What is the effect of abusive conduct by a parent on living arrangements for children?
Is your partner engaging in intimidating or abusive conduct towards you? Are they denigrating you in front of your children or undermining your children’s relationship with you? Or are they trying to coerce your children into expressing certain views about who they want to live with following your separation.
Abusive conduct by a parent is treated very seriously in parenting cases before the family courts.
The law generally
The court is required to follow a legislative pathway in any parenting matter. Section 60CC of the Family Law Act 1975 (Cth) requires the court, in determining the best interests of the children, to consider matters set out in sections 60CC(2) and subsection (3) of the Family Law Act 1975(Cth).
The primary considerations in determining a child’s best interests are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm, with that latter factor carrying most weight.
In the recent Federal Circuit Court case of Witmore & Clements  FCCA 481, the need to protect the child from physical or psychological harm and abusive conduct by a parent was particularly significant. In that case the parties had 4 children namely “W” aged 16, “X” aged 14, “Y” aged 12 and “Z” aged 7.
Initially following separation the parties had a week about arrangement with the children. Five months after separation, the mother instigated domestic violence proceedings and mutual protection orders were made by consent. Shortly after that time, the father withheld the children. The mother commenced proceedings seeking parenting orders in the Federal Circuit Court of Australia.
The Court made interim orders that the children live on a week about basis with each parent. An order was also made for a Family Report to be prepared.
The parties were subsequently embroiled in protracted court proceedings for the following 2 years.
During that period of time the husband engaged in a range of behaviour that may be considered abusive conduct by a parent including:
- Continually breaching court orders by withholding the children
- “Coaching” the children and attempting to influence what they said to the Family Report Writer.
- Verbally abusing the mother
- Deliberately exposing the children to the litigation.
- Denigrating the mother in front of the children.
- Showing contempt for the court and the legal system
Court’s consideration and findings
The Court relied heavily upon evidence given by the Family Report writer and Dr R, the single expert psychiatrist upon whom the parties were ordered to attend for the purpose of psychiatric assessment.
The Court found that:
- The mother was “child-focused” and “well in tune with the emotional needs of the children”.
- The mother had provided a stable home life for the children, in stark contrast with the father who was regularly moving and making changes to his life.
- The mother had met all the financial, emotional and social needs of her children.
- The mother had been “abused and insulted directly and indirectly by the father for years”
- Despite the threatening and menacing behaviour of the father, the mother had exhibited sensible and responsible parenting since separation.
- The father was preoccupied with legal matters and he held the Court, the legal system and the mother in contempt.
- The father regularly discussed with the children the litigation and made extremely derogatory comments to the children about the mother.
- The father chose not to see the children for a period of 9 months in 2016 despite being within driving distance of them.
- The father’s living arrangements were unstable. During the course of the proceedings he had moved from North Qld to South East Queensland and then back again without any satisfactory explanation.
- The father had used telephone contact as an opportunity to abuse and insult the mother and also to discuss inappropriate topics with the children.
- That the father was determined to undermine the mother and damage her relationship with the children and that he represented an “unacceptable risk” to them.
- That the father showed very little interest in the best interests of the children.
- The father had repeatedly breached court orders and showed a lack of insight into his own behaviour.
The Court accepted the opinion of the psychiatrist that the husband was potentially unstable and had features of a narcissistic personality disorder.
In terms of the presumption of equal shared parental responsibility, the Court was satisfied that the presumption did not apply given that the father had committed acts of domestic violence.
The Court made a range of orders taking into account abusive conduct by a parent including that:
- The mother have sole responsibility for decisions in relation to the long term care, welfare and development of the children.
- That the children live with the mother and spend time with father as follows:
- The first Sunday of every month between 9.30am and 4.00pm;
- The handovers occur at a Relationships Australia Contact Centre nominated by the mother;
- The father’s time with the children be suspended during school holidays; and
- That the father be restrained from removing the children from the Contact Centre during his time with them or at any time.
- That there be no telephone time with the father unless and until the mother was able to secure the use of a telephone supervision service.
- In the event that the mother was able to secure the use of a telephone supervision service the father was to have supervised telephone contact with the children for 20 minutes:
- Once per fortnight
- On each of the children’s birthdays
- On Father’s Day, the Father’s Birthday, Christmas and Easter Sunday.
- That the father be restrained from:
- Removing the children from the care of the mother;
- Withholding the children from the mother contrary to the terms of these orders;
- Denigrating the mother directly or in the presence or hearing of the children; and
- Discussing any litigation with the children.
- That the parents utilise the Talking Parents website in relation to all communication regarding the children except as provided for in these orders.
- That the Independent Children’s Lawyer explain the outcome of this litigation to the children in company with the Family Report Writer.
At LGM Family Law, we are experienced in dealing with complex parenting issues, including cases involving abusive conduct by a parent. We aim to resolve our clients’ matters amicably with the former partner. Where it is necessary however, we will recommend legal proceedings and represent you through to obtaining final orders. At the same time, we still be taking the necessary steps for a settlement of your matter to be reached with your former partner.