When making a parenting order, the court must consider what is in the best interests of the child. This is often referred to as the ‘paramount consideration’. There are then additional considerations that the court must take into account, often referred to as ‘primary considerations’ [1] and ‘secondary considerations’ [2].
One of the two primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Often, parenting cases which are litigated and reported in the family courts involve high conflict between the parents and competing allegations that are relevant to this primary consideration.
The case of Nicholson & Andrews [2022][3] concerned an application by the mother to relocate the child’s residence from NSW to Tasmania.
When interviewed by the family report writer, the 6-year-old child showed concerns about his parents coming into contact with one another at the interviews “because Daddy doesn’t like Mummy”. The report writer opined that the parties’ co-parenting relationship will be limited regardless of where each live and the child “is likely to continue to be aware of the antipathy between them”. The child’s feelings were possibly unsurprising in the context of the allegations made by each of the parents.
The father alleged that the mother was physically violent towards him on 2 occasions before the child was born. He also alleged that the mother was controlling in relation to her management of the parties’ finances and her complaints that he did not perform household chores right.
The mother alleged that the father was both physically violent towards her (pushed his motorbike into her, barged past her and knocked her to the ground) and made threats to physically hurt her, including in the child’s presence. He also allegedly threatened to harm the child’s pet rabbit as a means of discipline and made constant criticisms of the mother. The mother reported that the child made comments to her including “Daddy hates you” and that the father exhibited angry behaviour (at changeover took the child out of his car and threw him into the mother’s car). The mother produced evidence from her medical practitioner of her anxiety and the fact that her levels of anxiety are heightened by coming into physical contact with the father.
The court found that the father had exposed the child to the adult conflict and it was likely that his behaviour would continue. The father did not accept any responsibility for his conduct or what impact it might have on the child. Instead, the father sought to blame the mother for his actions. The father did not offer any strategies for how he might improve his relationship with the mother, nor did he implement any of the steps or treatments that had been recommended by the family report writer.
It is no wonder that the need to protect children from physical or psychological harm is a primary consideration that a court must take into account when making a parenting order. Longitudinal studies[4] show that children who have long term exposure to high conflict have poorer outcomes in terms of their studies, self-esteem, emotional regulation and ability to form and maintain healthy intimate and familial relationships. These findings should serve as a reminder for parents, in their pursuit of parenting arrangements that best serve their children, to prioritise their own mental health and personal well-being. This might involve counselling or therapy, or even anger management training. Such interventions are designed to encourage insight, including how their own actions might affect the child or the other parent. Ideally, parents will engage in whatever help and make whatever changes are needed to allow them to become positive role models for their children, and in doing so avoid protracted and expensive court proceedings.
In this case, the court permitted the mother to relocate the child’s residence to Tasmania. The court noted that the father’s hostility towards the mother and his inability to regulate his emotions in the child’s presence was of concern and that “some of the potential impacts on the child are that the father may not be an appropriate role model and the child may grow to fear him or worse, that the child is turned against the mother” [5]. In making its orders, the court stated one of the benefits afforded by the relocation would be that the child would be less likely “to be exposed to the antipathy, hostility and anxiety between the parents on a weekly basis” [6]. It is not known whether the outcome would have been the same if instead the parents had a civil, cooperative co-parenting relationship or for that matter, whether it would have ended up in the court in the first place.
For expert and practical advice in relation to parenting or family law matters, contact Joelene Seaton or Aleena Mills of MBA Lawyers.
[1] Section 60B Family Law Act 1975
[2] Section 60CC(3) Family Law Act 1975
[3] FedCFam2F 76
[4] Exposure to inter-parental conflict across 10 years of the early childhood period: Data from the Longitudinal Study of Australian Children https://flosse.dss.gov.au/flossejspui/handle/10620/17419
[5] At paragraph 207
[6] At paragraph 185