Dependent upon the evidence that is available, in a situation such as that, it may be possible to obtain orders that the children only spend time with your former partner on a supervised basis. In extreme cases, again dependent upon the strength of the evidence, orders may be made that the children live with you and do not spend any time with your former partner.
In our previous blog, we looked at the decision in Shan & Prasad  FamCAFC 12 (1 February 2018), where the Full Court of the Family Court of Australia upheld on appeal the decision of the primary judge that children live with the mother and spend no time with their father.
In that case, the single expert witness who had interviewed both parents took the view that the father had “significant personality dysfunction, with prominent anti-social and narcissistic personality traits”. Whilst he did not diagnose the husband as having a personality disorder, the possibility was not ruled out.
In that case, the orders of the primary judge:
- provided for the mother to have sole parental responsibility for the children;
- provided for the children to live with the mother and to have no time or communication with the father except for the exchange of two letters each year;
- gave the mother liberty to relocate with the children within Australia, or overseas, without having to consult the father.
Sole parental responsibility
The primary judge had made an order for sole parental responsibility in favour of the mother.
The primary judge had made that decision after he had decided that the husband would have no face to face or telephone contact with the children and only very limited communication by the exchange of letters. In these circumstances, an order for equal shared parental responsibility “was not reasonably practicable”.
The Full Court said that, in any event, as a consequence of the findings of family violence, the presumption of equal shared parental responsibility did not apply.
The effect of orders of the primary judge denying the children a relationship with their father
The father contended that the primary judge had erred by:
. Failing to consider the effect on the children of a loving relationship with the father being terminated;
- Failing to consider supervised time for the children with the father; and
- Making orders that provided for no time for the children with the father until they reached 18 years of age.
The Full Court noted that the primary judge had taken into account that at the time of trial, the children had already not spent time with the father for some considerable time. An order for no contact meant then that there was minimal change for the children.
The single expert witness had suggested that “provided the children were properly cared for by their mother, they could probably cope with the absence by their father in their childhood.”
The primary judge recognised that no contact was not ideal for the children but took in to account a cost-benefit analysis given by the single expert witness, being that where the potential emotional cost to the children of spending time with their father was so great for them, then any perceived benefit of that time occurring does not justify the potential cost. The primary judge had been satisfied that the benefits to the children of having a meaningful relationship with their father were outweighed by the risk of harm “derived from the [father]’s personality dysfunction, namely anti-social and narcissistic personality traits”.
The primary judge had also been satisfied that the husband was unable to consider the children’s emotional needs and referred to the opinion of the single expert witness that it would not be in the children’s interest to develop an attachment relationship with the father.
No supervised time
The primary judge had found that:
“the need to protect the children from the adverse consequences of their father’s personality dysfunction is greater than any benefit to them of having a meaningful relationship with him. The Court has considered, as has [the single expert witness], the benefits to the children of spending limited, but supervised time with their father, perhaps three or four times yearly. On the one hand this would be an attempt, albeit in a minimalist sense, of seeking to achieve a meaningful relationship. On the other hand, it also brings with it a range of problems, particularly for the children, but also to the [wife] of the [husband] coming in and out of their minds. It is questionable, in any event, whether such limited contact with their father achieves the statutory aim of meaningful relationship.
The harm that the children need to be protected from is, in any event, a difficult one to manage. It is a personality dysfunction, something which [the single expert witness] observed to be more difficult to treat than any other form of mental illness. The threat to the children is far more subtle, and thus, the Court believes much harder to monitor.
The [father]’s lack of meaningful (as opposed to tokenistic) acknowledgement that there is a problem in his personality simply exacerbates the risk issues for the children.
For these reasons, the Court does not believe that the risk issues are obviated by ordering occasional supervised time.”
The Full Court thus concluded that the primary judge had carefully considered available options for the children to have an ongoing relationship with the husband and that the primary judge’s findings made against supervised time and in support of there being no time were available on the evidence before the Court.
No time for the children with the father
The Full Court concluded that the evidence before the court, including a consideration of factors under section 60cc of the Family Law Act 1975 (Cth), supported a finding that the best interests of the children lie in their having no time with the father.
The Full Court said that another judge hearing the same evidence may have made an order for supervised time for the children with the father. However, on the evidence, it was open to the primary judge to make the orders that he had made other than extending the period of operation of the order until each of the children attained 18 years of age.
Order not to apply until children each turned 18 years of age
The effect of that restriction was to prevent the children from seeing their father for the entire balance of childhoods until they each reached 18 years of age. The Full Court said that given the evidence of the nature of the relationship between the children and their father, that outcome was not justified as being in the children’s best interests. The Full Court said it was highly speculative to assume that the reasons for there being no time spent with the father now would continue to be present until each of the children turned 18 years of age. The effect of the order of the primary judge in this respect meant that it purported to continue to apply in relation to the older child after should would attain 18 years of age until her younger brother also turned 18. For these reasons, the Full Court varied the order made by the primary judge by deleting the words “until they each attain the age of 18 years”.
Narcissism and narcissistic personality traits in a former partner gives cause for serious concern for your children’s wellbeing.
Contact our friendly family lawyers Brisbane (Brisbane CBD office) and family lawyers Brisbane Northside (Grange office) if you have concerns for your children’s well being in the care of your former partner or if you need any assistance to resolve your family law matter. We offer free initial 15 minute phone consultations and have the experience to assist you to resolve your family law matter. We always aim to obtain an amicable agreement between parents but have the experience to represent you in Court if court action becomes necessary.