19 August 2007
Read the Mercury (Tasmania) news story here
Pain of divorce felt far and wide
By Michael Stedman
Three months ago Tasmanian father Stephen* felt like his life was crashing down around him.
His former wife was determined to take his eight-year-old son and daughter, aged four, to Brisbane where, without the money to visit them, he knew his ties with them would be severed.
It was the climax of a five-year struggle to see his kids following the couple's tumultuous separation. That included restraining orders placed against him and claims he was "an angry person" at high risk of violence towards his ex-wife - an allegation he rigorously denies.
For years he struggled to pay child support on unemployment benefits and saw his kids just two hours a fortnight.
But even those visits dried up when his wife refused to take them to the contact centre, where he said even the staff seemed pitted against him.
Shortly after the Family Court granted him fortnightly overnight contact, his ex-wife flagged her intention to take the kids to Queensland with her partner and their new baby.
Stephen, the dad saidI am not sure what she was hoping for - that the kids would just forget about me and she could just walk off but it didn't work like that because the kids were more attached to me than they were to her
He saw it as the final attempt to remove the children from his life and the thought of losing them almost drove him to breaking point.
The dispute was finally settled out of court, with his ex-wife abandoning the move and agreeing to an almost equal shared parenting arrangement.
Stephen saidI couldn't afford to visit them; I would have lost all contact with my children. They would never have handled that very well - they weren't handling it well as it was with this year of being away from me.
He was one of the lucky ones.
In most cases the arguments for and against relocation are thrashed out behind the closed doors of the Family Court.
With cheap airfares and increased mobility, interstate and even internationally, relocations are becoming much more common and have become one of the most vexed issues the court has to face.
It has been said that relocation cases aren't problems because problems can be solved; they are dilemmas because dilemmas are unsolvable.
Someone always loses, whether it is the parent who is left behind if the application is successful or, if the application is rejected, the one that is denied the opportunity to start a new life.
In an attempt to defuse the issue the Federal Government introduced the Family Law (shared parental responsibility) Act last year which required the court to consider the best interest of the child, while always aiming for shared parental responsibility rather than the sole custody arrangements that were once the norm.
However, that has only served to muddy the waters. Some say it has made relocations harder, while others argue it has made cases more litigious and downright nasty. If substantiated allegations of abuse or violence are made, the presumption of shared parental responsibility no longer applies.
Statistically it is mothers who are relocating the most, leaving fathers behind in tides with the blessing of the court.
Family Law Practitioners Association of Tasmania president Tony Fitzgerald saidIf someone really wants to go then they can make serious allegations against the other parent like alcohol consumption, drug consumption or abuse in an attempt to prove they are not a good parent
But that is not a view shared by Tasmanian Commissioner for Children and former family lawyer Paul Mason.
Shared Parenting Council of Australia federal director Ed Dabrowski saidJudges were not sticking to the intent of the new legislation.
If a child is removed to the point where a parent can't have shared parenting then there is something inherently wrong with that - we feel that is no different to child abuse.
Just to say I am going to be the sole parent really just demonstrates a focus on that parent's lifestyle choice rather than the children's needs.
He said there were often cases where relocation was in the best interests of the child.
Legal Aid children's lawyer Patrick Fitzgerald is often called on to represent the children who can be the rope at the centre of the relocation tug-of-war.
Former family lawyer Paul Mason saidIf a parent has to stay where they have no family support, no job and are utterly miserable to the point where it affects the child's happiness at home, then relocation can be a good thing. He said children needed less contact to maintain a meaningful relationship than the remaining parent may realise.
From a child's perspective they can have a meaningful relationship with the parent even though they are not spending every weekend with them.
He said such cases were always difficult but banning relocations altogether was not the answer.
But for Stephen it comes back to the raw emotion.
Paul Mason saidTalk to any judicial officer and they will tell you the two most difficult areas to deal in are relocation cases and sexual abuse cases. You can't apply a one-size-fits-all approach to a field of law that involves the court dealing with an infinite variety of human relationships.
* Details have been changed because of restrictions on reporting cases that have been before the Family Court.
Stephen saidI still choke up when I think about the 12 months I didn't see my children and the prospect they could, and may still in the future, be swept interstate or overseas.
She was using every bit of the law that she knew how to stop me from seeing them and it was working for her very fine because every bit of the law caters for what the woman wants and nothing for the man.