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Fathers contact letters and birthday cards only

Gaylard & Cain [2012] FMCAfam 501 (30 May 2012) Federal Magistrate Tom Altobelli banned the father of the 11-year-old boy and six-year-old girl from seeing his children but wanted to explain to the children that he had not believed allegations that their

From the Family Law Web Guide news and ABC News 7 June 2012 as well case published for review

Magistrate praised for kids letter on custody call
 
A magistrate has been praised for writing a letter to two children explaining why he had given sole custody to their mother.
 
Federal Magistrate Tom Altobelli banned the father of the 11-year-old boy and six-year-old girl from seeing his children.
 
But Mr Altobelli wanted to explain to the children that he had not believed allegations that their father had abused them.
 
He wrote a letter for the children saying that he had to make a hard, sad decision.
 
The letter was written for the children to open on their 14th birthdays.
 
A former chief justice of the Family Court of Australia, Alastair Nicholson, says the letter may help the children in years to come.
 
"Children are inevitably going to be affected by being the subject of a dispute like this and they're going to need help whichever way but this is perhaps one way of tackling the problem," he said.
 
"It's an extraordinarily difficult decision but I certainly think that what he's done in terms of the letter is quite innovative and if that decision is to stand, well, it would at least give the children some explanation of why."
 

  NineMSN published 7 JuneNineMSN
I knew your mum would look after you: judge
By Emily O'Keefe, ninemsn

A family court judge has taken the unusual step of writing a personal letter to two children explaining why he gave sole custody of them to their mother.

In the letter, Federal Magistrate Tom Altobelli told the children he did not accept their mothers' claims that their father sexually abused them, but still thought it would be best if they lived with her, the Herald Sun reports.

Mr Altobelli issued court orders stating that the 11-year-old boy and his six-year-old sister have no contact with the father apart from letters, birthday cards and gifts.

The magistrate wrote in the letter, which is to be opened by the children once they turn 14, that the custody dispute was "a hard, sad case to decide" but made a personal plea for them to renew contact with their father when they were older.

"At the time I had to decide the case your mum believed in her heart that your dad hurt you," the letter read.

"My job is to look at all the information, and listen very carefully to what everybody says, including the experts. I decided that you had not been hurt by your dad."

"Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you.

"I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this."

The 38-year-old mother and father, 41, ended their "unhappy" eight-year relationship in 2009, the court heard.

Source: Herald Sun / Author: Emily O'Keefe. News editor: Henri Paget.

 ————————

Herald Sun Melbourne 7 June
Sorry I took daddy - Federal Magistrate Tom Altobelli

By Padraic Murphy Email Author Padraic Murphy
 
Federal Magistrate Tom Altobelli published his decision on the court's website, ordering the boy, 11, and his sister, 6, to live with their mum and the dad's contact to be restricted to letters and birthday cards.
182 views (64 KB)
A judge has taken the extraordinary step of writing to two children involved in a custody dispute explaining why he gave sole custody to their mum even though he doesn't accept her claims their dad abused them.
 
Federal Magistrate Tom Altobelli published his decision on the court's website, ordering the boy, 11, and his sister, 6, to live with their mum and the dad's contact to be restricted to letters and birthday cards.
The judge's letter, which is to be opened once the children turn 14, is a plea that the children renew contact with the father, explaining that their mother's claims he abused them are false.
"At the time I had to decide the case your mum believed in her heart that your dad hurt you," he has written.

"My job is to look at all the information, and listen very carefully to what everybody says, including the experts. I decided that you had not been hurt by your dad," Mr Altobelli wrote.
"Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a person's heart.

"I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time.
"I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this."
The mother, in her 30s, and father, in his 40s, began their relationship in 2001 before separating in 2009 after what the court described as an unhappy relationship.
The mother became convinced the father had sexually abused their daughter, a view she reached after her own mother had seen a clairvoyant who had predicted the abuse.
The mother was given sole custody because the court ruled she was the better parent.
"Despite the mother's grossly distorted lens through which she views the father and the events that bring this matter to court, she is a more than adequate parent," Mr Altobelli wrote.
"Indeed that parenting capacity will most likely increase with relocation. Despite the father's good intentions, optimism and courageous position in this case, I am far less satisfied about his capacity to parent these children on the facts of this case."
Slater & Gordon lawyer Steven Edward said
It was the first time in 25 years in family law he had seen a magistrate write a personal letter to children involved in custody case.

"I suppose families are more complex


  Tom Altobelli's letter to two children
Tom Altobelli's letter
 
Herald Sun (Melbourne)
7 June 2012

Federal Magistrate Tom Altobelli's letter to two children
By Tom Altobelli

    DEAR X and Y, AFTER your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time.

    As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist.

    Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably wont read it for many years.

    The most important thing I want to tell you is that both your mum and dad love you very much.

    They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.

    At the time I had to decide the case your mum believed in her heart that your dad hurt you.

    My job is to look at all the information, and listen very carefully to what everybody says including the experts.

    I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you.

    This just goes to show that sometimes words do not change a persons heart.

    At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him.

    I dont think you really meant this. I think maybe you were picking up the things that mum was worried about.

    I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.

    I told you this was a hard, sad case to decide.

    I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time.

    I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.

    By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again.

    There are people called counsellors who can help you with how you feel about this, and help you to make it happen.

    Please remember that both your mum and dad love you very much, even if they love you in different ways.

… rest of the letter unobtainable

and

Not speaking directly to the children, Mr Altobelli went on to explain his reasons further:

    Despite the mothers grossly distorted lens through which she views the father and the events that bring this matter to court, she is a more than adequate parent, he said.

    Indeed that parenting capacity will most likely increase with relocation. Despite the fathers good intentions, optimism and courageous position in this case, I am far less satisfied about his capacity to parent these children on the facts of this case.
 

 
The LAW Blog : Charles Pragnell argues the rights of children are largely ignored by the Family Court

The ill treatment of children by family law
By Charles Pragnell
7 June 2012
The National Child Protection Alliance
Opinion
 
Although the Australian Government signed the UN Convention on the Rights of the Child in 1991, it has been little more than a token gesture, as those rights have never wholly been embodied in the laws of Australia and are given little regard in legal proceedings such as the Family Courts.

The most important of the rights of children and young people are that they can have their say in judicial and administrative proceedings, and for their views to be given serious consideration when determinations are made regarding their future care and wellbeing, and who they will live with.

They also have the right to be protected from abuse and exploitation, and whilst State laws reflect this, it is given little heed in family law proceedings.

When considerations are being made under the Family Law Act to the future lives of children, the primary consideration is that the child must have a `meaningful relationship with both parents.

It is of no consequence that the parent may previously not have had a meaningful relationship with their child, or that the child may not want a meaningful relationship with that parent  the child or young person is ordered to do so.

And how can any law create, maintain, and enforce a relationship between any two people especially when one of those persons may not wish to have such a relationship?

If a Family Court judge decides to take into account the views of a child or young person in determining the childs future care and welfare, and very few choose to do so, then the judge will usually appoint an independent childrens lawyer [ICL] to put to the court what the lawyer considers to be in the childs best interests.

The lawyer is not required to speak with the child, and very few do so and even if they do so, it is merely a 15-minute office interview. The lawyer will then report to the court what the lawyer believes is best for the child, although lawyers are not trained in child development and the physical, emotional, and intellectual needs of children, and most have little experience in speaking with children.

If they have taken the time to obtain the childs views, they can dismiss such views if they consider the child to be of insufficient age and understanding to hold such views, or have not been forceful enough in presenting their views to the lawyer or consultant.

If a child or young person discloses or reports that they have been abused by one of their parents, then it is common practice that the judge will appoint a court reporter or consultant, usually a psychologist or psychiatrist to give an opinion regarding the childs disclosures.

Only rarely are such reports of child abuse reported to the state child protection authorities in accordance with state laws and to be competently investigated, and such consultants have neither the powers nor the expertise to carry out investigations of allegations of child abuse.

The consultant will usually talk with the child for little more than an hour in an office interview and will then give an opinion to the court regarding the abuse allegations.

Most commonly, the opinion is that the abuse has not taken place and that the child has fabricated the allegations or has been coached by the other parent.

That parent who has reported the childs disclosures to the Court will then be labelled as delusional or to be diagnosed as mentally ill and be seen as being obstructive to the other parents inalienable right to contact with the child.

Yet research has shown that in 96 per cent of instances, children are truthful in their reports of being abused.

If a child or young person refuses to go for contact with a parent after being ordered by a court to do so, and may scream and protest not to have to, the resident parent is expected to make them attend, by force if necessary.

If that parent does not do so, they are viewed by the court as an unfriendly parent and can ultimately be punished by having the child removed from their care and placed with the other parent.

Children and young people often report that they have been abused during contact with some parents and causing them extreme pain and distress, especially when it involves overnight stays, but the resident parent is ordered by the court that they must not report their childs abuse allegations to the statutory authorities and must not take their child for psychological counselling if they are suffering extreme stress and behavioural problems as a consequence of the abuse.

In effect the abusive parent can continue to abuse their child with complete impunity and the protection of the law.

Parents are refused contact with their children in only 0.8 per cent of cases which come before the family courts, yet such cases are those which most commonly involve childrens allegations of abuse and serious intimate partner violence by one of those parents.

In effect, the current family law places the rights of parents as the paramount consideration, and regardless of how toxic, dangerous, or indifferent they may be to the child or young person.

Children are treated merely as inanimate objects and parental possessions, to be shared out as the parents may agree between them or by a family court if they are unable to do so.

Children and young people have no right to a say in those matters, and yet their future lives are so highly dependent on the outcomes.

Charles Pragnell, National Secretary National Child Protection Alliance

Attachment
Read the judgement - Gaylard & Cain [2012] FMCAfam 501 (30 May 2012)

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
You forgot to mention the web address of Charles Pragnell's little group

http://singlemother.net.au/ama/index.html

I'm ambivalent about the Magistrate's actions. On the one hand it shows that he is very aware of the direction in which the problem lies and is trying to reduce the damage done. On the other, if he is not convinced of the truthfulness of the allegations, why is he not taking action against the mother?

I think it highlights a real problem for the Family Law, which is that mothers are given carte blanche to act as outrageously as they like provided they are "good mothers". The latest amendments to the law are simply going to make this far more prevalent, I fear. There is a whole new "stolen generation" being created, only in this case it's their Dads who are being robbed.
I have no reservations in playing devil's advocate and I once again I will do so.

If the father had been convinced by a psychic that illegal activity was taking place whilst the children were in the care of the mother, he'd be ejected from the court without hesitation.

I'd be very interested to know how the child support aspect of this case has been managed. The father, although by no means nearing sainthood, has been established as being of good character and a capable parent, yet his Honour has stopped him from ever seeing his kids. He will pay top dollar until the orders cease or the children reach adulthood and CS loses applicability.

I know it's an extreme case but it sets a frightening precedent. Not only would that woman be protected by law in falsifying evidence (at least she would know that she'll never be punished) but it opens the door for other parents to make outrageous, untrue claims and use them as evidence…and win.

Don't have kids!
That is a very sad situation for those kids & their father. The mother must be suffering from some kind of unrecognized disorder to be so convinced about a 'psychics' prediction. It's is a dangerous precedent.

I really think where there is parental alienation or the potential for it, parents should be given an exemption from FDR, just like where there is violence. These parents separated in 2009, which has given the mother ample time to inflict the damage on her kids that she has.
Sleepy said
Don't have kids!
 
Sadly, that's the message being promoted to men.
children grow up and become adults, leave home and make their own decessions, child support stops at 18, Parents who make false accusations have the rest of their lives to live with the fear that one day that child may turn round and say YOU DID THIS
That may be so, but what of the father in the extended interim? Not a fair system, and a particularly cruel one which in this case has supported the mindless idiocy of a deranged and totally misguided mother. She belongs in a padded cell.
At least the kids will not blame their father after reading the letter and might even re-establish their relationship and live with him.

Just wondering how the court will administer these orders. Will they send a court officer to the children on their 14 birthday to ensure they get the letter and supervise them whilst they read it?

And sadly looking around at other sites, there are quite a few opinions along the lines of why were the children "given" to the mother, and the father "allowed" minimal contact.

I am aware that FM Altobelli is well respected, but the "common" man (or woman) is very confused.
Boots said
And sadly looking around at other sites, there are quite a few opinions along the lines of why were the children "given" to the mother, and the father "allowed" minimal contact.

I am aware that FM Altobelli is well respected, but the "common" man (or woman) is very confused.
Thank you for raising this point. I think there is a lot of confusion and reading some of the hundreds of post responses to SMH and other news papers in their "opinion" sections there is some anxiety that these orders seem at odds with expectation. If I get a chance I will endeavour to see if I can get any additional commentary other than what is published in the case file. Either there is some reporting that is at odds with the facts or there is additional material. FM Altobelli is an incredibly experienced Federal Magistrate and we would have to believe that he would have very carefully looked at all of the circumstances. The press seems to report these things as they would wish to see them and we saw that in the case in Queensland with the Italian father and the Hague convention case and nothing is what it is reported. It does not help this case but I must suggest that some caution is required when reading the news paper publications.




Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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