High Conflict Parental Relationship

How does a high conflict parental relationship effect the Orders that a family court may be willing to make
for the care of children?

The paramount consideration under the Family Law Act 1975 (Cth) (“FLA”) when the family courts are
deciding whether to make a particular parenting order in relation to a child is
the best interests of the child (Section 60CA FLA).

Section 60CC(2)FLA sets out what are the primary considerations
for the family courts in determining what is in a child’s best interests. These
primary considerations apply regardless of whether there is a high conflict
parental relationship but where there is high conflict between parents, it is
worthwhile for parents to give some serious though to these considerations.
They 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
from being subjected to, or exposed to, abuse, neglect or family violence.

Most people would consider both these considerations
crucial for a child’s development.  In applying them, the court is to give
greater weight to the consideration set out in (b) above.

Unfortunately, in cases of high conflict between
parents, a parent may be behaving in a way such that the child may become hostile
towards the other parent. For example, a parent may be argumentative or
aggressive towards a parent in front of the child or speak in a negative manner
to the child about that other parent.

In an extreme case, it may be necessary that the court
makes a determination that the child lives with one parent and spends only very
limited time (or even no time) with the other parent. This is sometimes one of
the only options that may appear to be available in endeavouring to reduce the child’s
exposure to the high conflict parental relationship.

If you have concerns obtaining parenting orders where there is high
conflict between parents, contact
our experienced Brisbane child custody lawyers or our North Brisbane child
custody lawyers.
 We
can assist you in all areas of family law, including regards parenting
arrangements and family law property settlement. Our family law solicitors will
advise you regards likely outcomes for your particular circumstances and assist
you to resolve your family law issues. You are also welcome to read on for
further information right now………

In Messana
& Messana [2018] FCCA 3284 (2 November 2018)
, the Federal
Circuit Court of Australia made interim parenting orders providing the child
lived with the Mother and spent time with the Father that increased over time,
including overnight time.  It was a case
involving a very high conflict parental relationship. The Judge observed that
the parents were both highly intelligent and articulate but that their emotion
obscured their ability to see things clearly. It was observed that “their trust
for each other is non-existent. Their communication is almost impossible at a
constructive level”.  The Judge agreed
with the intimations of the family report writer that the parents were so self
absorbed with the conflict between them that they were unable to prioritise
their child’s needs even though they clearly loved the child. The Judge
considered that they had lost capacity to even focus on what was important for
their son.

When considering item (b) above regards risk to the
child, the Judge approved the comment of the family report writer that the greatest
risk for the child was not the family violence that had previously occurred but
effectively the high conflict between the parents.

It is worthwhile for parents who are in conflict to
consider the following words of the Judge in the Messana case:

“I
need to consider the issue of parental capacity. That is, of their capacity to
provide [X]’s emotional and intellectual needs, as well as his physical needs.
[X] is very lucky at one level; he has two intelligent, loving, professional
parents who should be able to meet his intellectual needs, his physical needs,
and who, at one level, should be able to provide him with every opportunity in
his life. But the need that Ms E focused on as being the most at risk is are
emotional needs. Ms E presented a rather bleak picture of the potential risks
to [X] as he grows older of his parents not being able to meet his emotional
needs.

She
described how he might be torn, how he might have divided loyalties between two
parents that he loves and who love him, but who probably, and I use this word
reservedly, hate each other. The capacity of the parents to meet the emotional
needs of their son is a real concern I have in this case. It is a matter
however where all the Court can do is to comment, encourage, perhaps make
orders (as it has) about the parents doing education, but ultimately this is a
matter for them. The risk to their son has been clearly indicated by an expert
of unparalleled experience in the Family Law Courts. It is a matter for the
parents now what they do”.

Contact our child custody lawyers Brisbane or child custody
lawyers Brisbane Northside
 for
advice concerning how to obtain the best available outcome for your
circumstances- especially where there is a high conflict parental relationship involved.
We prioritise assisting our clients to reach an amicable agreement with their
former partner, whether concerning child custody arrangements or family law
property settlement. If however court action becomes necessary, we have the
experience to represent you at Court.

The information set out in this blog is not a substitute for
legal advice. We recommend that you obtain advice tailored to your
particular circumstances from our Brisbane child custody lawyers or our
child custody lawyers Brisbane Northside.