open.

The judge ordered:

• the mother have sole parenting authority but that she should advise the father in writing of planned decisions, seeking a written response from the father, and advise the father of her ultimate decision.
• contact between the father and the older child be as agreed between those parties
• the children participate in counselling from a psychologist or counsellor nominated by the ICL at the joint expense of both parents, and that both parents participate in counselling as and when directed by the counsellor (therapy for child).