Geesche Jacobsen CRIME EDITOR January 11, 2011
A JUDGE hearing a dispute over access to a five-year-old child has said the girl should no longer sleep in the same room as her mother or half-sister, so that she is better prepared to stay overnight with her father with whom she has never lived.
The Family Court ordered the girl have overnight visits to her father from January even though a family consultant said in October that she would not be confident ''for some considerable time'' to stay overnight. Another psychologist had recommended the child be given ''no less than two years'' to adjust to sleepovers at her father's home.
The mother, a Japanese migrant who cannot be named for legal reasons, says she has concerns for her daughter's well being if she were to stay with her former husband overnight.
The couple were married for less than a year before they separated, and the girl was born after the separation.
Her mother, Ms K, said she was abused and was later awarded an apprehended violence order, which also named the child as a protected person. This has since expired. The law requires Ms K to encourage her daughter to visit the father despite her concerns.
When the orders were made in court, Ms K was not legally represented and had asked for the case to be adjourned pending her appeal for legal aid. She also said she had trouble following the proceedings because the court did not wait for her translator to translate what was said. A request for a friend to help her was denied at least once.
An application for a stay was rejected and she has been told it could take about 11 months for an appeal to be heard.
The girl has slept away from her mother's home only if either her mother or older half sister was with her, and at home sleeps in the same room as either of them.
But, in a complaint to the Chief Justice, Diana Bryant, Ms K accused the judge of bias and said: ''The living arrangements in my home are none of Justice Ryan's business; her instructions are an invasion of my privacy.''
Justice Judith Ryan saidSteps ''should be taken within the mother's home forthwith'' to progress the girl's ''emotional readiness for overnight time with the father.
'The child is old enough to sleep independently from her mother and sister.
Ms K says the father has failed to abide by earlier visiting arrangements. He disputes this and claims she has breached the arrangement and is failing to encourage their daughter to visit him. The court is yet to hear this dispute but has made interim orders for access.
When refusing the stay,
Justice Ryan saidI have reservations about the mother's bona fides and whether her appeal is merely a delay tactic.
There is hardship to [the father] and not insubstantial risk of harm to him and the child developing a meaningful relationship if the commencement of overnight time is further delayed.
The child has recently refused to visit the father even during the day.
Secretary of the Shared Parenting Council, Wayne Butler saidThis is clearly a tragic case where the mother, for reasons we are not privy to, has decided it is not in the interests of her remaining family to allow contact with the father. She has been successful in obtaining an apprehended violence order, which also named the child as a protected person. This is becoming relatively common in these sorts of matters and the Family Law Act is clear in s60CC (k) any family violence order that applies to the child or a member of the childs family, if: (i) the order is a final order;. In this case there is no order and it has expired so it is no longer considered with the relevancy that it may have been given had it been in operation as a final order.
I would suggest in this case and without seeing the judgement; that the Judge, quite correctly to her credit, looked carefully at a part of the Act that is being recommended for repeal (item 18 through 20) in the current legislative review. That is section 60CC (4) and I quote it for accuracy here…. Without limiting paragraphs (3)(c ) and (i), the court must consider the extent to which each of the childs parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the childs parents:
(a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c ) has fulfilled, or failed to fulfil, the parents obligation to maintain the child.
It will be a dismal day indeed if we see the repeal of these critical provisions which ensure the child has a reasonable chance of contact with both parents. It is quite tragic when one parent for whatever reason, decides to withhold contact even with court orders in place.
We cannot blame the courts in these cases, only the errant parent; but what we can do is ask the court to consider 60CC and continue to make orders that facilitate the setting up of an environment that will facilitate proper contacts and relationships for the children.. Even to the extent of changing the living arrangements to be with the parent who is and would provide such encouragement and environment.