High conflict parenting matters

High conflict parenting cases are amongst the most complex and costly (both emotionally and financially) for parties to run.

The recent case of Silver & Pilot [2020] FamCa 691 (3 August 2020) provides an interesting insight into the approach the court may take when assessing the consensual resolution of a high conflict parenting matter to avoid judicial scrutiny and accountability.

This matter came before the court for a 10-day final hearing concerning the parenting arrangements for 2 three-year-old boys.

The parties had attended upon a Family Consultant who prepared a family report dated 8 May 2020. In the family report the consultant described the mother “as being unable to envisage or tolerate overnight extended time between the children and the father”.  The mother’s material prior to the filing of her Outline of Case sought to restrict the father’s time with the children, and made extensive allegations of severe family violence, abuse, and coercive and controlling behaviour.

The mother’s position at trial was that she no longer considered the father to represent an unacceptable risk to the children and adopted the final recommendations of the Family Consultant.

Her Honour ultimately made Interim Orders on the terms of the final orders proposed by the mother in her Outline of Case, and adjourned the matter for a period of 2 months to enable the parties to obtain an updated family report following the father’s increase in time with the children.

What is of particular interest in this case are the comments made by Her Honour in relation to high conflict parenting matters more generally, and the role of the court in ensuring that the acrimony between parties is brought to an end for the benefit of the children.

Her Honour, Justice Bennett, commented that:

• In considering the bests interests of the children, Her Honour noted that the court must have regard to the “basis upon which the mother has capitulated and now seeks final orders completely at odds with her case up until last Friday.”  [paragraph 8]

• “In my experience, it is not unusual for high conflict cases, such as this case, to not proceed to a final hearing. Parties to high parental conflict disputes frequently settle their litigation just before the hearing so as to avoid judicial scrutiny of their position. In a case management sense, the litigation is brought to an end but, in reality, it is just paused because nothing within the conflictual parental relationship has been addressed. Even worse, the parties are no longer under the scrutiny of the Court. It goes without saying that in such cases at least one of the parents is more interested in realising their goal, preserving their fire power than acting in a manner consistent with the children’s best interests, although that party’s case will be dressed up as a best interests case. This current case has all the hallmarks of those unfortunate high parental conflict cases which I have described.”  [paragraph 10]

• Our case management guidelines are focused on bringing cases to conclusion as soon as possible because usually it is in the interest of litigants and children to do so. However, with high conflict cases such as this case, a quick resolution is frequently illusory and does little to address the underlying toxicity in the parents’ relationship or provide relief for the children. I am satisfied that the best interests of the children require that the proceeding should be handled in a more unconventional way. The mother’s change of heart should be the subject of a further assessment by Ms B and the children should spend more time with the father, both as to frequency and duration.”  [paragraph 12]

Why does this matter for me?

It is not uncommon for matters to settle at the door of trial. But the case of Silver & Pilot provides a valuable lesson for not only parties, but also practitioners as to the importance of reality testing clients prior to the final hearing. The nature of family law litigations means parties’ evidence is generally not tested until final hearing, normally some 18 months after proceedings commence.

Silver & Pilot also provides a reminder of the way the court may perceive one parties capitulation when faced with the possibility of judicial scrutiny, following years of litigation.

Whilst there will always be matters that proceed to a final hearing, given the nature of the jurisdiction, sensible and pragmatic advice often goes a long way in providing some relief to strained parenting relationships following a separation.

If you are engaged in parenting proceedings, or have recently separated, and want to ensure that you have an understanding of how to best avoid exposing your family to unnecessary conflict, please contact Sage Family Lawyers on 03 9070 9839 or info@sagefamilylawyers.com.au