One mother’s bit­ter les­son in shar­ing the kids with dad

It is rarely OK to block your child’s re­la­tion­ship with the other par­ent

The Weekend Australian - - INQUIRER - CARO­LINE OVERINGTON AS­SO­CI­ATE EDI­TOR

This was not one of those cases where the chil­dren had been abused and ne­glected, and there­fore had to be re­moved from their mum’s care for their phys­i­cal safety. She loved them very much and she made sure they were well fed and at­tend­ing good schools, yet they now live, by court or­der, with their dad and can see her only once a fort­night, su­per­vised, in a child con­tact cen­tre.

What did the mother do to pro­voke such a change in cir­cum­stances?

As the Fam­ily Court noted, she didn’t beat or starve her chil­dren, but nei­ther did she 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.

“This mat­ter is plainly ur­gent,” judge Grant Ri­eth­muller said as he con­sid­ered the case. Forc­ing the chil­dren to live with their fa­ther could leave them “dev­as­tated” in the short term be­cause they barely knew him, but to leave them in her care “would ef­fec­tively re­move the fa­ther from their lives”.

The judge was not pre­pared to do that. The stakes are con­sid­ered too high. And so, un­der the “shared care” pro­vi­sions of the Fam­ily Law Act, brought in by the Howard govern­ment in 2006, he there and then switched the chil­dren’s res­i­dence from mum to dad with­out so much as a week­end’s good­bye.

“This case shows ex­actly how far we’ve come in 10 years,” says fam­ily law ex­pert Stephen Page. “We’ve moved from dad get­ting one week­end a fort­night and half the school hol­i­days, if he was lucky, to a sit­u­a­tion where you re­ally have to tell the mum — and I’m not say­ing this is a prob­lem only for mums — look, if you don’t sup­port them see­ing their dad, no mat­ter how much you hate him or how bit­ter you feel, they will be taken off you be­cause this is not about you. This is about the kids.”

Les Stubbs, di­rec­tor of fam­ily law spe­cial­ist firm Har­ris Freidman, agrees, say­ing: “It’s hard to be­lieve but we do still see par­ents who say, ‘They’re my kids.’ Not ‘our kids’ but ‘my kids’, and when that hap­pens the court will have no hes­i­ta­tion in mov­ing them. It’s not about pun­ish­ing the mother. It’s about the rights of the child to know both of their par­ents.”

The Fam­ily Law Amend­ment (Shared Parental Re­spon­si­bil­ity) Act 2006 was in­tro­duced by the Howard govern­ment in con­tro­ver­sial cir­cum­stances. Crit­ics com­plained that prime min­is­ter John Howard was in thrall to men’s rights groups, which had com­plained for years about the Fam­ily Court’s per­ceived bias against fa­thers. Sup­port­ers said it would tip the bal­ance to­wards dads who had been pay­ing hefty main­te­nance — or not — for chil­dren who had been turned against them.

The law has been in ef­fect for a lit­tle more than a decade and it re­mains the most rad­i­cal change to Aus­tralia’s fam­ily law since the orig­i­nal act was de­vised by the Whit­lam govern­ment in 1975. Un­der its pro­vi­sions, when mak­ing a par­ent­ing or­der, the court must ap­ply a pre­sump­tion that it is in the child’s best in­ter­ests to have a re­la­tion­ship with both par­ents, ex­cept in ex­cep­tional cir­cum­stances such as where there has been sex­ual abuse or vi­o­lence.

The idea was to en­cour­age par­ents to co-op­er­ate on child-rear­ing in the hope that this would lead to less ac­ri­mo­nious dis­putes, which are spir­i­tu­ally and fi­nan­cially costly for all par­ties and af­fect a child’s right to know and love both mum and dad.

The law en­ables the Fam­ily Court to take rad­i­cal ac­tion, and the re­cent case known as Ral­ton and Ral­ton, sum­marised above, pro­vides what may be the stark­est ex­am­ple of how the sys­tem now works.

Mrs Ral­ton was three days into the five-day hear­ing when the re­al­ity of the sit­u­a­tion dawned on her. “I could have my chil­dren taken off me?” she asked, and that is what hap­pened.

The court heard that Mr and Mrs Ral­ton — not their real names — had “a rel­a­tively brief re­la­tion­ship” that started in 2005 and was com­pletely over by 2009. Their two chil­dren — a son and daugh­ter — were aged three and one when they split, and they stayed liv­ing with their mum.

Court records sug­gest the two house­holds were very dif­fer­ent. Mrs Ral­ton was de­scribed as “in­tense” about par­ent­ing mat­ters. She or­gan­ised a lot of ex­tracur­ric­u­lar ac­tiv­i­ties for the chil­dren, such as sport and birth­day par­ties, and she let them sleep in her bed when they were dis­tressed. Mr Ral­ton was de­scribed as “a phys­i­cally large man” and “cer­tainly some would find him im­pos­ing, and the mother cer­tainly feels that way about him now”. He works in a trade and used colour­ful lan­guage at home, such as telling the kids “I’ll cut your fin­gers off” if they put their hands in the bis­cuit tin.

Mr Ral­ton told the court he wanted to have a re­la­tion­ship with his chil­dren even af­ter he split from his wife, but ev­ery­thing he did — such as the time he got them to play un­der the sprin­kler on a cold day — seemed to be taken the wrong way. He didn’t go to court to try to get them to come and live with him. He’s in a new re­la­tion­ship and has a new fam­ily, so he was happy, as he put it, be­ing a “Dis­ney dad”, al­beit with a bit more “rough and tum­ble” than the chil­dren were used to at mum’s house.

But he couldn’t make a con­tact reg­i­men work: he would call the house and the chil­dren — in par­tic­u­lar the boy, who was de­scribed as a “sen­si­tive child” — wouldn’t come to the phone, or else Mr Ral­ton would go to pick the chil­dren up for his week­end vis­its and their mum would have taken them to a birth­day party in­stead.

A coun­sel­lor was as­signed to the fam­ily to try to help the par­ents work it out, but overnight time kept break­ing down and, de­spite court or­ders, there was no con­tact be­tween the dad and his chil­dren on Fa­ther’s Day 2015 or Christ­mas Day 2015. Then in Fe­bru­ary last year the boy — who is now 10 — ran away from school af­ter telling teach­ers his fa­ther had as­saulted him. He called triple 0, and while he was “very po­lite and very calm” on the phone with po­lice, he sim­ply said he would not go with his dad be­cause he was fright­ened.

Po­lice in­ves­ti­gated but found no ev­i­dence that the dad had as­saulted the chil­dren. He’d roughly rubbed his head, maybe out of frus­tra­tion.

The court called the fam­ily to­gether for yet more me­di­a­tion but the boy re­fused to take part, kick­ing and scream­ing when he was told he had to have a su­per­vised visit with his dad. Two psy­chol­o­gists stepped in and both con­cluded that the boy was “not free” of the mother’s views about her ex. By the time the fi­nal court date came around, the boy was so up­set that po­lice had to ac­com­pany him into “a safe and con­tained en­vi­ron­ment” within the court­house be­cause he didn’t want to go in­side.

“It is against this back­ground,” Ri­eth­muller said, “that a de­ci­sion must be made.”

The court heard that while the cou­ple’s daugh­ter, who is eight, had al­ways been pretty happy to see her fa­ther, the boy had be­come “strongly re­sis­tant to spend­ing time” with him and, across time, the girl also started wa­ver­ing. Part of the prob­lem was the way Mrs Ral­ton 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.

The judge con­sid­ered all the ev­i­dence, and the mag­ni­tude of the de­ci­sion clearly weighed on him: if he moved the chil­dren, they would be “dev­as­tated” since their only real re­la­tion­ship was with their mother, yet they were also en­ti­tled to know and love their fa­ther.

“This is an out­stand­ing ex­am­ple of a child who is in dis­tress,” he said. “A nine-year-old who will not even come into the court build­ing.”

If he moved the chil­dren, there would be “con­sid­er­able griev­ing in the short term for the loss of the mother” be­cause “the fa­ther has not been the pri­mary carer. He does not have a par­tic­u­larly strong re­la­tion­ship with them” but “liv­ing with the mother was a very un­healthy re­la­tion­ship for the chil­dren to be de­vel­op­ing in”.

So he made or­ders that to the mother seemed in­con­ceiv­able: the chil­dren were, from that date for­ward, to live with the fa­ther, who would be per­mit­ted to en­rol the chil­dren in a new school closer to his own home, ef­fec­tive im­me­di­ately. A coun­sel­lor would be called to court “to tell the chil­dren the out­come of this case, and the rea­sons for it”, and the coun­sel­lor would de­cide “whether or not a farewell can oc­cur”.

There would be no con­tact with the mother at all for six months ex­cept for two hours on her daugh­ter’s birth­day and for four hours on Christ­mas Day, all of it su­per­vised. Even­tu­ally her time with the chil­dren would in­crease to two hours a fort­night, su­per­vised at the con­tact cen­tre, and, pro­vided all went well, in time she would be able to see them ev­ery other week­end and dur­ing the school hol­i­days, but they will prob­a­bly never live with her again.

Stubbs says the case “ap­pears harsh but only for peo­ple who don’t un­der­stand the law. They don’t be­lieve the judge will move the chil­dren be­cause they are fix­ated on the idea of ‘my chil­dren, my chil­dren’. They say, ‘I had them, I raised them, I take them to school, I feed them. And if you say, ‘Yes, but that is be­cause you don’t al­low the other par­ent to do it,’ they say, ‘That’s be­cause I’m the bet­ter par­ent.’ ”

Page says the amend­ments have en­cour­aged some par­ents to me­di­ate and even­tu­ally co-op­er­ate in ways that the sep­a­rated fa­thers of the past cen­tury would prob­a­bly envy.

“I once acted for mum in a case where there had been no con­tact be­tween the child and the dad for three years, and the mum was quite rigid in her think­ing, and the out­come was no sur­prise to me. The judge changed their res­i­dence,” he says. “The chil­dren went to live with the dad and it was all very trau­matic, but the dad very quickly agreed to al­ter­nate week­ends and even­tu­ally they were do­ing equal time, so it did work.

“One good thing about the changes, which ev­ery­one for­gets, was they also brought in com­pul­sory me­di­a­tion, and the re­la­tion­ship cen­tres (es­tab­lished as part of the shared care reg­i­men) try to ed­u­cate par­ents about the im­pact on a child, so they are child-fo­cused and not fo­cused on them­selves be­fore it gets to court.

“But the prob­lem is, you’re still deal­ing with hu­man na­ture. Peo­ple are hurt, and if they can­not mask their con­duct it washes over the chil­dren like a tsunami, and the courts are right: chil­dren can drown in this stuff.”

‘They don’t be­lieve the judge will move the chil­dren be­cause they are fix­ated on the idea of “my chil­dren, my chil­dren” ’ LES STUBBS DI­REC­TOR OF FAM­ILY LAW SPE­CIAL­IST FIRM HAR­RIS FREIDMAN

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