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Irish & Michelle [2009] FamCA 66 6/02/2009

Reversal of Lives with Parent - FAMILY LAW CHILDREN Equal shared parental responsibility With whom a child lives childs view issues of credit alienation of child from parent

Two children who have been in the care of their mother since their parents separated in 2005 have been sent from Hobart to live with their father in Melbourne after the Family Court (Irish & Michelle; PDF attached below) heard the mother encouraged them to have "negative" feelings about their dad.

The two children - a girl, aged nine, and a boy, aged seven - had been struggling with "change overs" between parents, saying things such as "I don't want to go" and "I don't have to go" when their father arrived in Tasmania from Melbourne to collect them for access visits.

The court found the mother did not discourage them from saying these things, and did not encourage a positive relationship between the children and their father.

Irish & Michelle [2009] FamCA 66 6/02/2009

Executive Secretary - Shared Parenting Council of Australia
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A Note on the Irish & Michelle Judgement

A Note on the Irish & Michelle Judgement (Family Court Australia, 66, 6 February 2009)
By an SPCA Author

This case has been unfairly described as "a win for fathers."  It's nothing of the sort.  It's a win for children.  Faced with the evidence that was revealed to Justice Benjamin, any decent judge would have made the same decision, even before the shared parenting reforms came into force.  Indeed, it was not a case about shared parenting.  It was a case where the custody of the children had to be changed for their protection.

Those who describe this as "an amazing decision" should read Justice Benjamin's careful judgement.  He was scrupulous in his considerations of all the criteria required of him by the Family Law Act with regard to the best interests of these children.  He fairly assessed the characters and capacities of both mother and father.  He sensibly accepted the evidence of two experts regarding the welfare of the two children, a girl of nine years and a boy of seven.

The evidence before the judge was alarming.  He found that the mother was not simply making it difficult for the children to have a meaningful relationship with their father, she was poisoning their young minds to cause them to hate him and to be reluctant to spend time with him.  It was clear to the judge that the mother was indoctrinating the children with "devastating effects" on them.  The girl was in therapy, and His Honour found that the mother was in need of psychological assistance.

Moreover, he concluded that there was an "unacceptable risk" that the emotional damage to the children would continue if they remained in their mother's care, and that occasional contact with their father would not be enough to ameliorate this damage.  Indeed, he said that, in their mother's custody, there was little likelihood that the children would continue to see their father.

The article in the Australian (2 April 2009) was fair in most respects.  But on one point, it was seriously short of the mark.  The reporter wrote that in this case there was no suggestion of physical abuse or neglect.  True, but there was clear evidence of emotional abuse.  Here was a mother who was emotionally abusing her children.  To prey on young minds in such a way as to cause them to hate someone who is good and worthy, to so destroy their innocence in human relationships, is vile abuse.  It's amazing that many commentators equate violence only with physical assault.  Serious emotional abuse can be more harmful.  A child does not begin to hate a parent for no reason at all.

As a Canadian judge recently said:  "Hatred is not an emotion that comes naturally to a child.  It has to be taught."

There was another significant element in this case which has been ignored by its critics.  There had been a twelve-week trial period when the children had lived with the father and visited their mother.  There was evidence before Justice Benjamin that this had been successful for all parties.  The girl's emotions and behaviour had become settled.  The boy had done well.

Importantly, the communication between mother and father had improved.  In other words, a better parenting arrangement had led to less conflict between the parents, all to the benefit of the children.  This situation, well supported by overseas research, illustrates the nonsense of the view that the cure for conflict is less contact.

Following the trial period, the children returned to their mother's care.  The evidence before the judge was that their situation had again deteriorated.  The girl, in particular, had become unsettled.

Faced with all the above and more, what could a judge do?  The evidence was overwhelming.  This was a correct and wise judgement and result, whether viewed in light of the new Act or the old.  It will be tragic for these children if the orders are disturbed on appeal.  Another outcome would be outrageous.

PDF Version of these Notes: Irish & Michelle FCA 66, 6/2/2009
Thanks for the extra information Matrix. It put the case into a proper perspective.

It was rather scary to read A WIN FOR DAD'S in the newspaper which just fuels the Dad v Mum scenario. You are 100% right it is and was always about the children.

The media however altered the perspective to make it more about the mother and father than the children. That is not the message we want to see. Ever. In it's own way the case should be deemed as a warning not to interfere with the psyche of children.

For the damage done by this is substantial and unfair on any child. I wonder if the people who were quoted in the newspapers were fully aware of the circumstances in this particular case?
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