Co-Parenting – Parents Who Sabotage Relationships Between Their Children And The Other Parent

By Elizabeth Moore, Law Graduate, MST Lawyers

Many parenting Orders contain provisions seeking to restrain parents from denigrating each other in front of their children or allowing other individuals to do so. These clauses reinforce the need for fostering healthy relationships between parents and children post family separation. While some parents find it difficult, most understand and appreciate the importance of facilitating and supporting a relationship between the child and the other parent. Unfortunately, some parents find it difficult, if not impossible, to foster positive relationships between their ex-partner and their children.

Case Study: Proctor v Proctor [2016] FCCA 613

In the case of Proctor & Proctor [2016] FCCA 613 (which was appealed and upheld) the court found that the father not only failed to facilitate this significant relationship but actively sought to sabotage it. The court found that the father could not parent because of this controlling and coercive behaviour.

The Facts

There were four children of the marriage; two were adults and the other two minors (‘X’ (then 13) and ‘Y’ (then 11)). Since separation in 2014, the children had remained in the full-time care of the father and despite court Orders, only saw their mother infrequently.

The parties to the proceedings sought Orders as follows:

• The mother sought that she have sole parental responsibility for the children, that they live with her, spend no time with the father nor have any communication with him for six months so that they could settle into their new living situation and then commence supervised visits with the father after this period;
• The Independent Children’s Lawyer (ICL) sought that the children live with the father, that the father have sole parental responsibility for them and that they spend time with the mother as they wished; and
• The father fundamentally sought the same as the ICL.

The court took the view that the Orders sought by the ICL and the father (concerning the time the children spend with the mother) ‘‘would achieve the same net effect as no Order for time or communication being made at all.’’

The court ordered that:

• X live with the father; and
• the father have sole parental responsibility for X;
• Y live with the mother;
• the mother have sole parental responsibility for Y;
• Y spend no time with the father; and
• the father be restrained from contacting or communicating with Y (including via third parties).

It may seem curious that the court decided to make almost polar opposite Orders for the two children given their similar ages and upbringing however as is the case with all parenting Orders made, the paramount consideration of the court was the best interests of each child. The two most important factors when determining this were:

• The benefit to the child of having a meaningful relationship with both of the child’s parents; and
• The need to protect the child from physical harm from being subjected to, or exposed to, abuse, neglect, or family violence.

As there had been a long history of family violence committed by both the mother and the father, Justice Harman considered the latter factor somewhat. However, it was not a significant part of his judgement.

Meaningful Relationship

The Family Law Act requires judges to make parenting Orders that ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.” Due to the father’s inability to facilitate a relationship between the children and the mother, Justice Harman found that it was not possible for the children to have a meaningful relationship with both parents. As such, he stated that there were three options:

Option 1: The children live only with the father.

Option 2: The children live only with the mother and have no contact, communication or time spent with the father.

Option 3: One child lives with the father and one child live with the mother, and that child have no contact, communication or time spent with the father.

Justice Harman considered whether there was a meaningful relationship between the children and either of the parents. Even though no relationship was being exercised between the mother and the children at that time, he found that it did not mean that there was no meaningful nature to the relationship. He stated that the Family Report showed a warmth and affection between the mother and Y and that this warmth and affection reflected the meaningful nature of the relationship.

Justice Harman wrote that he had “difficulty accepting that the children, whilst within the coercive and controlling influence of their father and elder sister, are able to express their own views formulated based upon their own lived experience and feelings.” He even stated that “this control stifled Y’s ‘feelings, relationship and, ultimately, individuality and personality.”

For the same reasons as above, it was found that X had no meaningful relationship with the father. At the same time, it was also determined that X had no significant relationship with the mother either. Justice Harman stated that ‘it was inevitable that X would, as a matter of self-protection if nothing else, retreat from, hide from and ultimately reject his relationship with his mother’ while under the coercive influence of his father. While Justice Harman was confident that there had once been a meaningful relationship with the mother, given the age of X and the extent of the coercion, it was believed that placing X in the care of the mother might result in X completely rejecting a relationship with his mother.

Inability To Parent: The Failure To Meet The Emotional Needs Of The Child

There was no question that the physical requirements of the children were being met. However, the court found that the father and Ms P (an older sibling living with the father) had been “deficient in addressing the children’s emotional needs by failing to support and encourage the children’s relationship with their mother and doing all within their power to interfere in that relationship.”

Before the final separation, the mother and father had undergone periods of separation through which the children were in the care of the mother. Justice Harman criticised the parenting of both parents however he found that as the mother had always facilitated a relationship between the children and the father, the mother had not failed to meet the emotional needs of the children.

While the facts, in this case, are unique, it demonstrates the importance the court places on the right of a child to have a meaningful relationship with their parents and the significant effects that denial of this right has on the best interests of the child.

If you require assistance with a difficult parenting dispute, please email our Family Law team or call us on +61 3 8540 0200.