Sole Decision Making for Children Provided to Mother in a Shared Care Arrangement Where There was High and Chronic Parental Conflict

This article considers the recent decision of Division 1 of the Appellate Court in family law parenting proceedings Van Wyk & Van Wyk (No 2) [2025] FedCFamC2F 552.

The father appealed final orders in Division 1 of the Federal Circuit and Family Court of Australia.

An AI generated depiction of a father trying to be heard in a family law court to express his views on how he can best help his children.

In the primary proceedings, the Justice determined that the mother have sole decision making in relation to the exercise of parental responsibility for major long term decisions for the parties' two children, then aged 14 and 11, save that the father would have sole decision making in relation to the 11 year old child's psychological treatment and tutoring.

The children were living with each parent on a week-about basis.

Both parents had psychological challenges.  The mother had chronic pain and depression and was receiving the disability support pension, lived in rented accommodation and had not worked since 2020 due to health issues.  The father was receiving psychological counselling, had not worked full time due to mental health issues, and had assumed a stay-at-home parenting role.

The parties' eldest child (then 14 years old) was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and other special needs.  The child had engaged in self-harming behaviours and was receiving ongoing psychological support.

The parties' youngest child (then 11 years old) had been diagnosed with ADHD, Oppositional Defiant Disorder and severe learning disorders.  The child's therapist reported the child had suicidal ideation and emotional distress, which occurred around school transitions and as a result of being in the middle of parental conflict. It was found that the parent's conflict was causing the child emotional and psychological harm.

The parent's relationship was considered to be conflictual, tumultuous with mutual allegations of controlling behaviour and allegations of family violence.  The co-parenting conflict was chronic.  There were domestic violence/family violence protection orders in place during the relationship and after separation.

An AI generated depiction of parents completing changeover, engaging in discussion about parent's problems or adult issues in front of the children which is making the children uncomfortable and causing them stress. The parents probably don't realise the impact their behaviour is having on the children.

The parental conflict continued after separation, in particular in relation to parenting decisions and co-parenting dynamics.

A family report writer was appointed to prepare a family report to assist the court to understand the dynamics of the situation and family. In the resulting family report, it was assessed the parental conflict was severe, that it has impacted the children and that the parental conflict had caused harm to the children. This was despite both parents being loving and committed caregivers to the children. It was likely that the parental dynamic was impacting on the children by causing them stress and increasing difficulties for the children's learning and attention at school.

The juxtaposition of being loving and committed caregivers while also having high conflict co-parenting, lead to a finding that the parents were unable to put the children's needs before their own when it came to co-parenting and the conflict between them reflecting the chronic and long running nature of the conflict.

The children expressed strong views during the family report assessment that they wished to continue in a week about or shared care arrangement with their parents.  There were assertions that the parents had tried to influence or coach the children's views. There was a finding that the father has told a child that the child should say they wanted to live with him so they would receive a "proper education".

The family report writer made a recommendation that the children remain in a shared care or 50/50 arrangement as the children expressed this view and the children had a strong attachment to both parents.

However, the family report writer recommended that the mother have sole decision making in the exercise of parental responsibility for all major long term decisions for the children in light of the father's tendency to escalate conflict and consideration that the mother had greater insight into the needs of the children.

The father was considered to have a tendency to raise issues with the children's treatment providers in order to try and present himself as the better parent which was ultimately detracting from the children's own needs and disruptive to therapeutic supports. It appeared the father was using the child's treaters to further his conflict or opinions and assessments of the mother's capacity to parent, whereas the children's treaters were there to assist the children with their psychological and developmental needs.

The co-parenting conflict was assessed to be chronic and the children's need for stability, predictability and consistency was important, noting the judgement states it was of paramount importance for the children's parents to prioritise the children's need for safety, stability and security and that the children be protected from further parental conflict.

The primary judge considered all of the evidence and made final orders for the children to live with both parents on a 50/50 or shared care basis, the mother was to have sole decision making for parental responsibility for all long term decisions for the children, save that the father have sole decision making for the psychological treatment and tutoring of the youngest child as the father had supported and solely paid for the child to access these services without conflict and it was important that the support continue for the child considering their special needs without disruption.

This judgement shows how parental conflict, a parent's own psychological issues and parent's emotions can lead parents to focus more on conflict than the needs of children. Each parent believed they were doing the right thing for the child, and yet, ultimately the conflict was leading to stress, psychological harm, developmental delay and disruption to the children's important treatment for their special needs.

This case shows that involving children in "parent's problems" or "adult issues" can have a serious impact on their development and wellbeing particularly in the case of chronic parental conflict and disagreement about what are the best actions and decision to make for a child.

Acting in the best interests of the children means parents must put aside their differences and past issues, and ensure they consider the child's developmental, psychological, emotional and cultural needs, including by not making treatment about themselves or trying to be seen as a good parent, but by considering and meeting the child's developmental needs.

As this case demonstrates, where parents demonstrate that they cannot put the children's developmental, psychological, emotional and cultural needs before their own conflict and/or needs and/or psychological issues, family law courts are empowered to make orders for the best interests of the child including as to living arrangements and exercise of parental responsibility and decision making in relation to major long term issues for the children.