As an Independent Children’s lawyer, I have recently had some extremely difficult cases where I have been significantly challenged in my attempts to support the children’s rights to have an ongoing and meaningful relationship with both of their parents. These cases have reinforced for me that every situation is unique, each must be approached on a case by case basis, and assumptions can be extremely dangerous. Significant change would appear to be dependent on appropriate expert intervention to gain understanding, a commitment and willingness from both parents, and the support of the court system or social science interventions.
This was a case of the mother resisting any time between the father and her 5 year old son on the basis of the history of family violence. No time had taken place for about 3 years.
The Mother believed that the Father’s aim was to cause harm to herself and the child, and that they were at risk of family violence should the Father be able to spend any time with the child. The Mother claimed that the child had been the victim of extreme family violence, was terrified of him, and did not want to have anything to do with him. She also argued that the thought of the Father spending any time with the child would be so devastating for her that this would seriously impact on her parenting capacity and therefore not be in the best interest of the child.
There was no doubt that there had been a history of family violence, which was documented in previous proceedings in the Children’s Court and the file of DHHS. The material was not clear as to the nature of this violence.
The mother claimed there was controlling and abusive behavior from the father, but she had not consistently acted protectively of herself and the child.
The father’s description was more complicated and indicated from his perspective the violence may have been situational and even mutual on occasion. He acknowledged not having coped with the situation, and had since attended regularly for an extended period on his own treating health professionals, had completed a Men’s Behavioural Change Course, and a Post Separation Parenting Programme, A Risk Assessment Report had been prepared and assessed him as low risk to the child.
There were many factual disputes, with investigations by police and others that were many years ago and not conclusive or consistent in their outcomes.
In the course of the Federal Circuit Court proceedings, various experts had provided reports recommending supervised time, including a very well known psychiatrist, and psychologists . The Mother provided contrary evidence from her treating health professionals supporting her arguments that it would not be in the best interests for the child to spend any time with the father.
The issue here was whether the child could benefit from a relationship with his father, and how to assess the level of risk to the child either from the time that he spent with his father, or indirectly as a result of the impact that this would have on the Mother.
The judge in this matter accepted recommendations from the ICL for the parents to participate in a POP programme for an introduction between father and son, and to trial supervised time at a Contact Centre, with the preparation of a Family Report.
It should be noted that the Family Report revealed the child was a resilient child who had no memory of his father, and did not reflect the negative image that the mother had of him.
The Mother adamantly resisted this proposal claiming that it triggered her PTSD .and sought to set the orders aside. The judge would not vary his orders and indicated that he expected his orders to be implemented, and that if enforcement became necessary then there would be significant consequences.
The result of this tough message was that the supervised time did progress and without incident. Updated expert evidence was obtained, and arrangements made for resolution by agreement at Family Dispute Resolution.
A brave judge in this case, took the time to understand the complicated history, and was prepared to ensure that his orders were complied with. He provided a clear message to the parties so that they understood the nature of the consequences that would flow from non-compliance. The result was that there was no room for the parties to carve their own path out for this child that was not consistent with the expert evidence and recommendations of the ICL.
The mediation has not been completed yet, but I have every confidence that the dynamics of this matter have changed for the benefit of this child, and it is highly likely that he will be able to grow up with a meaningful relationship with both of his parents.
Another case I was involved with recently involved children aged 12, and 14. They lived with their mother, and there were orders that provided for the children to spend regular time with their father on alternate weekends and school holidays.
The father issued an application for contravention as the children had not been spending time with him. His view was that this was because the mother did not facilitate the time, and was the cause of the lack of compliance with the orders. He claimed that the children were being alienated against him by their Mother. There was an older child aged 18 who was not the subject of the court proceedings, but who also did not have a positive relationship with the father, and who he said was influential on their siblings.
The mother denied that she was contravening the orders. She stated that she encouraged the children to spend time with their father, made them available in accordance with the orders, and understood the value to them of having a relationship with him. She said they were adamant that they would not go and she could not force them to do so. She said it was not her fault that the children did not want to see the father, but a result of his own failure to convince the children that he was interested in them and their activities and wanted to support them in their day to day lives.
Both parents were not legally represented.
The children were interviewed and made it clear that they believed their father had prioritized his new partner and family over them, and that he did not really care for them or want to spend time with them. They said they were busy with their activities and did not want to see him.
Mediation took place to provide an opportunity for the parents to try to look creatively at the situation, resolve the matter and avoid a court hearing.
At mediation, the father presented his view that the children were not being facilitated or supported to have a relationship with him. He stressed that as their father they had a right to a meaningful relationship with him, and that it was important for their long term emotional and social development, and their wellbeing, that they have an opportunity for this. He had undertaken research and discovered that adults who had been prevented from having a relationship with one of their parents when they were children, reported a greater level of mental health issues, difficulties forming relationships, and in hindsight resented the lack of support from that parent. He pointed to the principles underlying the Family Law Act of the children’s right to a meaningful relationship with both of their parents and other important people in their life, and their right to be supported by both parents in all important parts of their life.
The mother acknowledged the need for the children to spend time with and have a relationship with their father. She stressed that she would support the children in doing so, but that he had to make the effort and demonstrate to them that he was invested in doing so, reliable and consistent. She stated that the children felt rejected and abandoned by him when he left, commenced a new relationship and even married without informing them or inviting them to his wedding. She advised that he had to convince them that they were a priority for him, and that he would have to be the one to make the connection with them, and reach out to them.
Agreements were reached:
- The father was to attend the children’s activities and invite them to spend some time with him following the activity
- The father was to regularly and reliably telephone the children or contact them on social media and seek to make this connection with them. He was to be mindful that on some occasions the children may not be willing to engage with them, and he would need to be patient and tolerant
- Communication coaching was to be explored to assist the parents with their ability to discuss relevant issues regarding the children
- Counseling or psychological support for the children was to be arranged, and the wellbeing centre at the school contacted to provide appropriate supports for the children
- Parent/adolescent mediation was to be arranged between the father and children for a dialogue to be commenced in a structured setting regarding outstanding issues and future arrangements
- A monthly family dinner was suggested with both the mother, father and the children to provide a demonstration of the support of both parents for the children spending time with their father
The parents had difficulty implementing this agreement. The family resided in regional Victoria and it was not so easy to find the resources for counseling and other services that were affordable and timely to fit in with the children’s and parents other commitments.
The father claimed that the mother did not sufficiently and strongly influence the children to take steps to implement the agreement. From the outset the older child refused to attend the family dinners, and the younger child followed their example.
The mother claimed that the father needed to be reliable and consistent in his efforts to ring the children and watch their sporting activities, to develop trust on the part of the children that he was genuine in wanting a relationship with them, and would do whatever it took for this to happen.
Both parents expected others to make the arrangements for the counseling, coaching and mediation, and felt frustrated when this took longer than expected.
As the final hearing approached, both parents obtained legal representation and legal advice. Ultimately the father withdrew his application for contravention and the matter did not proceed through the court system.
I suspect that the father was advised of the difficulty of obtaining orders against the wishes of children of this age, and the limitations of the court process in these situations. The age of the children, the length of time since they had spent meaningful time with him, the difficulty of finding timely and affordable support services in their area, were all significant factors. The parents were provided with a venue to commence a dialogue about their children, an understanding of the importance of them both being committed to do this together, and strategies to assist the family to address these issues. My involvement as ICL ceased when the court proceedings were withdrawn, but some steps had been recommended that gave hope for improvement of the children’s relationship with their father in the future.
In this matter there were two children aged 14 and 16 who had lived with their mother for most of their lives. There was also an older and a younger sibling. Final parenting orders in 2014 provided for equal shared parental responsibility, the children to live with their mother, and that they spent alternate weekends with their father and time midweek. Some time ago these two children failed to return to their mother’s home after spending a weekend with their father and they had not wanted to spend time with her since.
The mother issued an application for contravention. She claimed that she had effectively been cut out of making important decisions regarding the children, had been prevented from access to important information about the children, and that the father had alienated the children from her and prevented them from being able to spend time with her.
I met with the children, who were both very clear that they did not want to spend time with their mother. When asked to explain why they felt this way, they gave as reasons:
- She would yell and scream at them, throw things and call them names
- She would use them “as a slave”
- She would be fine but unexpectedly would escalate to make a scene and become abusive
- She did not listen to them and take what they said seriously
- She would not accept that the current circumstances reflected their decision and not one being imposed upon them.
I spoke to the father about the fact that the children were adamant that they did not want to see their mother and that these were the reasons why. I asked for his assistance in understanding this. He informed me that both children were very angry with their mother. The older child had runaway from her mother’s house in the past, had not been back and had maintained her rage about her mother. In 2015 the Mother had accused her of being abusive towards a younger sibling. The younger child had been mowing the lawn for his mother in 2017 and some altercation resulted in her calling the police on the basis that he was intimidating towards her. He had been very angry about this ever since.
Arrangements were made for a child psychologist to work with the children, and provide feedback to the parents, in the hope of negotiating an agreed arrangement for the children to spend time with their mother. This was to try to give the parents an understanding of the children’s perspective, explore the possibility of changing the current dynamic for the children, and facilitate some type of connection between mother and children.
The psychologist attempted to mediate an arrangement between the children and their mother that might be acceptable to both. After several weeks, the therapist advised all participants that she was withdrawing her role, due to “the difficulties in trying to work with everyone in an amicable manner without breaking the established boundaries-this is proven to be difficult“. It appears that expectations from this process exceeded the role that the therapist was prepared to take in these circumstances.
As a result of discussions with the parties I agreed to attempt to negotiate a regular plan for contact between the children and their mother. I also agreed to explore another therapist to provide support for the children.
Despite some initial indications that this may work, my attempts were not successful. The older child refused to spend any time with the mother or have any communication with her. She reported profound anxiety in relation to her mother and described debilitating physical symptoms in relation to thoughts about or engagement with her mother. The younger child agreed to text the mother on the basis that she provided him with a phone, and met him after school so they she could purchase items of uniform and other items he wanted.
An alternate therapist was suggested but resisted by both parents.
The matter was listed in the FCC for mention. The judge was clear that Contravention was not the appropriate pathway, that the mother’s intention was to have some time with the children, and that the father needed to support this. He ordered a s11F Report to try to “get to the bottom of what was happening”.
A s11F Report was conducted by an experienced Child Consultant at the court. This report noted:
- was unable to accept any responsibility for the current position of the children or see how she might modify her behavior to benefit the situation
- tended to interpret issues negatively and identified herself as a victim
- did not demonstrate any capacity for flexible thinking, in that she could not conceive of any option but the one she preferred, she was dismissive of other’s views and could not be objective
- displayed behavior that was hostile and emotionally manipulative
- blamed the Father for the current situation based on her view of his abuse towards her, and could not appreciate the inconsistency of this position with that of the father and the children
- was derogatory of the father to the Child Consultant and according to reports also in the presence of the father and the children
- cannot understand the children’s experience of her behaviour
- appeared open, able to acknowledge some of his contributions to the difficulties between the parents, was able to hear commentary about parenting matters and to consider alternate options
- to varying degrees had been exposed to traumatic experiences that as a result had left them emotionally damaged
- reported name calling and abuse from their mother
- said that their mother was punitive in ways that did not reflect their age and stage and development
- claimed they were emotionally worn out by the denigration of their father by the mother
- described their Mother as discussing the court proceedings with them
- said they would be prepared to spend short amounts of time with their mother in the future, but this would be when they were ready and at their choosing
The Child Consultant stated that the Mother demonstrated a lack of understanding about “how to prioritize and address the children’s needs”. On this basis she recommended that the children spend time with their mother in accordance with their wishes, and that the arrangements are to be communicated by the Mother to the Father. Various restraints were recommended preventing the children from being exposed to any form of abuse, negative comments, or adult issues. Both children were to receive trauma counselling and the Mother was recommended to complete an age appropriate Parenting Programme.
The crucial factor noted by the Child Consultant was that the parents needed to communicate directly regarding any suggested arrangements rather than through the children. The Mother was not prepared to do this, as she regarded any interaction with the father as abusive and disrespectful. She wanted to establish a channel of communication directly with the children, but could not accept that the father needed to be aware of what was being suggested to be supportive of this, and avoid the children saying one thing to him and giving her a different impression.
The journey for these children continues. It is to be hoped that a clear direction from the court based on the s11F Report will give them some peace from the ongoing fight between their parents. The court system will not provide the Mother with the outcome she is seeking. The attempts at family therapy demonstrate that there is not the willingness and commitment for this to have the needed impact for change required for a new family dynamic. The clear and unequivocal comments and recommendations of the s11F Report leave the onus on these parents to stand back, take steps for individual growth to provide the opportunity for new chapter in their family’s story.
None of these cases involve “alienation” although one of the parents in each case could have used this concept to describe how they felt about their relationship with their child or children.
In the first matter, the Mother had totally failed to encourage a relationship between the child and his father. This was based on her totally negative view of their relationship and reflection of her need to protect herself. In her own mind she was acting protectively of herself and the child by doing everything she could to keep the Father out of their lives. When she accepted that this was not going to be possible, her perspective changed entirely and she was able to adapt her thinking to work with this in a way that also kept a clear boundary between herself and the Father and thereby provided herself with maximum protection in the circumstances.
In the second case, the Father was adamant that the reason he had no relationship with the children was because the Mother had alienated them from him. The Mother acknowledged the importance of a relationship between the children and their father, and indicated that she was prepared to support this. However, she pointed to the need for the father to earn the children’s trust and confidence in that he prioritized his relationship with them, and would reliably and consistently be a presence in their lives. This was not going to be easy and would require considerable effort and time. The support of counseling and improved communication between the parents would give a scaffolding for the parent/adolescent mediation to work on the communication between father and children. In this case, it appears to me that the children were estranged from the father, but there was still the desire of the children to have a good relationship with him.
In the last case, the mother again was adamant that the children had been alienated from her by the father. The children indicated that their position had not been influenced by their father but was a direct result of their experience of their mother’s behavior. They needed to process and recover from this before they felt able to have a connection with her. At their age, they wanted to be able to initiate this arrangement, and wanted their mother to respect this, and stand back and wait for their approach. The success of any relationship would appear to depend on the Mother’s ability to gain an understanding of her children’s experience, and to be able to be patient and respect their wishes. This is something that would not be indicated based on past behavior, but the Mother will have little choice as she has exhausted all other avenues.