Australia: Poor communication after separation: How does the Court respond?

The impact of hostile or unhealthy communication between divorced or separated parties on parenting arrangements

Parenting arrangements following a difficult separation can be an enigma. For many people, it's a time when they find it the most difficult to speak with, and make arrangements with, their former partner. It's also the time where steady and consistent communication is incredibly important for the benefit of any children they have together.

The Australian Family Courts encounter an array of cases where each parent in isolation presents as a loving party, highly capable of raising children and being a positive influence in their lives. However, the conflict present when those parties interact (whether initiated by one parent in particular or by both) detracts from their ability as a parent in such a way that the Court has to find ways to restrict their interaction to protect the psychological wellbeing of the children.

Common issues that the Courts are presented with in parenting matters include communication passed through use of the children, use of communication to isolate the children from the other parent, or overly hostile communication.

Communicating through the children

It is common following the commencement of shared-parenting arrangements for parents to choose not to communicate with their former spouse where possible, particularly in circumstances where they find this communication confronting or upsetting. The unfortunate consequence of this, is that often parties to parenting proceedings use their child or children to relay important updates to the other parent, or even to ask for information about personal or legal matters.

The Courts have historically had a very negative view of this approach. In the case of Jantic & Santic, heard in the Family Court in Melbourne in October 2016, the family report writer said "It became apparent early that [the father] relies on [B] for much of his information and while he could acknowledge this placed [B] in a difficult position he said "what choice do I have" indicating his need for information was prioritised."

The Judge in that case made orders consistent with the views of the report writer, stating "it is my view that the parties' parenting capacities are limited due to their inability to communicate with each other." The Judge subsequently found that it was not in the child's best interests for the parents to have shared responsibility and awarded parental responsibility and primary care to the mother, with the father having block time with the child every alternate weekend.

Attempting to isolate the child/children from the other parent

In addition to using the child or children to communicate, separating couples can be too forthright with children about the nature of the dispute and their feelings towards their ex-partner, or can project their anxieties concerning their former spouse onto a child. An example of this is the 2017 Family Court decision of Groth & Banks.

In that matter, the children had seen and heard their mother's reactions to their interactions with their father, and it made the children feel anxious when in their father's care. Judge Thorton stated "I find on the totality of the evidence that the mother is responsible for maintaining a negative attitude towards the father over the last three years, notwithstanding that she accepts and acknowledges that it is in the best interests of the child for her to encourage that relationship." The family report writer noted that the child "is not spared the feelings of the mother towards the father and the child's behaviour reflects that."

The above case highlights that even unintentional behaviour that makes a child feel isolated from one or both of their parents can have a hugely detrimental impact on their psychological health, leaving the Court in a position where they have to make Orders for care arrangements that place distance between the parties whilst attempting to maintain the child's relationship with both parents. This is often a difficult compromise to reach successfully, and can result in either one or both parents feeling as though their long-term relationship with their child has been compromised.

Hostile communication

Hostile communication between separating or separated parents can also be typical. It is very rare for parties to successfully communicate in an aggressive and hostile way, particularly face-to-face, without the child/children being directly or indirectly aware of these issues. This can cause the child to be concerned or distressed, and ultimately impact their general happiness and wellbeing.

In the 2016 Federal Circuit Court case of Dowling & McLeod, there was a history of aggressive and abusive verbal communication between the parties. Judge Phipps gave serious consideration to making Orders that the child spend no overnight time with one of the parties, in circumstances where neither parent was effectively managing the child's inability to cope with the ongoing conflict. Judge Phipps stated "The child's relationship with each parent is not in dispute. One thing is clear and that is that the parents have no ability to communicate [...] they do not have a cooperative relationship and the prospect of them developing one is poor."

Failure of parents to shield children from post-separation conflict can cause such significant harm that it can't be ignored by the Court. Whilst in the above case overnight time was able to continue, in some circumstances the hostility between the parties impacts the child in such a significant way that Court is unwilling to rely on the parties to facilitate a relationship with the other parent at all.

In conclusion

The Court encourages parents to adopt various strategies if they have difficulties communicating to put children at ease. These can include having changeovers in public locations that are enjoyed by children (such as a park or restaurant chain), use of more formal written proposals to make suggestions about the children's future to remove elements of conflict from the correspondence, facilitating contact through friends and relatives that are trusted by both parties, and restricting communication to written forms. These methods, and many others, have the primary benefit of shielding children from the tension and hostility surrounding separation.

In circumstances where one parent has used their best efforts to protect the children from being negatively impacted by the hostile communication and the other parent shows no willingness to communicate appropriately, the Court may give serious consideration to making Orders for the children to live with the parent who can facilitate the meaningful relationship between the children and the other parent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kirstie Barfoot
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