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November 25th, 2011 by Robert Franklin, Esq.
Two Australian courts have endorsed a mother’s violations of a father’s visitation order.  Read about it here (The Australian, 11/24/11).

In my last piece, I told you I’d follow up with a post demonstrating the astonishingly anti-father bias of Australian family courts, and here it is.

A QUEENSLAND father has been banned from having any contact with his five-year-old daughter until she reaches 18 after the Family Court accepted that the child’s mother would “destroy” the relationship rather than agree to shared care.

In a decision that suggests the “shared care” law introduced by the Howard government was effectively dead, a full bench of the Family Court said “the mother would ignore any order for contact” and, as a result, it was pointless to order her to co-operate.

You read that right.  The father was given rights of access to his daughter by a family court.  They were very minimal rights, allowing him to see his child only two days out of every two weeks, but Mom decreed that to be too much.  Indeed, she ruled that any contact at all was more than she desired, and so she permitted none.

That of course violated the court’s order, so what did the court do?  Did the judge order her to comply?  Did he order custody changed?  Did he order the child brought to court and placed in the care of the father?  Did he force Mom to pay the father’s attorney?  Did he fine her?  Jail her?  No, the judge did none of those things, even though they’re all in his power.  On the contrary, he rolled over and let her do what she wanted.  Mom wanted to deny her daughter a father and the judge said “OK by me.”

So now this child will live her whole childhood without a father.  We know that’s bad for her.  We know she’ll suffer, probably her whole life long due to the lack of a male parent.  We also know that the court had it in its power to achieve another, better result, but chose not to.

Here’s what should have happened.  At the first indication that she was ignoring the court’s visitation order, the judge should have warned the mother and given the father “make-up” time, i.e. a single stretch of time with his daughter that made up for all the time the mother had denied him.  If that didn’t work, if the mother continued to deny access, the judge should have ratcheted up the sanctions to include not only increased time for the father but forcing Mom to pay his attorney fees incurred in bringing his action to enforce his rights under the court’s order.  At that time the judge should have warned her that future similar behavior would result in a change of custody.  If she still didn’t improve, the judge should have changed primary custody to the father with supervised visitation to the mother.

The reason for all of that is the need to keep both parents in the lives of children.  Amazingly, the court’s behavior came, not under the roll-back of the 2006 amendments to the Family Law Act, but under those amendments that clearly show a preference for dual parenting post-divorce.  I suppose I don’t need to point out the obvious – that if a judge can so flagrantly flout a child’s rights to her father under the 2006 amendments, imagine what courts will do under the new regime.

Let’s be clear.  Although the mother claimed the father abused the child, Judge Keith Wilson found that he had not.  The court found that the child had a “good and loving relationship with her father” and that she “plainly enjoys spending time with her father.”

Mr Wilson agreed that the loss of the girl’s relationship with her father “would be distressful in the short term and may also be emotionally damaging to her in the long term”.

So, the father has done nothing wrong, he loves his daughter and she loves him.  Moreover, she’ll suffer if her relationship with her father is severed.  By contrast, the bad actor in the drama is the mother who makes no secret of the fact that she won’t comply with any court order allowing the father access to his daughter.  Those are the facts.  The solution?  Give sole custody to the wrongdoer even though it will hurt the child.

Now, it’s true that Judge Wilson concluded that removing the father from the child’s life would be less harmful than removing the mother.  He also found that these parents simply can’t act together for the benefit of the child.  About that I say three things.

First, he drew the second conclusion without making any effort to find out if it was correct.  My thought is that if he’d transferred custody to Dad and given Mom only supervised visitation (because she looks like a parent who might abduct the child), Mom might have come to understand that the court wasn’t going to tolerate her bad behavior.  She might then have started to toe the line.  But the judge didn’t try any other parenting arrangement, preferring to conclude that none other than the one ordered would work.

Second, there’s always merit in punishing the wrongdoer and rewarding the one who behaves properly.  Now that I think of it, isn’t that what courts are there to do?   But the court did the opposite here.

Third, the notion that the child will have a good life and a proper upbringing in the sole care of a mother who behaves as this one has is suspect at best and likely outright wrong.  This woman is a child abuser plain and simple.  She is that because she refuses to allow her daughter any contact with her loving father, which will redound to her detriment her whole life.  And let no one be deceived; if the mother does this with the father, she’ll do it with anyone and everyone else.  She’s apparently pathologically possessive of the girl, and will continue to claim exclusive possession of her toward anyone, particularly males, the child seeks to get close to in the future.  Heaven help the girl’s first boyfriend!

In short, the court has set this child up for a very unhappy, dysfunctional childhood that will in all likelihood continue long into her adult years.

Now, what I’m saying isn’t rocket science.  Any impartial observer could see the same thing.  But it is part of my point that this judge, in keeping with Australian family jurists generally, is anything but impartial.  His whole reasoning, all of his behavior in the case indicate a radical preference for maternal care of children.  How else to explain his selection of a plainly unqualified, plainly abusive mother to be the sole caregiver to a little girl?

In fact, Wilson’s decision is all of a piece with Australian jurisprudence generally.  We’ve learned from Australian historian John Hirst that the family law courts of that country long ago explicitly abjured the enforcement of visitation rights.  We also know that 90% of non-custodial parents there are fathers.  Therefore, the refusal to enforce visitation rights is overwhelmingly a refusal to enforce fathers’ rights.  It is also a refusal to enforce the rights of children to their fathers.  To be clear, there is nothing gender-neutral about the behavior of family courts in Australia.  And that radical misandry is nowhere more obvious in the case discussed here.

As if in backhanded acknowledgement of what I’ve just said, Judge Wilson was at pains to deny the obvious.

[He wrote] he did not want people to think that the decision “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”.

He might not want people to think that, but that’s precisely what it is - ”an acceptance of the mother’s position” and a “surrender to her unreasonable refusal to permit a relationship between the child and her father.”  If not that, what?

Proving itself to be every bit as cowardly and abject as the trial court, the appellate court chimed in thus:

On the final page of its judgment, the full court also made a point of saying “our decision should not be interpreted as condoning the mother’s conduct”.

No?  Then who walked out of court with a smile on her face?  Who pumped her fist with a victorious “Yes!”?

The august jurists can write their 30-page opinions vainly trying to justify their anti-father, anti-child decisions, and they might succeed in fooling themselves, but they can’t fool me.  This is as radically anti-father and anti-child as it gets.

But I’m not the only one who will see this case for exactly what it is.  Mothers from Perth to Sydney will read the article and take careful note.  The lesson is clear; if you’re a mother, the worst possible behavior is acceptable, even preferable.  If you want sole custody of your child, this is the way to get it.  The matter is now one of judicial precedent.  Simply refuse the father all contact with his child and eventually the courts will accede to your wishes, however unreasonable, however violative of the court’s orders, however destructive of your child’s psyche.

And of course, it’s all done in “the best interests of the child.”

Now don’t forget; all of the foregoing is the good news.  That was done, you’ll recall, under the “father friendly” 2006 amendments.  I know you didn’t think it possible, but in Australia, it’s about to get worse.

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