13 April 2009
Virtual parenting adequate, says court
By Caroline Overington
The Family Court is allowing mothers to leave the country with their children, provided they agree to sign up for the internet-based video telephone service Skype.
A compulsory subscription to Skype, which allows parents to see their children on the computer screen while talking to them, has been a feature of 10 Family Court cases this year.
One judge has said the technology was helping to mitigate the "tyranny of distance" arising from divorce and forging "meaningful relationships" between children and their parents, wherever in the world they live.
In one recent case, known in court records as Bletch and Douglas (2008), a mother was allowed to move with her nine-year-old son to the US after developing a "unique communications skill" that landed her an "elevated media profile", a $450,000 book advance, and interest from American talk shows.
But, she was told, she had to "ensure that whilst the child lives with her in America he has reasonable access to a computer which has a Skype program installed, together with a webcam, in order that the child may communicate with his father by that means or by email at times which the child and his father may mutually agree upon".
In Bradley and Bradley (2009), a mother was permitted to return to her native Sweden with her two children, after her marriage ended.
The judge acknowledged the distress this would cause the children's father, saying "communication with the children will be difficult" since they would be living on opposite sides of the world, but this "can be managed with Skype, video and trips".
He ordered the mother to "obtain a computer which has internet access installed, including a webcam and Skype" within 14 days of her arrival in Sweden, and to provide the father with the children's email addresses.
In Rossi and Rossi (2008) both parents were ordered to "each set up at their own expense as soon as practicable, but within eight weeks, a computer with internet connection and a webcam and Skype".
In Garth and Hope (2008) federal magistrate Stewart Brown said Skype was a "cheap, accessible and effective way" for children to stay in contact with their absent parent.
"Although it is no substitute for direct physical contact, these media, in my view, dilute to a significant degree some of the tyranny of distance," he said.
But not all judges believe that Skype can facilitate a meaningful relationship.
In Cales v Cales, Justice John Cohen refused a mother's petition to move from Sydney to the Hunter Valley, saying "real rather than virtual closeness" to their father was more important to the children than her desire to move. The mother told the court the "Skype program could be used, so the children could see (their father) while speaking to him, and the children would enjoy contact with (their father) in this manner".
Justice Cohen disagreed, saying "the reality of all types of communication other than face-to-face is that they are inferior, and only a default choice".
"I consider the children's need for, and right to have, optimal real contact with their father as much more important" than the mother's desire to live a rural life.
In Irish and Michelle (2009), a case in which children were removed from the care of their mother in Tasmania and ordered to live with their father in Melbourne, Justice Benjamin said there was "no reason why the children cannot maintain contact with the other parent via telephone, Skype and email".
At the other end of the communications revolution, a public service official based in Canberra used Skype to give up his battle to prevent his former wife from moving to Gippsland with their daughter.
His message to his wife, read out in court, read: "Hello, please feel free to relocate to (Gippsland) with (the child).
"I have no interest, time or energy for this matter to be played out in a court of law.
"Please note that (the child) repeatedly said that she does not want to move to (Gippsland) in our Skype conversation today.
"However, I hope the move and your new job in (Gippsland) becomes all you want it to be and wish you the best of luck and success."
Secretary SPCA saidThe Council has written extensive submissions to the Family Law Council regarding relocation. We acknowledge that the relocation cases are the hardest of cases and most difficult for the Family and other courts that have jurisdiction in such matters.
We accept that there are numerous factors in determining relocation cases however we also comment that the courts in the past have been gridlocked in a paradigm of ideas of a legalistic nature that seldom align with the realities of families.
The consequences of parental rights deprivations have been to harm the development of children by removing a fit and willing parent from their parenting role.
In skewing custody determinations in favour of one parent over another the court has unwittingly, almost exclusively promoted the interests of one parent ahead of the other often at the expense of the best interests of the child.
The Governments response to the HORISP report Every Picture Tells a Story has been to make substantial legal reforms by way of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 to encourage the judiciary to consider shared parenting outcomes in the first instance for separating couples.
If the presumption of Shared Parental Responsibility is met then the court is required to consider equal or substantially equal time parenting orders, and in the absence of factors conducive to exercising equal time, the court must still consider substantial time which is greater than the standard fortnightly contact for non-custodial parents model adopted by the courts previously.
It is incumbent on the Family Court to maximise real parenting time for fit and willing parents who simply want to continue their relationship with their children.
It will be manifestly clear to all, in the operation of the new laws, if the court reverts to its previous policies and doctrines that are prejudiced against shared parenting time and judges start to exercise judgements that try to effect a remote parenting regime through electronic nicities such as Skype and MSN. The Council will not accept a fundamental shift in the idea of real parenting time for fathers.
Justice Cohen should be applauded and strongly supported where he disagreed with the mother who told the court the "Skype program could be used, so the children could see (their father) while speaking to him, and the children would enjoy contact with (their father) in this manner"
Justice Cohen is absolutely right in saying "the reality of all types of communication other than face-to-face is that they are inferior, and only a default choice". He said "I consider the children's need for, and right to have, optimal real contact with their father as much more important" than the mother's desire to live a rural life.
Relocation effectively ends the relationship and bond between children and the other parent. There is no possible hope of using the internet 'Gadgets" as an option for any reasonable parenting. It seems there are short memories and cases like the 'Russell Wood' case in WA are fast becoming a distant memory. The SPCA has not and will never forget those despicable cretins involved in that case. Unfortunately there are others like it