An article published in the Australian and written by Carolyn Overington on 24 November 2011, reports on a recent Queensland case in which the full bench of the Family Court found that shared care was not appropriate in relation to a five year old girl.
Allegations of violence and emotional abuse were made by both parents, however the Court found that given the “hatred” between the parties, any form of co-parenting would not be practical or workable. The Court found that the child’s mother would “destroy” any relationship the girl had with her father rather than agree to shared care.
This finding is surprising in light of the fact that the Court also found that the child enjoyed spending time with the father and the daughter “would be distressed and that the loss of the girl’s relationship with her father” would be emotionally damaging in the short-term and also possibly in the long-term.
The decision appeared to be about choosing between the lesser of two evils, as the Court found that despite this, the loss of the child’s relationship with the father would be less harmful than the loss of her relationship with her mother. The Court found that the child could not spend time with both parents.
In a way, I cannot help but think that this decision suggests that if a parent is unreasonably obstructive of the child’s relationship with the other parent, this shows that this can be a successful strategy for them in preventing the other parent from spending time with the child. However, the Court says that the decision should not be seen as “condoning the mother’s conduct”.
Although the article says that the decision suggests that shared care is dead, in a way shared care was never the overall goal of the Family Court at the expense of the child’s best interests. The legislation has always clearly stated that the Court is to make Orders in the best interests of the child. However, the current legislation states that the Court must, in the absence of any threat of risk of harm to a child, consider if equal shared parental responsibility is in the best interests of the child. Thus, it has never been the case that shared care must always apply.
However, this certainly does seem to be a move away from what was achieved by Men’s rights lobby groups and in some sense, the decision could be seen as functioning to reward manipulative parents (of either gender) who obstruct the relationship between the other parent and the child.
However the Court did emphasise that “termination of the child’s relationship with one of her parents is of course, a last resort”.
This decision actually makes me feel genuinely sad for the child because it shows how parents themselves do not always consider the best interests of the child. In some cases they are so blinded by their hate for each other, that the Court may be right in finding that it is simply not possible for co-parenting to work. While I do not doubt that such parents of course love their children, they are not able to see past their hatred for their ex-partner and appreciate the fact that the child may still enjoy spending time with them. The child is forced to be deprived of one relationship with one of their parents.
This case may show that there is important non-legal work to be done surrounding the breakdown of a relationship such as family counselling.
If you or someone you know is currently seeking access to their child following a separation, we may be able to assist you at Armstrong Legal. Please contact us on (02) 9261 4555.