Children’s emotional needs not met by change of residence
Gates & Shellard
Conclusion
- The court is faced in this case with two unpalatable options.
- One is to make the orders sought by the mother, which will put an end for the immediate future at least to any chance of a meaningful relationship existing not only between the father and X but between the father and Y.
- The other is to make the orders sought by the father, which will result in a dramatic and distressing change of residence for the children with a risk of family violence occurring between the father and X.
- The Independent Children’s Lawyer said that there was a third option, making interim orders and requiring the family to attend therapy but this family have been in the court system for over two years and things have not improved over time rather they have become progressively worse. The positions of the mother, father and X are now so polarised that it is impossible to see family therapy imposed by court order leading to a solution.
- Neither Mr D nor Ms B were able to come up with a definitive recommendation in this matter because they were unable to determine the root cause of the problem or determine whether the fault for the current situation lay primarily with one parent or the other.
- I cannot be certain about the root cause of the problem but one possibility which strikes me as likely is that Mr R’s observation that due to the father’s absences during the relationship the mother “seems to have become a single parent in her thinking and behaviour toward the children” is correct and that due to their personalities the parents were never able to move on from that and establish a co-operative post-separation parenting alliance involving mutual respect and co-operation. To make matters worse, again probably due to the parties’ personalities, conflict and denigration perpetrated by both parties and their families emerged as the order of the day after the broken arm incident.
- The children are caught in and heavily enmeshed in the conflict between their parents. X refuses to see the father and although Y continues to see him at the contact centre the notes indicate that she makes negative comments to him from time to time and resists being hugged and kissed. It is quite possible that if frequent supervised visits continue Y’s relationship with the father will deteriorate rather than improve. The father is quite right to say that continued supervision is conveying to Y that the father is someone to be feared and she already accepts X’s account of his father hurting him.
- The solution the father sees to the problem is for me to order a change of residence but I do not accept that this would be in the children’s best interests.
- If the father was an empathic insightful person who could be trusted to deal sensitively and appropriately with the children’s distress and if it was clear that the mother was the sole or main source of the problem and the father was better able to ensure that the children had a good relationship with both of their parents this might be worth considering but none of these things are so.
- Although the mother may be part of the problem, I do not accept that she is the sole or main cause of it and the father is not an insightful and empathic person and does not have the capacity to assist the children to cope with a change of residence. He is also not capable of promoting a good relationship between the children and the mother. He is in denial about the way he talks about the mother to the children and his need to convince the children that the mother and not him is a liar is so strong that he is likely to ride roughshod over the children’s emotional needs if a change of residence is ordered.
- There is no alternative but to order that the children remain living with the mother and that she has sole parental responsibility for them. I suspect that a point has been reached where the mother is unlikely to encourage a relationship between the children and the father if they express any reluctance to see him but I do not see her standing in the way of it if they express a wish to resume the relationship. The mother will provide the children with good day to day care and she is more capable of providing for the children’s emotional needs than the father albeit not perfect in this regard. It is the least damaging option for the children.
- The issue then is what order should be made about the children spending time with the father.
- Ms B recommended that if the court was unable to determine what had happened:
it may be beneficial for the children to live with the mother and spend supervised time with the father for a period of up to 3 months. That if this time is found to be without significant events that his time be changed to unsupervised and include overnights with X immediately and with Y after she commences school in 2017.[16] - I cannot determine for certain what has happened but I cannot simply adopt Ms B’s proposal that time swiftly become unsupervised. I must consider the matter based on the evidence before me which includes evidence about the July 2015 recording which was unknown to Ms B, the evidence in the parties trial affidavits, information which emerged during cross-examination and information about events which have occurred since Ms B prepared her report including X ceasing to spend time with the father in May 2016.
- I accept that long term supervised time is undesirable but I cannot make an order for unsupervised time. There is an unacceptable risk that there would be physical violence between the father and X if X attended and if he refused to attend then I would either be driving a wedge between the children if Y continued to be willing to attend or putting at risk Y’s time with the father because it is possible given the comments she makes from time to time at the contact centre that Y would in due course decide to throw in her lot with the mother and X and refuse to attend as well.
- The mother proposed an order that the children spend time with the father four times a year at a contact centre.
- How successful this will be is open to question. X may not attend and in the face of this Y may become reluctant. I may be faced with dealing with a contravention application in due course and time of this nature will not enhance the children’s relationship with the father even if it occurs.
- It is however an order worth making because the father does have things to offer the children and it is preferable to preserve a link between the father and the children in case things turn around once the pressure is off everyone. The father does not have a criminal record absent the DUI conviction, he is productively employed, he has a large extended family and it would be highly regrettable if he had no future relationship with the children.
- If this order is made and the parties and children are given a breathing space but the children are also given the opportunity to see the father and the father is able to reflect on the damage done by his intense need to demonstrate to the children that he is right and the mother is wrong and adopt a different approach with the children then there is some possibility of a relationship being reignited in the future.
