By Rachael Murray, Partner

The recent decision of Haak & Jusic [2020] FCCA 45 highlights the importance of long term compliance with advice from treating practitioners for parents managing serious mental health difficulties.

In this decision, Judge Smith of the Federal Circuit Court in Sydney made orders for a father to have sole parental responsibility for a three year old child, and for the child to have limited supervised time with their mother, who has borderline personality disorder. In making parenting orders the Court found that the child’s safety required supervision of time between mother and child until:

1. the mother had undertaken long term treatment of her condition with no evidence of relapse or major incidents occurring; and
2. the child reached an age where they could demonstrate appropriate self-protective capacity. The Court expert in this case assessed this would not be until the child reached at least the age of seven or eight.

In oral evidence, the single expert provided a summary of the characteristics of the mother’s borderline personality disorder, saying, “It’s a pervasive longstanding pattern of interpersonal relationship dysfunction. … Its origins occur in response to childhood trauma or abuse. The features include impulsive behaviour, erratic behaviour, a propensity to feel enormous distress if abandonment is perceived. So typically, people with borderline personality disorder will have difficulties in relationships when they perceive the other person disagrees with them or the other person objects to some aspect of their behaviour. Unfortunately, it’s also associated with a high degree of risk-taking behaviour, suicidal behaviour, self-injurious behaviour. Occasionally, violent and antisocial behaviour, not as an organic response to things but in response to desperation and distress. The theory behind borderline personality disorder is that the person doesn’t really have a very good system of emotional regulation and emotional organisation, so they do feel things very intensely and find it very difficult to have a proportionate response to stressors, and particularly perceived rejection and relationship stressors.”

The expert went on to confirm the theory is that a person never recovers from a diagnosis of borderline personality disorder. It is a lifelong trait, but there are better managed cases and unlike an illness like depression which can have a pattern of recurrence and then remission, borderline personality traits or the symptoms of the disorder tend to be continuous through the lifespan of the person. Had the mother’s case been effectively managed, and had she been in a position to adduce evidence about her preparedness to engage in treatment and develop insight into her actions and the impact these have on her child, the outcome may have been very different in terms of the orders ultimately made by the Court.

If you or your former partner have a personality disorder, it is important to seek advice from a family law expert who has experience in running these types of cases before the Court. There are different clusters of personality disorders, and they are grouped as follows:

1. Cluster A: odd and eccentric – paranoid personality disorder, schizoid personality disorder, schizotypal personality disorder
2. Cluster B: emotional, erratic or dramatic – antisocial personality disorder, borderline personality disorder, histrionic personality disorder, narcissistic personality disorder
3. Cluster C: anxious or fearful – avoidant personality disorder, dependent personality disorder, obsessive compulsive personality disorder.

It is the cluster B disorders that we tend to see a lot of in family law litigation. People with personality disorders are frequently referred to as “high conflict personalities”. These are people who desperately crave empathy, attention and respect. They are fundamentally adversarial personalities, preoccupied with blaming others, and will move from conflict to conflict searching out someone who will give them a positive response. Generally, high conflict personalities do not feel connected to people, they do not have many close friends, and they feel as though people do not care about them. They do not receive a lot of positive feedback in their day to day lives.

High conflict personalities live with constant fear and uncertainty. Depending on the personality traits, their fears are different, but they are magnified in times of relationship stress and breakdown. People with borderline personality disorder fear abandonment and rejection. A narcissist fears being inferior. Someone with histrionic personality disorder lives with a fear of being ignored whereas the antisocial personality disorder is most concerned about being dominated. A common feature of all personality disorders is a lack of insight and self awareness.

There are some behaviors that are common to all high conflict personalities. These people will have a target of blame (usually a former partner, a colleague, family member or friend), they will engage in a lot of “all or nothing” thinking, they will exhibit unmanaged emotions and extreme behaviors. Add to this specific traits of different personality disorders such as:

1. Antisocial high conflict personalities – aggressive, lacking in conscience or remorse, a mix of charming, deceptive and cruel. These people will punish their targets in relationships and then expect affection even after hurting them. Also referred to as sociopaths or psychopaths.
2. Narcissistic high conflict personalities – entirely self absorbed, focus intently on their targets of blame to prove that they are superior. They will insult and put their partner down while demanding affection and admiration. Zero empathy for others. Their behavior is completely justified because of the actions of others.
3. Borderline high conflict personalities – fear of abandonment, unstable relationships, sudden and intense anger, self-harming, unstable-self image, impulsiveness. Preoccupied with close relationships and driven to cling to them to avoid feelings of abandonment. Their mood swings and anger can be dangerous physically, emotionally, legally, financially or otherwise. These are the people who will engage in parenting disputes with extreme behavior including alienation of children, or making false allegations of abuse and/or violence.
4. Paranoid high conflict personalities – suspicious of everyone in their world. The world conspires against them to block friendship, intimate relationship and work opportunities. They feel unjustly treated in all aspects of their lives and will carry a grudge for years. They will potentially attack their targets pre-emptively based on a belief that they are about to be harmed.

It can be very challenging acting for parties who have personality disorders, or for those who have been in relationships with high conflict personalities. Unless your family lawyer has a lot of experience dealing with these types of people, the strategy that they choose to implement can often make the conflict even worse. For example, many standard dispute resolution processes simply will not work when you are dealing with a high conflict personality. Processes such as mediation and collaboration are usually unproductive because of a high conflict personalities’ inclination towards splitting – and because they will view any compromise as a loss. High conflict personalities will feel as though they have to behave towards their former partner in a particular (negative) way, and they feel a strong urge to convince other people that they have to do the same.

If you are engaged in a dispute with someone displaying characteristics of a personality disorder, you should seek strategic advice at an early stage from a family lawyer experienced in running these types of complex cases.

If you need assistance with a parenting matter involving a personality disorder, or for more information or discussion, please contact the Mills Oakley Family and Relationship Law team.