The so-called ‘friendly parent’ provision is s 60CC(3)(c), which provides, in substance, that among the ‘additional considerations’ to be taken into account in determining the child’s best interests is
the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
It is obvious that in ordinary circumstances it is an important part of each parent’s role to encourage their children to have a close and continuing relationship with the other. This is especially so when one parent is away from the children. Thus in intact families, when one parent is away for substantial periods, for example in military service, the parent left with the children should, for example, encourage the children to keep in contact with the absent parent by phone, email, or other means, help the children understand why the parent is away, assure them that the absent parent still loves them, and so on.
This is particularly important when parents separate. Children need to know that while the parents are separated from each other, they do not cease to love their children or cease to be their parents. But when the separation is not amicable, each parent will commonly feel anger and hurt towards the other, and it must sometimes be difficult in such situations for the parent with the children not to express that anger to the children, and not to denigrate the other parent. Similarly, it must often be difficult for parents to resist painting the other parent in a poor light, and encouraging children to take one parent’s side. Parents have many difficult tasks when they separate, and sometimes one of the most difficult is to bite one’s tongue when tempted to make a disparaging remark to the children about the other parent.
This point is generally accepted, and is frequently made - more eloquently than I have made it - in the literature designed to help separating parents. Similarly, the point is frequently made by judicial officers in their judgments and in discussions with the parties and their representatives.
It is therefore entirely understandable that the legislature might have thought it desirable to make this familiar and important point by specifically including it among the matters to be taken into account when deciding what is likely to be best for children.
Unfortunately, what is obviously desirable in most families can sometimes be problematical in families that are dysfunctional or have particular problems, including problems associated with violence and abuse. Sometimes, children can be attracted to parents who have abused them or who have been violent. In some circumstances, those parents might constitute a continuing risk for the children. Sometimes the violent parent will continue to provide the child with a role model for dealing with life’s problems by using violence.
In such cases, it would be generally accepted that it is part of the non-violent parent’s task to protect the children from harm. This might involve providing evidence to the court demonstrating why the other parent poses a risk for the children. And it might involve asking the court to make orders preventing the children from spending time with the violent parent, or, in some situations, seeing the other parent only in supervised circumstances.
While the message sent by the ‘friendly parent’ provision is perfectly appropriate in many situations, therefore, it needs to be qualified in some circumstances, such as cases involving some forms of violence and abuse. In such cases, the appropriate message might be that the parent needs first to make sure the children are safe. There may still be a need to try and preserve some benefit from the children’s relationship with the other parent, but it should not compromise the children’s safety.
This point is of course not confined to what is sometimes called ‘controlling violence’. There may be other circumstances, for example where a parent’s ability to care for the children is compromised by mental illness, the other parent will need to take protective action on behalf of the children. It is important in these cases that the legislation should not deter or discourage the parent from taking such protective action in such cases.
A number of submissions made to the Review expressed the view that the ‘friendly parent’ provision has had the unfortunate consequence of discouraging some parents from disclosing violence by the other parent (or, in some cases, by the other parent’s partner). For example the National Legal Aid submission said:
Paradoxically, commonly parties to proceedings who allege significant levels of family violence still seek orders for the children to spend time with the alleged perpetrator. Clients who disclose family violence are mandatorily referred to the provisions of the legislation that highlight encouraging a meaningful relationship between a child and a parent. For example, S 63DA does not mention family violence but sets out the mandatory areas of advice to be given to a client by an advisor. With this dialogue occurring, it is more than possible and in NLA’s experience most likely, that the need for a child to have a meaningful relationship with a parent becomes (in the minds of advisors and the parties) more important a consideration than the need to protect a child from harm. The reported cases and the information provided from legal aid practitioners confirms the emphasis in parenting cases on shared parenting rather than protection from harm despite the 2006 Amendments, or perhaps more accurately, because of them.
[…] If a parent insists on making allegations of family violence prominent at an interim stage, she is usually considered to be an “unfriendly” parent, thus serving to further minimise the issue.
On the material available, it seems likely that the friendly parent provision, s 60CC(3)(c), while it might have had a beneficial effect in many situations, has had the undesirable consequence in some cases of discouraging some parents affected by violence from disclosing that violence to the family court. It is appropriate, therefore, to consider whether some amendment would remove this undesirable consequence while retaining the value of the provision in encouraging parents in ordinary circumstances to facilitate the child’s relationship with the other parent.
If the legislation seeks to spell out what is good parenting, it should do so in a way that is appropriate for all the cases that come to the family courts. If the legislation is to state the general desirability of facilitating children’s relationship with the other parent, it should be done in such a way that it also recognises that there are circumstances in which parents need to take action to protect their children, and in some cases this means making serious allegations against the other parent. It is important in these cases that the understandable desire to emphasise the importance of parents supporting each other should not inadvertently lead to provisions that deter or discourage the parent from taking such protective action where this is necessary to protect the children.
The proposals in recommendations 3.3 and 3.4 below, seek to deal with this issue as well as others. However if those recommendations are not adopted, I recommend that paragraph (c) be amended so it refers to the capacity and willingness of each parent to provide for the developmental needs of the child in the circumstances of each case, taking into account, among other things, children’s need for safety and the benefits of a close and continuing relationship with both parents: see below, Recommendation 3.5.