Dad banned from seeing child for 13 years

Updated January 17, 2012 14:20:10

The Family Court has banned the father of a five-year-old girl from seeing his daughter until she turns 18 by ruling that shared care would not work.

After a long legal battle, the court ruled it would be pointless to order shared care of the girl because the mother was determined to ignore court orders and destroy the daughter's relationship with her father.

The court said while it was not in the best interests of the child, the only solution was to ban contact between father and daughter until she turned 18.

The case has been branded by legal experts as one of the most extreme since amendments to shared care legislation in the Family Law Act were introduced by the Howard government in 2006.

Jenni Millbank, a professor of law at the University of Technology in Sydney, says the Family Court needs to consider the relationship between the child and both parents.

"The Family Court has to consider the benefit to a child of a meaningful relationship with both parents and, if they order shared parental responsibility between the parents, they must also then consider whether or not the child would benefit from so-called equal time or, if not equal time, substantial and significant time," she said.

But Professor Millbank says certain circumstances mean some shared care arrangements do not work.

"If a parent is violent or abusive or if they have a very serious mental illness or an addiction, if they are not able to prioritise the child's need over their own needs or if there is such extreme conflict between the parents that the benefit of the relationship is outweighed by the destructive impact of the conflict on the child," she said.

'Fraught issues'

The director of Canberra law firm Farrar Gesini and Dunn, Juliette Ford, says those circumstances existed in the current case.

"There are a number of extremely fraught issues between the parents," Ms Ford said.

"There were allegations of violence between them; there are allegations of abuse in relation to the child; there is evidence of the father's attitude towards the mother, which is negative.

"And then there is also a lot of evidence as to the mother's attitude towards the father, which is also negative."

"The courts have been very careful not to in any way be seen to be complementing, congratulating or condoning the actions and attitudes of each of the parents, and this isn't a case where one should see that the mother has been vindicated in her actions.

"The court has very much made a decision as to what's in the interests of this little five-year-old notwithstanding the actions of her mother in this particular case."

Audio: Mother's refusal sees father banned from contacting daughter (The World Today)

Professor Millbank says the case should not set an unwanted precedent for shared care.

She says it just confirms that the case in question was extreme.

"As Tolstoy says, every family is unhappy in its own special way," Professor Millbank said.

"So there's no such thing really as the death of shared care or a precedent that binds other cases. This sounds like a very extreme and unusual sets of facts and so you're going to get an unusual judgment.

"I think it's very clear that the shared care legislation has set down a pattern of much more shared care. So you can't just say because it didn't happen in this one case that the quotes about the death of shared care, I thought, were just a bit extreme."

High-stakes game

Professor Millbank says parents who simply refuse to deal with each other are playing a high-stakes game.

"There is absolutely that question of kind of thwarting the relationship but that is also a consideration in the legislation," she said.

"The court has to consider the willingness of each parent to facilitate the relationship of the child with the other parent or with other important people.

"So if you just say 'it's over and I hate him now so I don't want the child to see him', then one of the possible outcomes is the child will actually go into the primary care of the other parent."

Ms Ford says the laws have mostly had a positive impact.

"What's happened since those amendments is there's been a greater number of cases where people have been spending more time with their children," she said.

"Some can see that as being a good thing. Some may point to some decisions where that necessarily hasn't been a good thing.

"But what it has caused people to think about is well, my actions and who I am as a person is going to have some relevance towards what orders somebody makes which is in the best interests of my child and it's not about me and what my rights are, it's about what's appropriate for my children.

"That's really what this case struggled with."

Editor’s note: (January 17) a related video has been removed as it was inaccurate and lacked balance.

Topics: family-law, family-and-children, courts-and-trials, australia, canberra-2600, sydney-2000

First posted November 24, 2011 18:49:16