In the recent family law case of McCune v Theissen  FCCA 1805, the Court outlined some crucial points about the importance of good communication between separated parents and how a failure to communicate properly could mean shared parenting is not awarded.
- The parties had two children aged 10 and 13.
- The Mother sought final parenting orders and for the children live with her while spending time with the Father.
- The Father sought equal and shared parenting of the children.
- One of the children was suffering from serious psychological problems and required treatment.
- The parents were unable to agree on orders concerning the medical needs of their eldest child.
Section 65DAA(5) of the Family Law Act 1975 (Cth) sets out what is reasonably practical for the purposes of section 65DAA(1) in considering whether a child should spend equal time with each parent. The Court must have regard to the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing any arrangement.
His Honour noted that:
Both parents struck me as sensible, intelligent people. They have, however, singularly failed to be able to communicate effectively with each other. This situation has persisted notwithstanding the very serious health concerns that [the child] faces. The lack of communication perhaps takes on a greater degree of significance when one considers that the Father does not have the same level of insight as the Mother.
His Honour did not believe that the parents were able to communicate with each other for the purposes of making joint decisions about the needs of their children. The hostile relationship between the parties acted as an obstacle to their ability to parent.
Blake J summarised in the conclusion of his judgment that:
both parents lack[ed] the ability to communicate with each other for the benefit of their children. I regard the complete absence of effective communication as the principal reason not to make an order for equal time.
In making orders pertaining to parenting, a Judge must order what they consider to be within the best interests of the children. There are numerous considerations for a Judge when making a decision, but the psychological health of the children is undoubtably a major factor to be reflected upon. As outlined in this recent case, exposing a child to high levels of parental conflict can result in serious psychological harm to a child. Blake J identified that the tumultuous relationship between the parents had impacted the mental wellbeing of their children, who had witnessed their parents fighting.
A Judge is very unlikely to order an equal time arrangement or a ‘close to equal time’ arrangement in circumstances where there is a high level of conflict. Equal time arrangements only work when the co-parenting relationship is robust, flexible, incorporates high levels of communication, and where each parent trusts and respects the other.
Where the parent with primary care is the antagonist, the damage caused to the child as a result of their behaviour may be significant enough for a Judge to order that the child live primarily with the other parent, especially if the antagonistic parent is unable to facilitate the child’s relationship with their other parent, or is actively seeking to alienate a child.
Where the parent with non-primary care is the antagonist, a Judge may seek to limit the time that a child spends with that parent in order to limit their exposure to, and involvement in the conflict. In this case, it was the children’s father.