Recent media reports claim ‘shared care dead’ after the Full Court of the Family Court upheld a decision of His Honour Federal Magistrate Wilson.

The decision made no provision for the father to spend time with the child of the marriage. However, a close reading of the appeal decision makes it clear that there was only one victim in this matter: the young child of this relationship. But “Sometimes in parenting cases it is often between alternatives, both of which are less than optimal” (Federal Magistrate Wilson).

The child and her mother were locked out of the family home by the father sometime in February 2007. What follows is a lengthy and litigious family law dispute about the welfare of this child.

The facts reveal that there are two parents who have both, at times, acted inappropriately and not in their daughter’s best interests.

The father sought court orders to see his daughter a few times a week and on school holidays. Father and child were seeing each other up until such time as the father had the daughter examined at a local hospital alleging that the mother’s new partner had sexually abused her. As the Federal Magistrate described, this had a ‘cataclysmic effect’ on the course of the matter. As a result of the allegation, the mother commenced withholding the child from her father. The father responded by commencing a string of contravention applications against the mother for not complying with the court orders. Matters between the parents could not be resolved and a trial was commenced and abandoned a couple of times.

The Department of Child Safety investigated the abuse allegations and His Honour determined that the child had not been abused. Despite this finding, the father continued to believe the child was being abused and took her to counselling on one of his few visits. On this occasion, the child made further disclosures of abuse, this time against her own father. These events caused the department to take out a child protection order. The department wanted to institute supervised time between the father and child, but the mother was so upset at the prospect, she fled. Visits were eventually resumed after the mother was threatened with arrest, but the child said she didn’t want to spend time with the father.

The crux of this dispute was the father wanting access to his daughter. He did not seek orders that she live with him, but he did want to be involved in his daughter’s life. The dispute became protracted and insurmountable when the mother refused to allow the access and to foster any relationship between the father and the child. This resulted in a child caught in the middle of a fight between her parents and being potentially subject to emotional and other forms of psychological abuse from each parent.

As is often the case with contentious children’s cases, a lawyer was appointed to represent the child and experts such as a psychiatrist and a family consultant provided reports to assist the court. The children’s lawyer supported the father in spending time with the child, and that every effort should be made to make the mother comply with an order to that effect.

The decision made by the Magistrate was a most unusual one, made all the more difficult by the evidence that showed the child had a close and loving relationship with her father. Despite this bond, no expert recommended that the child should live with the father. That would only upset the balance of what the child had always known, that is to live with her mother, who was, and had always been, her primary carer.

The Family Law Act 1975 provides a ‘pathway’ to making decisions that are in a child’s best interests. Section 60CC sets out criteria for such interests, which are then applied to the questions of whether parents should spend equal time or substantial and significant time with a child; and finally whether those arrangements are practicable.

The objective of the Act is that it is beneficial for a child to have a close and loving relationship with both parents. However, each case must turn on its own facts and this is one such exception.

Federal Magistrate Wilson ruled, in a 90 page judgment, that the child should live with the mother and the mother be solely responsible for her. No provision was made for the father to spend time with the child. In the end His Honour was called to weigh up the facts and make a decision about what would ultimately be in this child’s best interests.

It is prudent to quote His Honour in full:

I have wrestled with devising some form of order that would see the child spend 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 and in fact would inflict further emotional harm on the child. I reach that conclusion also cognisant of the fact that if the mother defies such orders, as she has stated she will do, the option of changing the child’s residential parent is not a viable one. I have reached that conclusion because interim orders have been made on a fairly regular basis over the past almost three years and they have proved troublesome. Whenever one parent has the opportunity of criticising the other they do so and have run to the court for assistance. Most recently, the mother has demonstrated most emphatically that she was not supportive of the child having any relationship with her father. If orders were made that compel the mother to deliver the child to a contact centre to spend time with the father either on a supervised or unsupervised basis, I am convinced that the child would not attend such visits as has happened on repeated occasions during the past six or seven months.

More importantly he goes on to say:

I am cognisant that the termination of a child’s relationship with one of her parents is a course of last resort. This outcome is neither satisfying to the court nor edifying of either party. However, when the child’s best interests are the focus, rather than the expectations or hopes of either parent, the conclusion reached is inevitable. It may be thought that the result arrived at 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. Neither of those conclusions is correct. Once it is accepted, as I do, that it is not in the child’s best interests to live primarily with her father; and that because of the antipathy between the parents any form of shared parenting would expose the child to further emotional abuse, the court is really left with no alternative but to make the orders that I propose. The orders should not be seen as any vindication of the mother’s actions.

The father’s challenge to the decision on appeal to the Full Court of the Family Court was dismissed.

This was never a shared parenting case. The father did not seek such an order (he did briefly during the trial, but later abandoned the idea). Despite many interest groups in the community wishing the amendments to the Family Law Act would peel away the prospect (or scope) of shared care, it remains an issue unless the presumption of shared parental responsibility is rebutted and the circumstances warrant a different care arrangement.

Parents in the family court system should not look at this decision as a win for either parent. The court will continue to shun parents who alienate and ostracise relationships with the other parent. Think of the best interests of the child and determine your actions based on this guiding principle.

For further information or family law advice contact family@whd.com.au or call 07 3232 5700.