by: Caroline Overington
From: The Australian
November 24, 2011 12:00AM
A QUEENSLAND father has been banned from having any contact with his five-year-old daughter until she reaches 18 after the Family Court accepted that the child's mother would "destroy" the relationship rather than agree to shared care.
In a decision that suggests the "shared care" law introduced by the Howard government was effectively dead, a full bench of the Family Court said "the mother would ignore any order for contact" and, as a result, it was pointless to order her to co-operate.
Secretary Shared Parenting Council Wayne Butler saidIt should read …. after the FULL COURT (In other words the appeal court) of the Family Court decided …. However, faced with his findings that continuation of a meaningful relationship with the father would result in ongoing emotional abuse of the child; that alternative forms of order would not work; and that it was not in the childs best interests to live with the father, his Honour decided to terminate contact. In our view not only was that decision open to him, on the basis of his findings it was arguably the only available decision.
Shared care of children after divorce was a policy goal of the previous government, but the law is now being rolled back, with key changes to the Family Law Act (1975) passing through the Senate this week. Under the old law, mothers were sent to prison or lost custody of children when they refused to allow them to have contact with their father. While this is still possible, the full bench of the court has now said that in some cases there is nothing it can do.
The full bench ruled on the matter after a father, known as Mr Summerby, appealed against a 90-page judgment by a Brisbane federal magistrate, Keith Wilson, which effectively ended his relationship with his daughter.
Mr Wilson agreed that the loss of the girl's relationship with her father "would be distressful in the short term and may also be emotionally damaging to her in the long term".
But he ruled that the loss of the child's relationship with her father would be "less harmful than the loss of her relationship with her mother".
The court severed the relationship despite finding that the child "plainly enjoys spending time with her father".
Federal Magistrate Keith Wilson saidThe child's mother would not facilitate a relationship with the father and the child, even for alternate weekends, and will actively try to destroy the relationship even if orders are made.
I wrestled with devising some form of order that would see the child spending time with her father on a periodic basis, with changeovers occurring at some neutral place such as a contact centre
However, I conclude that such a regime would not work
Mr Summerby and his former wife, known in court documents as Ms Cadogen, met in Taiwan in 2002 and have lived in Brisbane since 2005. Each has children from other marriages; the five-year-old girl is their only child together. There were allegations of violence and emotional abuse on both sides. Mr Summerby told the court that he believed that Ms Cadogen's new partner was sexually abusing his daughter; Ms Cadogen said the father was the abusive one.
The father appealed against the decision on nine grounds, including the terrible impact on the child of not being able to speak to him until she was an adult.
FM Wilson saidThe child had a close and loving relationship with her mother and a "good and loving relationship with her father" and concluded that neither the father nor the mother's partner had sexually abused the child.
On the other hand, there was "violence in the relationship between the mother and the father" – each accused the other of violence – and both had "emotionally abused" the child by dragging her into their conflict.
The parents cannot co-parent the child without exposing her to further emotional abuse. The mother will not facilitate or support any relationship between the child and the father.
But in a judgment delivered on October 20 and published last week, the full bench said the magistrate had been "very careful" and appeared to have "agonised" over the decision before deciding that "none of the proposals made for the father to have time with the child would work".
Mr Wilson acknowledged the "termination of the child's relationship with one of her parents is a course of last resort". He said the result was not "satisfying to the court" and he did not want people to think that the decision "demonstrates either an acceptance of the mother's position, or a surrender to her unreasonable refusal to permit a relationship between the child and her father".
But, he said, the hatred between the parents meant that "any form of shared parenting would expose the child to further emotional abuse".
On the final page of its judgment, the full court also made a point of saying "our decision should not be interpreted as condoning the mother's conduct".
Mr Wilson, who has retired from the bench and is now working as a barrister, issued final orders in the case as "the parties have been involved in litigation for almost three years. It ought to be brought to an end."
The only avenue of appeal now is to the High Court.
The "shared care" law was designed to encourage co-operation between parents after divorce, but has been criticised for leaving children vulnerable to violence.
In passing amendments this week that rolled back some elements of shared care, Labor senator Trish Crossin told the chamber the federal government continued to support shared care but "not at the expense of a child's safety".
Liberal senator Brett Mason told the chamber the bill "tips the scale back towards hell".
Refer to the case detail in the cases of interest forum
Secretary of the Shared Parenting Council saidThis is a terrible situation for the deposed father who will have no further contact with his five year old daughter.
The learned justices suggested there was no other alternative as the mother would not comply with orders. Perhaps the mother would have complied had the "lives with Parent status" been reversed and the child to live with the father. The initial contravention hearing found in the fathers favour should have delivered a decisive reprimand to the mother in this case and that appears to have been the start of the slippery slope.
Here is a case where s117AB was a damp squid and had simply no effect. It has now been dispensed with in the new changes. It clearly did not work in 2010 and may as well have been removed.
Perhaps some thought of jail time may have brought sense to the case. It sends a very bleak message to those intractable cases that pontificate a position that provided you maintain a complete intransigence and refuse to cooperate you will be able to wipe the father out of children's lives.
I will be contacting Legal Aid in Queensland to see if there is a possibility of a High Court challenge as this is a despicable situation where both the father and the ICL have wished for contact arrangements.
ABC The World Today
ELEANOR HALL: To that Family Court decision on "shared care" that has stunned the father in the case and is being labelled extreme by some legal experts.
The Family Court banned the father of a five-year-old girl from seeing his daughter until she turns 18, ruling that "shared care" would not work.
The judge said the girl's mother was determined to ignore any court orders and destroy the little girl's relationship with the father.
Family law experts say the decision is extreme because the case itself was extreme.
Adam Harvey has our report.
ADAM HARVEY: The five-year-old Queensland girl has a good relationship with her father, but that has to end now after a decision by the full bench of the Family Court.
After years of litigation, the court ruled that it would be pointless to order shared care of the girl - that's because her mother would refuse to cooperate.
The court says this isn't in the child's best interests and the only solution is to ban contact between father and daughter until she turns 18.
Shared care amendments to the Family Law Act were introduced by the Howard government in 2006.
Jenni Millbank is a professor of law at University of Technology, Sydney.
JENNI MILLBANK: The Family Court has to consider under the legislation the benefit to a child of a meaningful relationship with both parents and they must - if they order shared parental responsibility between the parents - they must also then consider whether or not the child would benefit from so-called equal time or if not equal time, substantial and significant time.
ADAM HARVEY: Sometimes shared care doesn't work.
JENNI MILLBANK: If a parent if violent or abusive or if they have a very serious mental illness or an addiction, if they are not able to prioritise the child's need over their own needs or if there is such extreme conflict between the parents that the benefit of the relationship is outweighed by the destructive impact of the conflict on the child.
ADAM HARVEY: And that's what happened in this case.
Juliette Ford is a director of Canberra law firm Farrar Gesini & Dunn.
JULIETTE FORD: There are a number of extremely fraught issues between the parents. There were allegation of violence between them, there are allegations of abuse in relation to the child, there is evidence of the father's attitude towards the mother, which is negative, and then there is also a lot of evidence as to the mother's attitude towards the father which is also negative.
And the courts have been very careful not to in any way be seen to be complementing, congratulating or condoning the actions and attitudes of each of the parents, and this isn't a case where one should see that the mother has been vindicated in her actions because the court has very much made a decision as to what's in the interests of this little five-year-old, notwithstanding the actions of her mother in this particular case.
ADAM HARVEY: Professor Jenni Millbank.
JENNI MILLBANK: You know, as Tolstoy says, every family is unhappy in its own special way. So there's no such thing really as the death of shared care or a precedent that binds other cases. This sounds like a very, you know, extreme and unusual sets of facts and so you're going to get an unusual judgement.
I think it's very clear that the shared care legislation has set down a pattern of much more shared care. So you can't just say because it didn't happen in this one case that that's, you know, the quotes about the death of shared care I thought were just a bit extreme.
ADAM HARVEY: And parents who simply refuse to deal with each other are playing a high stakes game.
JENNI MILLBANK: There is absolutely that question of kind of thwarting the relationship but that is also a consideration in the legislation so the court has to consider the willingness of each parent to facilitate the relationship of the child with the other parent or with other important people.
So if you just say, you know, it's over and I hate him now so I don't want the child to see him, then one of the possible outcomes is the child will actually go into the primary care of the other parent.
ADAM HARVEY: Juliette Ford says that mostly, the laws have a positive impact.
JULIETTE FORD: What's happened since those amendments is there's been a greater number of cases where people have been spending more time with their children. Some can see that as being a good thing, some may point to some decisions where that necessarily hasn't been a good thing.
But what it has caused people to think about is well, my actions and who I am as a person is going to have some relevance towards what orders somebody makes which is in the best interests of my child and it's not about me and what my rights are, it's about what's appropriate for my children.
And that's really what this case struggled with.
ADAM HARVEY: And there's no disagreement that the real loser in a toxic dispute between parents is the child.
ELEANOR HALL: Adam Harvey with that report.