It is important that after separation, children are encouraged and supported in having a meaningful relationship with both parents (this is of course subject to any unacceptable risk of harm that the children may be exposed to in a parent’s care). If parents are unable to agree on the care arrangements for a child and the matter is to proceed before a Court, a judge will not look favourably on a parent who has not encouraged or supported the child in having a meaningful relationship with the other parent. This was highlighted in the decision of Tyrrell v Morris [2019] FamCA 600 (“Tyrrell”). 

In Tyrrell, the parents had consented to final orders in February 2017 whereby the father had sole parental responsibility for the (then) 10 year old daughter, and she was to live primarily with him (click here to see our article explaining the differences between “parental responsibility” and “time” arrangements). The child was to spend time and communicate with the mother five nights per fortnight, for half of the school holidays, and on other special occasions. 

In or about 2018, the mother sought to have the arrangements changed so that she would have sole parental responsibility and the child live with her. The father opposed the change and sought orders similar to the terms of the 2017 final orders (ie. that he continue having sole parental responsibility for the child and she continue to live primarily with him, and spend time with the mother). 

In deciding what care arrangements would be in the best interests of the child, the Court considered a number of “primary” and “additional” factors, including but not limited to:

1. The benefit to the child of having a meaningful relationship with both of her parents; 

2. The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence; and

3. Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

Of concern to the Court was the mother’s attitude towards the child’s relationship with the father. The Court found that “the mother allows and encourages complaints by the child about the father and members of his household, passively listens without testing the reality or likelihood of the story told, and then pursues the complaint”. The Court added that whether the mother’s actions were intended or not, the outcome was “corrosive undermining of the relationship between the child and the father”. The child had been experiencing symptoms including pulling out her eyelashes and wetting the bed, which the Court accepted were symptoms of the pressure of loyalty demands (between her mother and her father) that the child experienced.

While the child expressed that she wished to live with the mother and spend only a couple of hours per week with the father, the Court was not willing to put any weight on her views in circumstances where:

1. The Court did not consider that the child felt free to express her views and feelings;

2. It was concluded that the child felt pressured by her mother to make complaints about the father (and indeed did make complaints when interviewed by the Family Consultant); and

3. There was no objective evidence from third parties to support any allegations of neglect of abuse of the child in the father’s care. 

Ultimately the Court made orders largely in line with those sought by the father, including that the child live with the father. The Family Consultant concluded that if the child were to live with the mother, the effect would be that the child would “give up” her relationship with the father, as well as with the father’s partner, and the partner’s daughters, all of whom the child had grown close to and had been “a great source of fun and enjoyment for the child”. Conversely, noting that the father (and the father’s partner) had continued to encourage and support the child’s relationship with the mother, the child would continue to have worthwhile time with the mother if living with the father. 

It is important to remember that a child has a right to a meaningful relationship with both parents, and parents are expected to encourage and support that relationship. If a parent is unable to do so, they risk orders being made against them that limit their contact with the child. 

If you require advice with respect to parenting matters following separation, please contact us.