Why family dispute resolution is not always appropriate
During family law proceedings where two people cannot agree, particularly in relation to custody of children, dispute resolution is often ordered by the court.
However, in some cases, family dispute resolution is not always the way to go, especially when violence has been a feature of the relationship between family members.
In one recent case, (Colson and Olds) the behaviour from one parent was considered so appalling, it was decided his child should not have any contact with him at all.
The father had not been in contact with his child for more than two years, and initially, an Independent Children’s Lawyer (ICL) argued there should be supervised contact between the pair at a contact centre.
The man constantly interrupted the ICL during the hearing, talking loudly and saying he would not agree to those conditions.
He also continually directed verbal abuse towards the child’s mother, her solicitor, and other members of the court throughout the hearing.
The court decided: “The father’s unrelenting abuse in this hearing demonstrates that ordering the parties to attend counselling with the aim of improving communication and the parental relationship merely affords him a further opportunity to abuse the mother.”
In making its decision, the court added “this is one of those exceptional cases where this child’s best interests require that he does not resume his relationship with his father.
“(The child’s desire to re-establish a relationship with his father if his father is ‘good’ is an outcome which the Court is unable to deliver. To a considerable extent this is because the father is unwilling or unable to contain his impulsive aggression.
“Ordering that (the child) spends time with his father, whether supervised or unsupervised, exposes him to an unacceptable risk of family violence and an inappropriate role model.”
Discussions held during family counselling and dispute resolution are generally considered to be confidential, however a family counsellor may breach confidentiality if they believe there’s an imminent threat to someone’s life.
A counsellor can also breach confidentiality if it’s likely to prevent an offence of violence, or the threat of violence against someone.
Family violence is, all too often, a sad reality in our community. And the Court’s primary focus when it comes to deciding custody issues is what is in the best interest of the children involved.
Threats, accusations, and general bad behaviour from parents does not make for a conducive environment for mediation. And this case has shown that if the Court believes a child would be harmed by being in the presence of one of their parents, it will take appropriate action.
These are emotional issues for families, and here at Michael Lynch Family Lawyers, we understand this is a stressful time. Our family law experts are here to help you navigate this situation.
If you need help with separation, divorce, parenting orders, or any other family law matter, contact our office on: (07) 3221 4300 or email: [email protected]
