2 April 2009
Fathers fight back
By Caroline Overington
It was once widely assumed that children were better off with their mothers, especially after divorce. In part, that was because mothers did most of the child-rearing. They got pregnant, gave birth and did most of the heavy lifting - nappy changes, toilet-training and school pick-ups - as the children got older.
The role played by fathers, for many years, was assumed to be mainly financial: he was the breadwinner and often the person who provided the discipline.
Things have changed. This week, The Australian reported on an extraordinary Family Court decision - in the sense that it was completely out of the ordinary - to remove two children who had been living with their mother in Tasmania since their parents separated in 2005 and send them to live with their father and his girlfriend in Melbourne. There was no suggestion of physical abuse or neglect in the case known as Irish and Michelle (2009).
The facts are this: The couple separated in 2005; the father met a woman and moved to Melbourne to be with her in 2006; his children (a daughter, then aged six, and a son, then four) stayed with their mother in a Tasmanian country town. The mother - known in court documents as Ms Michelle - reorganised her working day so she could spend more time with the children. She had a limited income (less than $500 a week) but the father didn't earn much more (he works as a firefighter and makes about $50,000 a year, minus child support for two children).
The mother has a house with a front garden and a back yard for the children to play, and they live next door to their grandparents, who help out. Her father is a well-known, successful Tasmanian businessman.
The children's father - known in court documents as Mr Irish - works shifts: four days on, four days off, and often through the night. He has always had access to his children, but recently the change-overs had become difficult. He would turn up in Tasmania to take the children for holidays, and they would say: "I don't want to go" or "I don't have to go". On one occasion, witnessed by a child psychologist, the girl tried to climb out of his car window rather than go with him for a weekend. The father believed his relationship with the children was being eroded, that his daughter, now nine, was becoming estranged from him, and that their mother was responsible for these problems. He took the case to the Family Court and, to the utter shock and devastation of the mother, who has been the primary carer of the children all their lives, he won.
Justice Robert Benjamin accepted the court-appointed lawyer's evidence that "both children have consistently maintained that they wish to continue living with their mother".
"They have a close and intimate relationship with the mother and want to be with her," the psychologist said. "They identify their mother as their primary emotional support. As much as the children enjoy spending time with their father, both the children verbalised that they become distressed and miss their mother when they are separated from her."
But he also believed that the girl, in particular, did not understand how important it would be, in later life, to have a relationship with her father.
He said the child, known as B, was becoming emotionally estranged from her father and "either suffered, or was at risk of suffering, serious psychological damage if not psychiatric damage" if the mother didn't encourage her to have a relationship with her father.
There was nothing in the judgment to suggest the mother had denigrated the father, only that she hadn't encouraged a good relationship between the children and their father. The girl told her court counsellor that she didn't like that her father had left the family and now had a new girlfriend, whom she didn't like either.
But Benjamin made the decision to move the children with amendments to the Family Law Act in mind. These amendments, colloquially known as the "shared parenting" provisions, were introduced by the Howard government in 2006. They say that children "have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never been married or have never lived together".
Children also have a "right to spend time on a regular basis with, and communicate on a regular basis with, both their parents".
The case of Irish and Michelle suggests that mothers must now encourage their children to have a good relationship with the father; they must facilitate access; and they aren't allowed to talk down the father. If they do, the children will be removed from their full-time care.
Wayne Butler, president of the Shared Parenting Council of Australia, established in 2002 by fathers frustrated at the perceived bias of the Family Court, says the decision "has given us hope. There's a feeling now that if you want a substantial amount of contact with your children, you should wait and go to the Family Court because there is a good chance you'll get it. We strongly believe that children need a relationship with their father. There's a whole change in society's view of a father and that's being reflected in the Family Court."
That view isn't being encouraged by Family Court Chief Justice Diana Bryant, who told The Australian yesterday that Irish and Michelle shouldn't be read "as a marker for anything". "I've read the judgment closely and it seems to me that the judge took into account what the experts said, which is that the children, especially the girl, were at risk of psychological harm if they stayed with their mother. Some people won't agree with the decision." She noted that the mother could appeal within 30 days. Bryant promotes a view of the court as bias-free and transparent. She authorised the release of data on court orders made since the Family Law Amendment (Shared Parenting) Act came into force. The data isn't comparative - that is, it doesn't say whether fathers are now likelier to get access than they were before the amendments - but the Shared Parenting Council's Jim Carter says the data is nevertheless "encouraging for fathers and their children" because it shows that fathers are likelier to get substantial access to their children if they go to the Family Court than if they negotiate directly with their former wives.
"The situation since 2006 is that 17 per cent of fathers were granted primary care of their children and another 15 per cent were granted equal parenting time," Carter says. "That's a total of 32 per cent of fathers in litigated cases (getting substantial access)."
Mothers still get the bulk of the orders in their favour - 60 per cent get primary care of their children - but the Shared Parenting Council suggests that fathers who want "substantial access" to their children after divorce go to court because there is a reasonable chance they'll get it.
At a Senate estimates hearing on February 23, Family First senator Steve Fielding asked the chief executive of the Family Court, Richard Foster, about the amendments and he, too, was told there had been "a change in the orders that impact specifically on fathers".
Bryant says the data shows that fathers were given residence (or full-time custody) of the children in 19 per cent of litigated cases in 1999-2000, compared with 17 per cent of cases after 2006, "so that's actually gone down".
"We can speculate as to why. I think what's happened is that, rightly or wrongly, there was a prevailing view that orders were likely to favour mothers, and fathers would only litigate when they thought they had a good case," Bryant says. "It's possible that view has changed, so more (men) might litigate."
The number of orders for shared parenting is certainly up, from 6 per cent to 15 per cent, which means fathers get at least equal access in 32 per cent of the cases.
Women's groups are worried about the perceived new direction of the court. An online petition, started last month, has gathered 2,300 signatures, and a coalition of women's groups will host rallies in all states next month, to highlight the plight of women whose children have been killed by their ex-partners on access visits. Victims of crime will speak, wearing red hoods over their faces, to circumvent laws that make it a crime to identify any party to a Family Court matter. Organiser Barbara Biggs says: "Our speakers have children who were killed after bad Family Court decisions. Some of them are very well known, with the cases all over the media already, but they can't be identified because that's a breach of the Family Law Act."
On publishing the Irish and Michelle story, The Australian received many calls from fathers who intend to try the Family Court system again. One such father, who hasn't seen his 12-year-old girl for two years, despite there being a Family Court order for access in place, says: "I'm supposed to see her this Easter but the orders were made in her absence. (The mother) doesn't show up for court. She doesn't acknowledge the orders. She has changed her telephone number so she can't be reached."
The couple separated when the child was five. "For a few years after that, I got good access. That changed when I got remarried. It dwindled away to nothing. When I read that case (Irish and Michelle) I thought: 'That's exactly what happened to me.' My daughter started to say: 'I don't want to see you' and 'I hate you', and of course that's not the case. We had a good relationship. I would try to speak to her on the phone and maybe I'd get her when her mother was in the shower, but she'd say: 'I can't talk to you. I've got to go."'
At the other extreme are women such as Kelly, a mother and a lawyer from Queensland, who was amazed when the court ordered a 50-50 custody arrangement with her ex-partner even though he'd been convicted of assaulting her.
"The lawyers kept saying: 'It has to be 50-50,"' she says. "He assaulted me when I was holding (the baby), but they say that's not the same as assaulting the baby, so the court says he isn't hurting the child. They said I had no choice under the new laws to hand the baby over one week on, one week off."