Friday, 15 August 2008

Federal Magistrates Court case: children's case: what not to do

In the recent Federal Magistrates Court case of Grant and Terry, the father, Mr Terry, sought a shared care arrangement. However, he seemingly did all he could to demonstrate why it shouldn't happen:

- The Federal Magistrate's views reflected in part those of the family report writer:

the best chance for a shared care arrangement being successful is in circumstances where the parties are able to form an alliance with one another to parent their children cooperatively
, but it was apparent that not only was there no partnership here, but outright antagonism between the parties. [ This reflects the common view- if shared care is going to work, there must me a minimum of conflict between the parents and a maximum of co-operation, so that childrne can move seamlessly between the two households.Increase the conflict, and decrease the chances of getting an order for shared care or, more importantly, enabling shared care to work.]

- the father represented himself. Sometimes people can do this successfully. Sadly for him, Mr Terry was not in that category:
Mr Terry was at a significant disadvantage in the hearing before me. He had to prepare and present his own case. My impression however is that he relished the opportunity, particularly because it gave him an opportunity to lay out publicly his long-held grievances about Ms Grant and hector her about them.

My impression of Mr Terry is that he fancies himself as a bush lawyer. I found him to be an opinionated bully, who is incapable of any self-criticism or self-analysis because of his conviction that he is always right. As such, he is intolerant and dismissive of anyone who does not share his views.

Mr Terry accepts that he has an assertive personality. The implication being that this was merely a quirk of his temperament, soon accepted by people, as they came to know him better. He described himself as “harmless”. I did not find him so in respect of his presentation towards Ms Grant and later to [the family report writer].


- the father had a log of claims about his criticisms of the mother's parenting:

The children have been presented to him in torn clothing; clothing which does not fit them; and wearing shoes with holes in them.
When the children have spent time with him during the holidays, the mother has failed to provide them with adequate supplies of clothing.
The children have been presented to him “riddled with headlice”.
The mother has failed to provide and ensure [B] wears glasses. This is significant because [B] suffers from dyslexia and has issued to do with processing information. The mother has also failed to ensure [B] attends tutoring classes, which have been recommended for him.
The mother has failed to protect [C] from bullying at school and has ignored [C]’s complaints in this regard.
The mother left [C] in the care of strangers, in August of 2007, when [B] fell ill. At the time, she did not pay proper attention to [C]’s care, particularly matters to do with her personal hygiene. The mother ignored [C]’s emotional distress at the time.
The mother was lax in attending to [B]’s illness and took too long to respond to it properly. She also misled him about the seriousness of [B]’s condition.
This mother has failed to provide him with information about the children’s progress at school and provide him with information regarding [B]’s special needs.
The mother has failed to supply [C] with glasses, in contravention of an optometrist’s advice.
The mother does not feed the children properly. In particular, she does not provide them with sufficient meat and vegetables but rather relies on unhealthy processed foods.
The mother has spoken of him, in a derogatory manner, to the children.
The mother has failed to involve the children in appropriate extra curricular activities. In particular she has not been supportive of [B] learning the cello and attending the chess club at his school.
The mother has exposed the children to violent and unsuitable video material.
The children are not allowed to telephone him.
The mother has allowed the children to be cared for by Mr C, who by reason of his previous sexual conduct, is an unsuitable person to care for children of the ages of [B] and [C].
Further, the mother has caused the children psychological distress by directing them to lie to him about the involvement of Mr C in their care.
The mother has enrolled the children in karate, which is an unsuitable activity for them.
The mother does not display affection towards the children, particularly she does not hug and kiss them.
The mother has not included his name and details on the children’s school enrolment forms.
Ms Grant has involved herself in Mr Terry’s relationship with his mother and has attempted to alienate the two from each other.
As previously indicated, Mr Terry has nothing of a positive nature to say about Ms Grant’s parenting of the children, other than that somewhat begrudgingly he acknowledges that she loves the children “in her own way”. A theme of his case is that Ms Grant prefers to spend money on herself, particularly in regards to shoes and manicures, rather than on supplying the children’s proper needs.


- The mother in turn had her criticisms of the father:

He has failed to provide proper financial support for the children and is unreliable so far as child support is concerned.
He has consistently failed to return the children, on time, following holiday visits.
He manipulates the children emotionally by allowing them to play their parents off against one another.
The mother asserts that the father constantly questions the children, when they are in his care, about her household arrangements and this is emotionally undermining for the children, particularly as the thrust of the father’s questioning is negative, so far as her care of them is concerned.
The father is dismissive and irrationally critical of her parenting without any proper basis.
The father was violent towards her, in the presence of [C], at the [X] Hospital on 12 August 2007.
The father is unstable and aggressive.
The relationship between the father and Mrs T is at times a volatile and violent one, to which the children have been exposed.
The father has not cared for the children, when they have ostensibly been in his care during school holidays. Rather, he leaves this responsibility to Mrs T, preferring to go about his [animal] training duties.
The father does not allow the children to telephone her, when they are in his care.


Conclusion

Well in light of all of the above, the outcome was not really a surprise: the court held that the children should continue to live with the mother and see the father, and that the mother should have sole responsibility for making decisions about the children's education and health.

This is what the Federal Magistrate had to say:


I do not think that it would be in the best interests of either [B] or [C] that their parents have equal shared parental responsibility for them. Firstly, I believe, on what I consider to be reasonable grounds, that the father engaged in family violence, against the mother, at the [X] Hospital on 12 August 2007.
Secondly, and more importantly, I do not think that such an outcome would be in the best interests of the children. The parties’ parenting relationship is so poor and acrimonious that they are simply incapable of reaching any joint decision about arrangements for the care of their two children.
Sadly, I have come to the conclusion that one parent alone should have authority to make major long-term decisions in respect of the two children. Given the previous care arrangements for the two children, in my view, that parent should be Ms Grant, who has discharged the vast majority of the parenting responsibility for these two children over very many years.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
In this case, it seems inevitable that Mr Terry and Ms Grant will disagree about issues to do with their children’s education. They are unable to agree about the merits of something as comparatively trivial as to whether or not the children should do karate.
When there was a life-threatening crisis involving [B], rather than focusing on his medical care, a vitriolic dispute arose: who should care for [C]? The father solved this issue by taking things into his own hands. This is the type of case, where one parent should have sole parental responsibility, for these types of issues, to avoid such conflict in future.
Accordingly, I propose to make an order that Ms Grant be responsible for making decisions about the children’s education and health needs. The father is fearful that the mother has plans to move with the children to Queensland, something she vigorously refutes. I do not propose to place in the mother the power to relocate the children, away from Adelaide, without the father’s consent or, if appropriate, an adjudication of a court.
Neither of the parties has raised any specific issues to do with the children’s religious or cultural orientation. The children have borne the surname Terry for all of their lives to date. The mother has no proposals to change this arrangement and nor should it be suggested that the order for parental responsibility, which is being made, entails such authority.

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