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November 28th, 2011 by Robert Franklin, Esq.
In my post about the Australian family court that awarded sole custody to a mother who openly and frankly refused to allow their child to have any contact with her father, I omitted one thing.  The case is outrageous enough that I’d like to include that now.

As you’ll no doubt recall, the judge originally awarded the father the usual modest access to his daughter – two days out of every two weeks.  But the mother didn’t like that so she simply refused to allow him the access the court had ordered.  She wasn’t devious about her intentions; she said she wasn’t going to allow access and she didn’t.

To that the court apparently felt there was nothing it could do, despite the fact that courts are vested with the power to hold those who disobey their orders in contempt.  As I said in my last post, there are plenty of actions the court could have taken to try to bring the mother to heel, and, failing that, it could have simply switched custody to the father.  But Judge Keith Wilson preferred to not even attempt to remedy the situation.  He simply threw up his hands and gave the child to the wrongdoer.  Into the bargain, he ordered the father to have no contact with the child for the next 13 years, i.e. until she turns 18.  And the appellate court backed him up.

Now, I pointed out most of what was wrong with that, but I omitted one important thing.  Both the trial and the appellate courts engaged in a bit of literary sleight of hand.  While admitting what the mother had done, they managed to make it appear that the father was equally at fault.  They noted that the mother had kept the child from the father in violation of the court’s order, but then turned around and said that the reason for cutting the father out of the child’s life completely was because the two were unable to “co-parent effectively.”

Well, I suppose that’s true.  After all, how’s the dad supposed to “co-parent” with a mother who refuses?  The concept of co-parenting necessarily involves two parents; Dad can’t do it alone.  And so, the court tagged him with equal responsibility for the pair’s inability to co-parent, even though it was solely Mom’s doing.

The judge also criticized the father for being angry with the mother.  Who wouldn’t be?  After all, he clutches a court order saying he has the right to access – not much access, but access nonetheless.  Faced with a mother who openly flouts the authority of the court and the father’s rights, and a court that sits passively by while she does so, it’s hard to imagine a father “smilin’ through.”  But apparently that’s exactly what the court demanded.

So again, the mother’s bad behavior becomes the father’s fault.  She’s the bad actor, but he’s the one punished – he and the child, that is.  Whatever wrong he’s done was brought about solely by her outrageous behavior, but somehow that becomes his fault.  In fact it becomes solely his fault because he will now never see his daughter before her 18th birthday, if then.

It’s another aspect of the astonishing anti-father bias of family courts that the worst possible actions by a mother become the fault of the father.

Not for nothing did the article I linked to pronounce shared parenting in Australia to be dead.  After all, if a mother can get away with what this one did, what fathers will ever get access to their children?  The answer is, “the ones whose ex-wives decide to permit it.”  Never have fathers’ rights to children and children’s rights to fathers been placed so squarely and frankly in the hands of mothers.  When even a mother’s open violation of the court’s order, to say nothing of the law that prefers joint custody, aren’t enough to get a father any help at all, there’s not much left of fathers’ rights.

And as I said before, this won’t be lost on mothers.  They’re not stupid, they read the newspapers, and if they don’t their lawyers do.  Any mother who wants a child all to herself now knows exactly what to do.  Simply deny all access and eventually the court will accede to your wishes – no cost, no punishment, no loss of custody.  Easy as that.

The case was so outrageous and the article so accurate in pronouncing shared care in Australia to be dead, it drew the ire of the country’s attorney general, Robert McClelland.  Here’s his letter to the editor (The Australian, 11/25/11).  It’s the third letter.

YOUR assertion that “shared care is dead” is wrong. The federal government strongly supports shared care and a child’s right to a meaningful relationship with both their parents.

We’re all glad to know that of course.  But in his entire letter, McClelland makes no reference whatever to the case that spurred The Australian to write the epitaph of shared care.  He utters not a word in defense of Wilson’s bizarre and indefensible decision.  That’s understandable of course; I couldn’t think of much to say in that regard either.

But of course that’s precisely why The Australian said shared care is dead; if behavior like the mother’s in that case is not only acceptable, but rewarded, exactly how does McClelland contend that dads should assert their rights to love and care for their children?  Tellingly, he doesn’t even try.

Weirdly, what he does do is attempt to recruit the just-passed amendment to the Family Law Act to support his claim that the government is enthusiastic about shared parenting.

That’s why the legislation, which has now passed the parliament, retains the shared-parenting provisions introduced in 2006 with one important change – the reforms will only support shared-care parenting arrangements for children where these arrangements are safe.

That’s about the most tepid support for shared parenting I’ve ever seen.  Let’s see.  We have an existing law that apparently permits a mother unfettered power to deny her daughter access to her father.  That law has now been amended to make it far easier for a mother to dispossess a father of his rights.  It does so by defining “abuse” so broadly that virtually anything can qualify and then fails to punish false allegations.  The new law is absolutely guaranteed to separate more and more fathers from their children, and in truth, that’s its purpose.  Look at who supported the change, and you’ll see what I mean.

Somehow all that adds up, in McClelland’s telling, to a government that “strongly supports shared care and a child’s right to a meaningful relationship with both their (sic) parents.”

As I said last time, he may be able to fool himself, but he can’t fool me.  Words like “strongly supports” just don’t cut the butter.  Actions are what matter, and the actions of the current government and family court judges leave no doubt about the future of fathers and children in the land down under.

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