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Family law unable to back mum on new life

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relocationA CHILD’S right to a meaningful relationship with his or her father trumps a woman’s right to pursue personal happiness after divorce, according to the latest ruling on the matter by a Family Court magistrate. 

In a judgment handed down in Melbourne, federal magistrate Evelyn Bender acknowledged that some women feel compelled to “start fresh” after divorce by leaving town, with the children.

Until recently, they had mostly been allowed to go their way, on the grounds that happy mothers meant happy children.

However, the shared parenting law, brought in by the Howard government in 2006, shifted the pendulum toward a child’s right to have the father involved in all aspects of life, including weekday meals, weekend sports, overnight stays and parent-teacher nights.

The shared parenting law is the subject of a government review.

In the most recent case, known as Bachman and Bachman, the wife, aged 25, tried to get permission to move to a town 100km away from the home she had shared with her former husband, taking their sons, aged six and two, with her.

The court banned the move, saying the woman could not move beyond a 30-40km radius of her former husband’s home with the children.

The couple had separated after the wife contracted gonorrhoea from her husband after he returned from a business trip to Indonesia.

The court accepted that the wife was unhappy and lonely in the Victorian town where she lived, which was badly damaged in the Black Saturday bushfires.

The husband told the court he “wished to be involved in all aspects of the boys’ lives” during the week, including Auskick, and that was not possible if his former wife moved more than 30km away.

Ms Bender said she accepted that the wife was unhappy in the town and “genuinely believes the move will provide a more positive and fulfilling life”.

However, the law was clear that the child’s welfare had priority, she said.

Mother’s legal fight to be only ’mum’

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family court disputeAN Adelaide mother went to court to prevent her daughter from referring to her ex-husband’s new wife as “Mum” or “Mummy” or “my other Mummy”.

‘The woman, who cannot be named, argued that her ex-husband was deliberately undermining her role as their child’s mother, by encouraging his new wife to answer to the terms “Mum” and “Mummy” and “Mummy-D” (D being the first letter of the stepmother’s first name.)

The battle has been going on for almost as long as the child has been able to speak. Her parents separated when she was four months old.

The Family Court case sets a precedent for Australia’s million-strong blended families, where arguments over who is to be called what are commonplace.

In the Adelaide case, the mother, known in court documents as Ms Klement, argued that the stepmother should not be permitted to refer to herself “as a motherly figure”.

By consent, her ex-husband agreed that his new wife should not be “Mum or “Mummy” but thought “Mummy-D” was fine.

The mother said the father was “attempting to replace her as the child’s mother by encouraging the child to call his new wife “Mum”. She said the new wife would sign the child’s school notes “Mum” and take the child to medical appointments, where she “presented herself as the mother”.

Ms Klement was “adamant that the child should only call her Mum” or any variation of “Mum”.

The stepmother rejects the accusation that she presents herself as the child’s mother.

The court declined to make an order that the child not refer to her stepmother as “Mummy-D” in part because the judge was concerned that such an order would lead to further litigation “where it would be up to the court to determine whether the father had breached the order in relation to encouraging the child to use the term Mummy-D”.

The court also expressed hope that the child would grow out of “Mummy-D” and begin calling her stepmother by her first name.

It was the only dispute between the separated couple.

All other matters, including where the child should live and go to school, and how much child support should be paid, had been settled in pre-court mediation, after more than six years of litigation.

The parents have a shared care arrangement.

Secret web of sorrow when parents move on

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online-romancesAN EXPLOSION in online romances is making the toughest Family Court issue even tougher, with more divorcees than ever wanting to move their children interstate or overseas to be with a new partner.

A world-first study of 80 parents involved in relocation disputes shows online dating is having a devastating impact on already-broken homes, putting an average distance of 1646 kilometres between children and the parent left behind.

Parents are being bankrupted, selling their homes, losing contact with their children or travelling long distances only to have visitation rights denied.

The average legal cost for settled divorces is $50,000, and $75,000 for court cases.

Results of the study suggest some parents are not upfront about new relationships when they go to court asking to relocate their children.

University of Sydney researchers have been following 40 men and 40 women involved in 71 relocation cases since 2006. They say the growth of internet romances is combining with a rise in broken relationships, increases in international mobility and the tyranny of distances in Australia to make relocation a more vexed issue than ever.

”Internet-based introduction services have radically increased the opportunities for separated parents to meet new people, and the connections thus formed are supported by very cheap modes of communication such as email, internet ‘chat’ programs, and web-based telephone or video communication,” Professor Patrick Parkinson, Associate Professor Judy Cashmore and Judi Single wrote in an article for US journal Family Law Quarterly.

While less than a quarter of women surveyed said they wanted to move due to a new relationship, about a third of men believed it was a factor in their ex-partner’s decision. ”The fathers’ accounts indicated the possibility that in certain cases the existence of a new partner might not have been disclosed to the court,” the authors wrote.

The legal costs of relocating often reached hundreds of thousands of dollars and the costs of maintaining contact with children were as much as $15,000 a year.

This led the authors to urge lawyers and judges to test if the moves were realistic before encouraging them.

Relocation disputes are ”the San Andreas fault of family law”, according to former Family Court judge Richard Chisholm. They are the most difficult decisions judges must make.

The disputes end in expensive court cases more than any other family law matter, with 59 per cent decided by a judge (four times the general rate). And it is almost always the mother who wants to move, making gender a major issue in the debate.

A High Court decision last week swung the pendulum slightly back in favour of parents wanting to relocate.

In a high-profile case code-named ”Rosa v Rosa”, a mother had been forced to remain in a Queensland caravan park, depressed and living on welfare payments, after she moved there from Sydney for her husband’s mining career and they separated. The High Court said the decision was wrong and ordered a fresh hearing.

Judges will have to ask whether an arrangement is ”practicable” before they can make orders for equal time in future.

About 23,000 divorces, half involving children, are granted in Australia each year.

High Court rejects shared parenting plan

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high-courtA court order requiring a Sydney mother and Mount Isa father to share parenting of their seven-year-old might have been in the child’s best interests, but it just wasn’t feasible, the High Court has ruled.

High Court judges said the Federal Court magistrate who made the original order should have considered whether it was actually practicable for the daughter to spend equal time or even substantial time with each parent.

The High Court initially handed down its decision in December but only released its reasons on Wednesday.

The court heard the couple lived together in Sydney from 1993 until 2007, and their daughter had been born in August 2002.

In January 2007 the family moved to Mount Isa to allow the husband to gain work experience.

The parents separated in August 2007, with the mother and daughter returning to Sydney. But three months later they returned to Mount Isa in accordance with interim orders sought by the father and made by the Federal Magistrates Court.

Final orders, made in April 2008, gave the parents equal shared responsibility for their daughter and directed that she spend equal time with each parent on the basis that both would live in Mount Isa.

The Full Court of the Family Court dismissed the mother’s appeal, but the High Court took a different view.

Judges noted that the legislation stipulated that a child’s best interests were to be the paramount consideration in parenting orders, with a presumption that this could be best achieved by parents sharing responsibility.

However, that presumption could be rebutted, with the legislation also requiring consideration of the parents’ circumstances, particularly the mother.

In this case, the mother was living in a caravan park and relying on welfare payments and income from casual work, with her daughter staying with her every second week.

The mother was also suffering depression from her poor living conditions, lack of employment opportunities and isolation from her family in Sydney.

The High Court judges said the federal magistrate addressed only the question of whether it was in the child’s best interests for her to spend equal time with each parent.

He made no assessment of whether spending equal time with each parent was actually feasible, they said.

“Had consideration been given to the question, only one conclusion could have been reached, one which did not permit the making of the order,” they said.

The case was sent back to the Federal Magistrates Court to be reheard.

Spouses to get estates when partners leave will

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Last Will and TestamentSPOUSES will automatically inherit the estates of their partners when they do not leave a will, under new laws that come into force in NSW today.

Previously, estates of people who died intestate were distributed between spouses and their children.

Under the new laws, children will not be automatically included in the inheritance unless they are from a previous relationship.

NSW Attorney-General John Hatzistergos said the new laws made the administration of an estate much simpler in the case of a person without a will who died leaving a spouse or partner and children of the relationship.

“When people die without leaving a will, there is the potential for emotionally charged disputes and legal action as relatives fight over the estate,” Mr Hatzistergos said.

“To defuse disputes and simplify the process of dividing an estate, it is important that intestacy laws accurately reflect community attitudes with regard to who should benefit.

“The overriding message here is – avoid any confusion and get a will.”

Mr Hatzistergos said under other changes to intestacy laws, cousins will be recognised as eligible heirs to the estates of people who die intestate.

The entitlements of first cousins would come in order of importance after spouses and children; parents; siblings; grandparents; aunts and uncles.

“The new law will widen the pool of people who can inherit in NSW and recognises that some other jurisdictions in Australia include first cousins in the distribution list under intestacy laws.”

Estates of people in these circumstances would have previously gone to the Crown.

Intestacy is the default method of distributing someone’s estate in the event of a person not having a valid will in place.

The NSW Trustee and Guardians 2009 Omnibus Newspoll Survey showed 46 per cent of people do not have a will.

Protect children and the mediation process

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childrenTo limit harm, family law reform must proceed carefully.

SUCH are the sensitivities of family law that when the Howard government amended the Family Law Act in 2006 it provided for a review after two years. The Rudd government has its own concerns; even before the Institute of Family Studies finished the review, Attorney-General Robert McClelland asked former family court judge Richard Chisholm to look at whether the law offers adequate protection from family violence. These reviews, and a third by the Family Law Council, reported last month. This week, the head of the Family Court made a strong call for change.

Chief Justice Diana Bryant told The Age that family law courts could not be adequately informed of risks of harm. She wants information from mediation between separating couples to be made available to courts if there is evidence, for example, of violence or abuse, or issues of mental health or drug and alcohol abuse. ”Every decision that is ever made by a judge is only as good as the information and the evidence you can make it on,” she said.

The Law Institute of Victoria agrees that courts, which are meant to act in the best interests of children, are ”blind-sided” by insufficient information. All separating couples are required to go to a family relationship centre or mediation service. Only if that fails do they go to court. If mediators believe violence or abuse is an issue, they can inform child protection authorities or the police, but not the court in a subsequent hearing, because mediation discussions are privileged. Justice Bryant says most information would be confidential, but wants courts alerted to risks ”that need to be dealt with as a matter of urgency”.

The problem is that neutrality is vital for mediators’ work. And without guaranteed confidentiality, mediation becomes a less attractive option. Mr McClelland has asked the National Alternative Dispute Resolution Advisory Council for advice on how to protect the integrity of mediation.

The Institute of Family Studies report offers a valuable reminder that the majority benefits from mediation. Its review involved more than 28,000 people, including 15,000 parents. Family relationship centres had been a success, its report found, and a clear majority of parents said mediation worked well. Only about 1000 contested cases proceeded to the Family Court.

The review did find about one in five parents had safety concerns, especially about shared care with violent partners. The Family Law Council report said the 2006 laws narrowed the definition of violence and recommended changes to include economically or psychologically abusive behaviour.

Professor Chisholm found women and children had been put at greater risk and recommended the scrapping of two provisions. First, under the so-called ”friendly parent” provision, a person who is hostile to a former partner and resists handing over children can be deemed ”unfriendly” and risk getting less care time. Second, a parent who makes unproven allegations of violence can be ordered to pay some or all of the other party’s costs. Justice Bryant shares the view that this can dissuade parents from raising issues of violence or abuse.

Mr McClelland indicated last July where he stood when he said ”too many families … slip through the safety net”. He asked the Chisholm review to take particular note of the case of a four-year-old who died after a fall off West Gate Bridge. ”It is imperative that all legitimate concerns about family violence are raised so that the courts can make informed decisions,” he said.

The Age has always insisted that the law must protect the child above all else. When even the Chief Justice says that the Family Court lacks the information it needs to achieve that, reform is required. Yet it should not be forgotten that a greater legal emphasis on shared care arrangements reached through mediation has generally worked well. Any changes have to preserve the trust on which mediation depends. An area of reform that affects the personal lives of so many people must be handled with kid gloves.

Attorney-General acts to stem revolt on legal industry reform

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Robert_McClellandFEDERAL Attorney-General Robert McClelland will today outline changes to the planned national regulation of the legal profession in order to address concerns from key stakeholders which threatened to derail the project. 

In a major concession to demands from the judiciary and the legal profession, Mr McClelland will ditch one of the core elements of the plan drawn up by a federal-state taskforce.

Membership of the proposed national legal services board, the peak regulator, will be expanded to seven to create guaranteed positions for nominees of the Council of Chief Justices and the Law Council of Australia.

The regulatory taskforce, headed by Attorney-General Department secretary Roger Wilkins, had originally wanted to preserve the inherent role of the courts in admitting and disciplining the profession but would have limited their role on the legal services board to membership of an advisory committee.

Legal professional associations would have had a similar advisory role.

The new plan meets one part of the demands of nation’s top judges, who have made it clear that they retain the power to establish a rival regulatory system if they consider the independence of the profession to be at risk.

The Council of Chief Justices told the regulatory taskforce in November they wanted lawyers to form the majority of the board, they should be appointed independently of government, and the board should be chaired by the nominee of the Council of Chief Justices.

The taskforce had originally sought a board of about five who would be appointed by the standing committee of attorneys-general based on their expertise in either the practise of law, consumer protection or the regulation of the profession.

Mr McClelland will outline the revamped structure of the proposed system in Perth today during an address to Law Society of Western Australia.

His speech will make clear that the regulatory taskforce is still considering the composition of the board “and further views will be specifically sought on this issue”.

He will also give the profession an assurance that he believes the independence of the justice system is fundamental to access to justice and the rule of law.

He will describe the proposed regulatory system as a “co-regulation” and will point out that the regulatory taskforce believes “it may be appropriate to delegate some powers of the board and the ombudsman to the profession”.

But he will say that consumer representation in the regulatory system “will enrich deliberations”.

The revamped plan states that the board and the proposed national legal ombudsman “would be accountable to the states and territories through the standing committee of attorneys-general”.

“It is anticipated that the board will collectively hold a range of stakeholder expertise, with members fulfilling the functions of the board rather than representing any one interest or constituent,” Mr McClelland will say.

He will reassure states and territories, giving them an undertaking they will not lose revenue from the interest on clients’ money while it is held in solicitors’ trust accounts.

His speech will recognise that the reform project will bring considerable benefits to large national law firms.

“However all practitioners will undoubtedly benefit from the many proposed improvements to the regulatory system,” he will say.

His speech will indicate that the regulatory reform project is on schedule and a draft bill and proposed national rules will be presented to the April meeting of the Council of Australian Governments.

At that meeting he plans to seek agreement in general terms to the legislative package and to a further consultation period in which the details of the scheme will be made public and debated.

He will say that the bill is still being refined but is expected to be less than 200 pages.

Judge seeks revamp of family law

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chief-justice-diana-bryantTHE Chief Justice of the Family Court has called for a radical change to the law to provide more protection to family members at risk of violence.

In what could be a contentious proposal, Chief Justice Diana Bryant wants information from confidential mediation sessions between separating couples to be given to family law courts if there is believed to be a risk to a child or a parent’s safety.

The types of information provided would include evidence of violence or mental health and drug and alcohol issues. Judges would use the information to help with decisions about parental access and where children live.

Under existing law, any information that emerges in a mediation session is confidential. But mediators can make reports, usually verbal, to child protection authorities and police.

In an interview with The Age, Justice Bryant said she had recently raised her concerns with the federal Attorney-General’s Department.

She said there might be cases where risk factors could be missed if full information was not given to the court in the early stages of a case. ”You might have a mediator … who has formed a view that mental health issues are a serious problem. They can’t provide that information,” she said.

”All of the information that is conveyed to mediators in family relationship centres is privileged. They might have quite a lot of information about family violence from their screening tool which can’t be shared with courts. So when people come to court they just start off fresh with an application.

”I do think we ought to look at whether we can get something more from those organisations … something more that informs the courts when an application is filed to alert them to issues that need to be dealt with as a matter of urgency.”

The government is exploring the issue. Attorney-General Robert McClelland last year asked the National Alternative Dispute Resolution Advisory Council for advice on changes required to protect the integrity of the mediation process, including confidentiality. It will report later this year.

A spokesman for Mr McClelland said it was important to balance the need for courts to have access to the best evidence they can obtain to deal effectively with serious matters such as family violence, and the need to protect family dispute resolution and ensure it is a place where parents can speak frankly to reach agreement.

Under existing law, separating couples who want to settle disputes in the Family Court or Federal Magistrates Court must first go to a family relationship centre or other mediation service, except in cases of violence. If that session breaks down, they can then go to court.

Justice Bryant said most of the information would still remain confidential; only information concerning risks to children and parents would be given to the court. Parents would be warned that information they provided regarding risk could be given to the court.

”It’s really in the early stages when you don’t have a lot of evidence that it’s important for these issues to be raised,” she said. ”Every decision that is ever made by a judge is only as good as the information and the evidence you can make it on.

The idea has been backed by the Law Institute of Victoria. President-elect Caroline Counsel said courts should not be ”blind-sided” by insufficient information.

”It is ultimately charged with the duty of making orders in the best interests of children. If there is information that is made available to them that is pertinent to those issues, surely a better decision can be made if the court is apprised,” she said.

But Samantha Page, executive director of Family Relationship Services Australia, said mediators should be able to alert courts to families at risk without divulging confidential information.

”We would be concerned that removing those confidentiality provisions would discourage people from being open and honest about things that have happened in the past, things they’re worried about, if they knew that was no longer confidential,” she said.

No 50-50 split on time with parents

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50-50THE Full Court of the Family Court has clarified what it means by “shared care” for children after divorce, and it isn’t a 50-50 time split between parents. 

On the contrary, fathers who win “shared parental responsibility” of their children may find they still see them only on alternate weekends, for two hours after school on Wednesdays, and half the school holidays.

The decision surprised men’s groups, who thought new laws requiring the court to consider shared care meant more than weekends, holidays and special occasions.

“That doesn’t sound like the spirit of the new law at all,” said Michael Green QC, of the Shared Parenting Council. “There’s no way in the world that that is shared parenting.”

But Elspeth McInnes of Solo Mums said the decision “reflects reality, which is that equal time, or shared time, cannot work for all couples and shouldn’t be forced on them”.

The Howard government moved in 2006 to give both parents responsibility for children after divorce. Judges must now at least consider an “equal time” arrangement, and if that is not practicable, then an arrangement in which the children spend “substantial and significant” time with both parents.

Attorney-General Robert McClelland is reviewing the law. Last month, he said fathers should never have been led to believe they were guaranteed a 50-50 time split after a divorce.

The full court weighed into the debate yesterday, releasing its decision in a case known as Whisler and Whisler (2010).

The case arose when Mr Whisler — who had been the “house-husband” and stay-at-home dad for two years before separating — appealed against a decision by a federal magistrate to scrap a “week about” arrangement for his children, aged six and four, and replace it with one in which the children lived mainly with their mother and saw their father on alternate weekends, for 2 1/2 hours on Wednesday nights, half the school holidays and on special occasions such as Fathers’ Day.

Mr Whisler complained that the orders did not amount to the children having “substantial and significant time” with him, but in a decision posted yesterday the Full Court said that it did.

“These orders are clearly for substantial and significant time between father and children,” the court said, in part because they include 2 1/2 hours on a Wednesday, meaning the children see their father both on weekends and weeknights.

Mr Whisler’s lawyer argued that the court should have considered an arrangement in which the children swapped after three or four days with one parent.

The court ruled, however, that it would not necessarily be in the children’s best interests to swap around in the middle of a school week.

Grandmother told she’s too old to care for grandchildren

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child-and-adult-handA GRANDMOTHER is fighting for the care of her two grandchildren after the Department of Child Safety told her she is too old at 68 to look after them.

As the Federal Government pushes the case for older workers to stay in the workforce longer, Marlene Baker, who lives west of Brisbane, is restricted to once-a-month weekend visits with her grandchildren who live 100km away in foster care.

The decision comes despite no age limit for carers and the shortfall of foster parents soaring to 500.

Grandparents account for one in five foster parents in Queensland but the department has ruled Mrs Baker and her 80-year-old husband Reginald are unfit to care for the children, aged 2 and 4.

The ruling follows Prime Minister Kevin Rudd’s plan to lift the retirement age to 67.

Mrs Baker admits she has some health issues but claims she is well enough to care for the children.

“I have already proven I can care for them. I do all the cooking, I drive, I clean my house,” she said.

The two children have spent most of their lives living with their grandparents and their 35-year-old aunt.

But last November the aunt, who was the legal kinship carer, told the department she could no longer cope with the responsibility.

The department immediately moved the children into foster care, 100km away, despite Mrs Baker’s willingness to continue to care for them.

Mrs Baker described the separation from her grandchildren as “heartbreaking”, compounded by the fact she is only allowed one phone call a week at 9am on Saturdays.

“This is their home. This is where they want to be,” she said. “Every time they come here, they beg me to let them stay. They have big tears running down their cheeks.
“How do you tell a four-year-old that it’s not you that doesn’t want them, it’s the department?”

The siblings have never lived with their biological parents, who were considered unfit to care for their children.

Mrs Baker first applied to become a kinship carer for her four-year-old grandson, when he was born.

“They did a house inspection, I had a medical, I got a blue card and in the end I was told I was too old – I was 64 then,” Mrs Baker said.

The boy spent a year in foster care, until the aunt became his carer and also assumed care of his sister when she was born.

For most of this time, the three lived with the Bakers, and Mrs Baker was their main carer.

The Bakers have nine children, 16 grandchildren and nine great grandchildren.

Mrs Baker described the department’s actions as “heavy handed”.

At the very least she would like more access to the children.

“If I can’t have them, why can’t I see them more often, take them on holidays, why can’t they be in foster care nearby, so I can drop in and see them often like a normal grandmother?” she asked.

Independent MP Dorothy Pratt said the Bakers were victims of time-poor social workers, and their story was not an isolated case.

“If grandparents are capable of caring for a child they should be the first choice,” she said.

“There is not enough time put in to make appropriate choices and consider what is best for the child and the family.”

A spokeswoman for Child Safety Minister Phil Reeves said the priority was to provide children with “a safe and loving home environment”.

“The department always prefers to place children with family if possible,” she said.

“But every application must be assessed with absolute rigour to ensure the child’s best interests are upheld.”