Don’s Family Law Blog

Adele Horin reports a study commissioned by the Federal Attorney-General about the effect of shared care on children under 4 years old.  It states there is a significant”impact on the emotional and behavioural functioning of this age group”.  

The study’s conclusion should be no surprise to most social scientists and family lawyers.  Dealing with the apparent conflicting aims of the legislation and the developmental needs of infants is a constant challenge for family lawyers.  It’s in many ways not a role for lawyers (or Judges).  I typically refer clients to a child psychologist and invite the other parent to participate.  My hope is that the psychologist will manage the evolution of the relationship of the child with both parents whilst catering for the developmental needs of the child.

As reported in The Australian, Justice Murphy has made orders banning a father from having any form of relationship with his children aged 13,11,10 and 9.

A sad but sensible decision.

The Federal Government is consulting on its proposed plan to extend family law arbitration to include issues relating to the children (reported in the Sydney Morning Herald).  Presently, arbitration is only available in property adjustment cases.

As reported, there appears to be some confusion between mediation and arbitration.  I suspect this will be clarified when we know the detail of the dispute resolution model to be adopted.  It’s a big change and I will not yet make a call as to its merits.

Jo Case writes from the heart about the sharing of ‘custody’ of her son with his father (link).  Jo Case’s support of shared parenting goes against the trend of commentary condemning the institution.  Unlike commentators caught in their ideological straight jacket, Ms Case writes (personally) of the benefit to her and to her son. 

It clearly echos the predominant sentiments passed on to me by mothers.  Their sense of loss is overcome by the realisation that they are, in part, emancipated from motherhood and freed to pursue friendships and career.  It also sensibly recognises that children benefit from the intimate involvement of their fathers.

On 21 April 2010, White J ordered that provided a widow pay the costs associated with storage, an IVF clinic in Brisbane was required to store the gametes (sperm) of her late husband.The Supreme Court has a relatively consistent history of allowing parties (usually widows) to harvest and store in cryogenic conditions the sperm of deceased men. In 2004, Atkinson J gave a similar order in Denman [2004] 2 Qd R 595. Byrne SJA made a similar decision in an unreported case of Ross v. A-G of Queensland (unreported – 3 December 2008)

However, the Court has never ordered that such harvested sperm be utilised for any purpose – be it by insemination, for paternity testing or anything else. In cases that reach back to the High Court decision of Doodeward v. Spence (1908) 6 CLR 406 and, more recently, Chesterman J’s decision in Re: Gray [2001] 2 Qd R 35, the Courts have consistently held that, at common law at least, there is “no property in a deceased body” and, given that no proprietary interests exist, there are no rights which attach. Further, given that it is potentially a crime in Queensland to interfere with a corpse – see section 236 of the Criminal Code – the Courts have been unwilling to allow the use of sperm absent legislation to the contrary.

Consequently, it is critical to understand the distinction. The Court will invariably make an order for the harvest and storage of sperm, but will not (as yet) make any order for its subsequent use.

Importantly, White J’s decision reverses the understood common law and takes the matter a step forward. Although her Honour was not asked to make any order concerning the use of the subject sperm, her Honour held that:

Two recent cases have highlighted the difficulty family law and the courts face when dealing with what has been labelled “parental alienation.” At its highest, the term refers to a set of pathological symptoms where a parent, on an ongoing basis, denigrates or belittles the other parent, or some other significant person in the child’s life, with or (usually) without justification. Dr Richard Gardner, American psychiatrist, first coined the term “parental alienation syndrome” in the 1980s to describe the condition as a psychiatric disorder or disease. Notwithstanding, the broader psychiatric community does not recognise the condition as a disorder or disease but, where found to exist, constitute behaviours consistent with parenting disputes generally. Further, where a child is found to have been alienated from a parent, the subsequent rejection by the child of the parent may have many causes, none of which may be at the hands of the primary carer.

In Irish & Michelle [2009] FamCA 66, Benjamin J found that the subject child’s “relationship with her father [was] being damaged.” The reasons were varied but were predominantly directed at the mother, her reaction to the marriage breakdown, her family, and their encouragement of negativity by the children to their father. His Honour found that it was unclear whether the behaviour was intentional or otherwise, but the evidence clearly demonstrated the mother’s lack of bona fides and that the mother was incapable of repairing the damage caused. His Honour ordered equal shared parental responsibility, but that the children live with the father and spend holiday time with the mother, the parties living in Tasmania and Victoria respectively.

In Wang & Dennison (No 2) [2009] FamCA 1251, Bennett J found that “the court can have little faith that the mother has any genuine willingness or capacity to facilitate and encourage the children’s relationship with the father…The mother’s past actions have decimated the girls’ relationship with the father but they have also had the effect of damaging her own relationship with, and authority over, the girls.” His Honour ordered equal shared parental responsibility, but that the children live with the mother and spend no time with the father.

What, if anything, reconciles these cases?

On a first blush reading, the similarities between the cases are quite stark.

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  • Both parties lived in separate states - Victoria and Tasmania.
  • The children in Irish were 9 and 7, in Wang 11 and 9.
  • There was a high level of parental conflict during and after the breakdown of the relationships.
  • The mothers had made unfounded allegations against the father.
  • Both fathers were in new relationships which had focussed some of the mothers’ behaviours.
  • The parties’ applications in each cases were similar. The parties claimed that the care the other party provided the children was damaging or abusive.
  • In both cases, the ICLs supported the mothers’ cases.
  • In both cases, the children did not want to spend time with the father and had threatened self-harm if forced to do so. All children were incredibly angry at the forensic process for making them reveal their wishes and believed they were not listened to.

A closer reading reveals the distinction. In Wang, the critical section 60CC factor was the wishes of the children. The court found the children to be “articulate, forthright and self-assured adolescents.” In that context, the threat of self-harm if made to spend time with the father must have been a deeply troubling aspect to the family report writers that examined the children and the court. The court concluded that imposing a “solution” on the children without deference to their views would at least compromise their development and, possibly, inspire the threatened self-harm.

In Irish, the assessment of the children’s wishes was quite different. Although the children were intelligent, the expression of their views was too “mature” and their opposition to spending time with the father seemed “orchestrated.” Consequently, the court concluded that if “things continue this way, these children are going to learn that nobody can persuade them to do anything that they choose not to do. All they have to do is refuse to listen and to chant whatever it is they want.” The court’s further opinion was that the children needed professional psychological help, such help only available in the predominant care of the father.

Assuming that parental alienation can occur from a variety of reasons, including the manipulative (even pathological) behaviours of one parent, then whilst the focus, particularly in the US, has been to examine the parent’s behaviour and not the resulting impact on the children, these cases clearly demonstrate that whatsoever the parental alienation, it is its effect on the children that is critical. People may read Wang and be horrified at the apparent injustice. Most of us can at least feel some sympathy for the father. But as children are the focus of parenting law in Australia, not the parents, then decisions like the ones discussed above may continue to be made. Some may argue that the decision in Wang is a court-inspired imprimatur to alienating parents. I would suggest Irish clearly shows that there is no such thing.

For further information on this topic, please contact:
Adam Cooper

Australian men apparently domore parenting than fathers from many other countries, reports Adele Horin in the article “Our dads better than yours: Aussies lead world in parenting“.

But then, just as we dads thought we were getting somewhere, it’s reported “Helpful dads hurt mums’ self-esteem”.

Damned if we do.  Damned if we don’t

The word is out, about a Brisbane family lawyer who provided a drinking bottle full of vodka in his 13 year old’s school lunch box.  Welfare authorities are not investigating as it has been explained that the vodka was ‘contraband’ placed in the refrigerator belonging to an older child.

Would like to have seen the face of the 13 year old on the first swig.

I’ve had no time to blog since my return from holidays.   The papers are full of predictions of changes to parenting arrangements post separation.

My tip -  There will be little change.

There’s plenty of smoke around suggesting the fire has been lit on making amendments to the children’s provisions of the Family Law Act. The pendulum having swung a long way from the continuity of care principle seems to be swinging back that way.

Governments of all persuasions seem very prone to the influence of single issue pressure groups. I hope lawyers are broadly canvassed for their opinions. Solicitors, in particular, are the best placed to make comment as they are the frontline troops. Judges opinions are of course very relevant, but they are limited in their observation by the fact that they tend to see mostly the extreme cases.

Parents and children need to be broadly listened to.

The least relevant participants in this process should be the pressure groups representing women’s and men’s interests. Typically their ideological approach to issues is only marginally interesting.