Caroline Overington | May 30, 2009
THE Family Court has at last recognised the "agony" children suffer during divorce by forcing their warring parents to live close to each other, says a campaigner for the reform introduced by the Howard government.
Michael Green QC, a family law expert who campaigned for the shared parenting amendment enacted in 2006, said yesterday recent decisions proved that the right of a child to have a meaningful relationship with both parents after separation was being taken seriously by the court.
The Australian reported yesterday on the case of Rosa and Rosa, in which a couple moved with their four-year-old daughter to a remote town in northwest Queensland, so the husband could take up a job as a mining engineer.
The marriage broke up six months later. The wife wanted to move back to Sydney, where their daughter was born and had lived four of her five years. She was lonely in the mining town, and living in a caravan, unable to afford anything better.
But the Family Court, and the full bench on appeal, said she could not take her child to Sydney because the reform required judges to presume the best interests of the child were served by having a relationship with both parents.
"I know there are many women associated with the more radical feminist groups who like to underplay the damage done by separation, on children of any age," Mr Green said.
"But in fact the loss, the agony, the child experiences when it loses regular contact with a parent is significant."
Retired Family Court judge Tim Carmody said "it used to be that the mother's right to move with her children was generally seen as compatible with what was in a child's best interests.
"That's no longer necessarily so. The best interests of the child is now seen as being served by having a meaningful relationship with both parents. But what kind of relationship? And at what cost?"
Mr Carmody's decision to leave the Family Court coincided with the reform, and he believes his concern about the ways it would work is now justified, "especially in this situation, where you have a parent condemned to live somewhere they've never really lived, for who knows how long".
Kathryn McMillan SC, a Brisbane family law expert who will speak on the subject at a forum next month, said "relocation cases are always difficult, because it tends to be all or nothing.
"Somebody wants to move, and that means that somebody else is going to lose time with their children.
"One of the questions the judge will sometimes ask is, if I don't allow you to move, will you go without the child?
"Most parents will say, no, of course I won't move without the child.
"And in a sense that means they are damned if they do and damned if they don't, because if they won't move without the child, the judge can make orders that there should be shared parenting, which means they get stuck."
Jacky Campbell of Forte Family Lawyers in Brisbane said the "shared parenting laws are being imposed on people who are not co-operating at all, and the outcome is often poor".
In Rosa and Rosa, the wife's parents, sister and other family members had nothing good to say about her husband, and that played against her because the court thought they wouldn't encourage her to keep the child in contact with her father.