By Gianna Huesch
An article in The Australian has explored the outcome of a recent case in the family court, wherein custody of two children was abruptly switched from their mother to their father. The original trial was heard in 2015 and the appeal, which upheld the trial judge’s orders, was heard in September this year.
The children had been living with their mother since birth and their father had been granted access under orders, but the mother had failed to facilitate the contact and had eventually terminated contact with the father completely. The court has now put in place orders whereby the children live with their father and may only have supervised contact with their mother once a fortnight in a contact centre.
The Australian’s article asks, “what did the mother do to provoke such a change in circumstances?”, noting that the mother had by all accounts been a good mother who had not neglected or abused her children. As it turns out, what she had done was failed to “encourage a relationship between them and their father and, as far as the Family Court is concerned, that was putting their psychological development at serious risk”.
Against the risk of fracturing the children’s relationship with their mother through the order, the judge said that “it also seems to me that the relationship with the mother would ultimately be fostered in the father’s household”, the opposite of what was occurring in the mother’s home.
Calling it a “bitter lesson in sharing the kids with dad”, the article notes this case is an example of how different the family law landscape is now to how it was before former prime minister John Howard introduced the controversial “shared care” provisions via the Family Law Amendment (Shared Parental Responsibility) Act 2006 a decade ago.
The shared care provisions mean that judges have to operate from the presumption that it’s in the children’s best interests to have a meaningful relationship with both parents, barring circumstances involving family violence, neglect or abuse. It’s thought that the outcome of family law matters has improved fairness for fathers since then; in any case, it’s clear that there is no automatic bias in favour of mothers in situations such as this.
A parent’s anger, hatred or resentment towards their ex-partner can unfortunately sometimes interfere in children’s ability to have a loving and meaningful relationship with their other parent. In this case, the judge said the children’s “attitudes to their father is reflective of what they see as their mother’s attitude and what they see as being the appropriate attitude to have to the father in light of their mother’s presentation”.
This case is not unique: over the years, numerous matters have been heard in the courts where residence has been switched from one parent with primary custody to the other, often in cases where the court has similarly found there to be parental alienating behaviours to the detriment of the children.
In this case, one of the children was refusing to see the father, but the court found that expert evidence indicated that this was more of a case of a child wishing to please one parent, than being based on any real fear of spending time with the other. Despite his genuine efforts to build a relationship with the children, the father found it difficult:
“Part of the problem was the way [the mother] reacted when her ex-husband called the house, making it plain to the children that she didn’t like him; and also her habit of accepting invitations to school birthday parties on “dad’s weekends” and then asking them to choose what they’d rather do.”
An incident of violence alleged by the mother was investigated by police who found no evidence that it had occurred. Extensive mediation took place but in the end, the mother was so entrenched in her negative views about the father that it was inevitable the court would have to intervene.
The family consultant reported observing that the boy would initiate conversations and affection with his father, but that he was being “exposed to a narrative that doesn’t really allow him to see meaning in a relationship with the father”. The consultant noted that when the mother was asked the question “‘is there any value for a relationship with their father?’, she very clearly said there is not.” The judge consequently expressed reservations about the mother’s “capacity to separate out her own needs from her children and her capacity to maintain perspective and objectivity” in the situation.
The case serves as a useful reminder of the need to co-parent in a manner that does not impact negatively on the child, no matter how much acrimony there is between the adults. It’s also vital to follow court orders regarding shared parenting to the letter, and not unilaterally withhold contact.
Do you need assistance with a parenting matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 to arrange a cost-free, no-obligation initial consultation.
You can read the judgment here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/182.html
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.
