WA Divorce - Rights Regarding Access to Children?

[prokaryote]

Hi,

A friend of mine has been going through a rough divorce and has recently had a VRO (restraining order) served against her ex-partner. Within an hour of being served he messaged her saying that he was going to have their 4year old daughter for the day on the weekend. I understand it is his right to see his daughter and mum had always encouraged their relationship up until now. But this is the first time he has shown any interest in his daughter and it wreaks of revenge/power play.

To add to the fact that this is the first time he ever really has shown interest in her he:
- Has been abusive to her mum in front of her (daughter), causing her to often say she is scared of him (I realise this is probably also partly due to mum projecting her own fears onto the child). Mum has never spoken to their daughter about him in a negative way, she has always been reassuring that daddy still loves her in an attempt to avoid any possible abandonment issues.
- He has never been dependable when they have tried to organise visits in the past, almost always calling it off or arriving hours late.
- When he has had her, mum has arrived to a distressed child, craving attention due to the fact all he has done is sit on his phone or sleep on the couch the whole time (their daughter often comes home to say thats what he did with her for the day).
- He is supposed to be on medication which he is not taking. Leading to erratic behaviour, including disappearing for weeks without returning calls or messages (during these times none knows where he is, not even his parents).

Also:
A child psychologist they have been seeing for around 2 years has recently concluded that she is profoundly gifted. Meaning she is highly sensitive to change, emotional distress and anything that isn't routine.
She has also seriously recommended that the daughter not see dad, as it would be detrimental to her emotional wellbeing (she has met the dad prior to the abuse and also when it was beginning to happen). She also stated that since their daughter hasn't been in contact with dad in recent times, her emotional state has been far more stable. That the constant inconsistency dad was providing had been causing great amounts of distress for their daughter.

Is there any chance of restricting his access to the daughter (to at least supervised access) to avoid anymore distress to the child as she would be hysterical if she had to spend time alone with him? Or would family court still be in favour of him having equal rights to her? Also, would there be a way of achieving this without having to go through court, like a mediation?

All messages between mum and dad have been recorded, showing how uninterested, abusive and unreliable he has been if this helps at all.

Thank you for your time.

 

[AllForHer]

I've mentioned to you before about fact vs opinion. Stating the child 'would be hysterical if she had to spend time alone with him' is a matter of opinion, not fact. Further, the psychologist has not engaged the father in the counselling sessions with the child. Sure, they have met, but unless she has talked to him as a professional and identified psychological issues which he is experiencing that pose a risk to the child, then I would be hesitant about following her advice to restrict contact between father and child.

On the commentary regarding what the father does when the child is in his care, that's a day-to-day decision for the father to make, just as it is the mother's decision what she does or does not do when the child is with her. If he wants to sit around and spend time on his Facebook when the child is with him, that's a reflection of his personality, not his capacity to parent, and remember that the child is entitled to know her father and his personality, even if he is a boring git who just sits around all day and plays on his phone.

On the child saying she is scared of her father, this might be a matter of opinion or of fact, depending on who presents the evidence and how it is attained. The child may fear the father, or she may simply be saying she's scared of the father because she senses her mother's feelings about the father and would rather just say what she thinks the mother wants to hear. A family consultant would be the person needed to determine the reality of that situation, really.

On being abusive to the mother in front of the child, the court knows that parents go through bad breakups, and there are many ways the court will attempt to reduce the risk of the child witnessing the alleged abuse that won't involve supervised access or no access at all. It may order that changeovers occur at a public place or a police station or at the child's kindy or with a third party present. Likewise, the court may order the parties to attend a parenting orders program to try and address the conflict.

On his dependability, of course this is an issue, but that just makes the case for having a parenting plan or parenting orders that stipulate set times and days for the child to spend time (or be available to spend time) with the father. It simplifies things - the child is to be presented at Restaurant A in Suburb B at Time C on Day D to spend time with the father, and returned to Restaurant A in Suburb B at Time E on Day F at the conclusion of the child's time with the father. If the father is unable to care for the child, at least 48 hours notice is to be given, etc.

What I'm trying to show you is that there are a hundred different ways to address the issues your friend is experiencing without insisting on supervised access or no access at all, and even making that insistence will likely result in the matter ending up in court. See you later, $20,000 and two years of your life.

It would be better to attend a family dispute resolution conference (or mediation) to try and create a parenting plan or orders that reduce the opportunity for conflict to arise while still facilitating time between the father and child, rather than looking for ways and excuses to demand supervised time or no time at all.

Your friend should contact Legal Aid, Relationships Australia or an accredited family law mediator to organise a mediation session. I hope this helps.