Caroline Overington; 5/9/09
It’s one of the oldest parentingt tips in the book: never wake a sleeping baby. Then there’s breastfeeding: if you can do it, do it, because it’s the best possible thing for infants.
Neither of those rules seemed to have been upper-most in the mind of federal magistrate Stephen Coates last May, when he was asked to decide a dispute between the separated parents of a breast- feeding baby. The case, Farmer v Rogers (all courts give parties to family law disputes pseudonyms to protect their privacy), involved a mother, Ms Farmer, who had separated from her partner before their baby was born. It seems clear from the court transcript that she was trying to distance herself from him.
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The father, Mr Rogers, went to court, saying he wanted a chance to bond with the infant.
The mother proposed limited contact and no overnight stays, saying the seven-month-old was still breastfeeding and taking two naps a day.She said it simply wouldn’t be fair, or healthy, for the baby to be woken at set times, and fed at set times, so the father could have access.
Under the old family law system – that is, the one that existed before John Howard’s government in 2006 introduced the so-called “shared parenting” laws – Ms Farmer would almost certainly have got her way.
Under the new laws, however, federal magistrates and Family Court judges are required to presume the best interests of children – all children – are served by having a relationship with both parents, except where there is violence.
As such, Magistrate Coates ordered Ms Farmer to provide the father with access to the child.
He ordered thrice-weekly contact, on Tuesdays and Thursdays from11am, and on Saturdays, for eight hours at a stretch.
The mother’s legal team protested, saying the baby couldn’t go that long without breastmilk, and in any case, how could it be in the best interests of the child to be woken, struggling, probably screaming, and regardless of whether it was teething, or colicky, to be delivered to the father at some time mandated by the court?
Magistrate Coates reflected on this and, at the next hearing, he changed his ruling, slightly. He agreed that an order of the court “cannot and should not introduce to a child’s life a regime which may well amount to abuse of that child”, and that included ordering that a child be woken, or breastfed at particular times.
So, he reasoned, Ms Farmer could move to a house no more than 10 minutes from the child’s father and call the father when the baby woke up from morning naps three times a week.
The father could then drive around and pick up the child for four-hourly visits.
The mother would go to them every two hours, to feed the child if necessary. Ms Farmer had no choice but to comply.
Magistrate Coates also said that if the mother refused to move to within 10 minutes of the father, and organise the baby’s day around the father’s access times, the court would take the infant from her.
It is fair to say that this decision was greeted with great dismay by proponents of breastfeeding – and indeed, proponents of the primacy of mother care, especially in the first years of life – but the decision shouldn’t have come as a surprise.
A recent study by Flinders University academics Dr Linda Sweet, of the School of Medicine, and associate professor Charmaine Power, of the School of Nursing and Midwifery, found that a fair number of breastfeeding infants are now being shuttled between separated parents so that the requirements of the shared parenting laws can be met.
In one case, a child whose parents lived far apart was spending three hours a day strapped in a car seat so that each parent could spend time with her.
In another, a mother reported developing mastitis (where the breasts become inflamed because the milk isn’t being properly drained) while her baby was on week-long visits with the father.
In their report, Sweet and Power noted “ample evidence that breastfeeding is the best form of nutrition for infants” (and, indeed, forms part of the Government’s formal dietary guidelines for infants). How, then, could a decision to separate a breastfeeding child from its mother be in the best interests of a child?
“It isn’t in the best interests of the child,” says Barbara Biggs of the National Council for the Children of Separated Parents, a group that has formed in recent months to protest against the shared parenting laws. “It’s in the best interests of the father, and it’s part of a system that has begun to do real damage to women, to mothers and their children.”
Edward Dabrowski, of the Shared Parenting Council, disagrees. “There is no reason why a breastfeeding mother can’t pump milk into a bottle for the father, when he is with the baby,” he says.
“There are women who breastfeed for a very long time to stop fathers from getting access to their children, and then go to court, and say the child doesn’t have any relationship with the dad, and I Want to move in with my new partner, and the court says fair enough, off you go.”
The rough end
Any politician will tell you that the number one issue in their electorate office is family break down.
Around 1000 contested cases came before the Family Court last year – and that represents only a tiny fraction of the actual number of children caught between warring parents, whose cases never make it to court.
There is no doubt that fathers often got the rough end of the pineapple under the old system.
Every MP can recount tales of fathers who had to pay a huge percentage of their income in child support for children they never saw; who were left so poor they couldn’t provide for their new families; who would turn up for access visits only to find the children weren’t home; who had spent tens of thousands of dollars trying to get the courts to enforce access orders; of fathers who have sat back, flabbergasted, as the courts ruled that their ex-wives could move interstate with their children to start new lives with new partners, leaving the father with one week during the school holidays and a weekly phone call.
The mothers can’t, and shouldn’t, take all the blame for this: for every father who wants to see more of his children there is another who has shot through and never paid a cent in child support.
Still, it was the view of many that the law needed to be tweaked, and it was pressure from fathers in these situations – broke, hurt and estranged from their children, often through no fault of their own – that prompted the Howard government to amend the Family Law Act.
The amendments don’t mean that separating parents are now entitled to equal time with the children (although that’s the expectation of many fathers, and week-about arrangements have become more common under the law).
But they do mean that fathers can expect to get “substantial and significant” time with the children.
The law has been in place for about three years, which is about as long as it takes for such a monumental change to work its way through the system and be reflected in the decisions made by federal magistrates, who hear the bulk of family law matters, and by the Family Court.
Each case is supposedly heard on its merits, but some trends have emerged. There have so far been two independent academic studies of the legislation, both of which have found that it is now more difficult – although not impossible – for mothers to relocate after divorce, especially
if they wish to go overseas.
Fathers are pleased about this.
Wayne Butler of the Shared Parenting Council says: “We’ve heard of cases where the couple has split and the dad is trying hard to keep a relationship with his children, and then mum will meet a guy on the internet, who lives in Canada, maybe, and she’d be off, and take the kids.
And there was nothing the dad could d about it … she’d come back in two years, after that relationship failed, and the kids wouldn’t even know who dad was.”
Likewise, the law hasn’t prevented fathers who are violent to their ex-wives, or using drugs and watching child pornography, from getting access to their children. Then, too, there have
been fathers who’ve asked judges to reconsider long-standing childcare arrangements in light of the new law, in part so they can pay less in child support (the new laws link the amount paid in child support with the amount of time a child spends with each parent).
To some extent, these problems were foreseen.
More surprising – and in the view of the Rudd Government, more troubling – are those aspects of the law that seem to tie warring parties together, and that seem to punish mothers, if their children stay with them, in a messy divorce.
One case that raised eyebrows is Irish v Michelle. It concerns two children – a girl, nine, and a boy, seven – who were taken from their mother’s home in Tasmania, where they had lived all their lives, and sent by a Family Court judge to live with their father and his new girlfriend (a woman they barely knew) in Melbourne.
The children had lived with their mother since their parents separated in 2005 and, over time, their relationship with their father had become strained.
According to court documents, the children would kick and scream when their father came to get them for “contact” (the new word for what used to be called “access”).
On one occasion, a court-appointed social worker saw the girl trying to get out of the father’s car while it was moving. She was so distressed, she cancelled the contact visit.
The children didn’t like the father’s new girl-friend.
There was some resentment that he’d left Tasmania to be with her in Melbourne. When he came to get them for visits, they’d say: “I don’t want to go” and “I don’t have to go”.
He believed their minds were being poisoned against him.
Family Court judge Robert Benjamin, sitting in Hobart, agreed that the children wanted to live with their mother, adding: “The mother has always been the primary carer of the children … and they have always lived with her.”
But he said the mother could “see what was happening at changeovers and did little about it” and concluded that “sadly, this is a case where the children maybe at unacceptable risk of psychological harm if they remain with the mother”.
The girl was becoming estranged from her father and the judge said the mother needed to encourage the children to develop a warm and loving relationship with their dad. When she failed to do so, the judge ordered a change of residency.
That’s another new term, which basically means the mother lost custody of the children, and now sees them when their father flies them over for school holidays.
There’s also the case of Rosa V Rosa,
which came before a federal magistrate, and then the Full Court of the Family Court, and may yet end up before the High Court.
The case involves a couple who were married for more than 10 years. They met in Sydney, married in Sydney, and in 2002 had a daughter in Sydney. She was five years old when Mr Rosa, an engineer, got a well-paid job in a remote mining town in northwest Queensland. Mrs Rosa agreed to move up there but six months on, the marriage was in tatters. Mr Rosa put his wife’s possessions out on the deck. Given that she had lived in the town for less than a year, she moved back to Sydney with her daughter.
Mr Rosa petitioned the court for an interim order to have his daughter returned, and he won.
Mrs Rosa had to move back to the remote town while the case made its way through the courts. She had little money, and housing in the town is expensive, so she moved into what is known as a “donga” (a prefabricated box, divided into two rooms by a stud wall, with no running water or sewerage) at the local caravan park. It costs $260 a week.
At the time, she earned $67 a week, caring for local children while their mums used the gym. She’s since taken some bar work, too.
Her daughter lives in a week-about arrangement with her dad, who remains in the family home and, because he has shared care of the child, his child support payment is just $14 a day.
His income has been assessed at $71,000 a year. His parents, who are retired, have moved to the town to help him care for his daughter while he’s at work.
Mrs Rosa has no family there at all.
Mrs Rosa told The Weekend Australian Magazine that the situation in which she finds herself is “surreal. I never imagined when I moved up here that he could keep us here, for as long as he wanted”.
Mr Rosa declined to comment. There were some key issues: first, Mrs Rosa’s family said unkind things about Mr Rosa (given that he threw her out of the house, that’s not hard to understand) and John Coker, the federal magistrate who heard the case, was worried that if he gave Mrs Rosa permission to return to Sydney with the girl, the wider family wouldn’t encourage her to have a relationship with her dad.
Then, too, the mother seems to have been badly advised. She told the court she would “never
leave” her daughter.
By contrast, Mr Rosa said he didn’t want to leave his job. Magistrate Coker asked him: if there were a choice between staying in the remote town and being closer to the child if she lived in Sydney, would he choose the former? “Yes, I would,” Mr Rosa said. Magistrate Coker asked: “This job is very important to you then?” Mr Rosa replied: “Yes, the job is important to me.” Asked if he would move back to Sydney if Mrs Rosa was given permission to leave with their daughter, he said no.
That being the case, Magistrate Coker decided that the only way the child could have a relationship with both parents was to keep them living in the same town, up north.
He accepted the mother’s feelings of “isolation and depression” but said that if she were allowed to move back to Sydney, it would have a “serious and detrimental effect upon the very close and important relationship” between father and daughter.
Mrs Rosa appealed the decision in the Full Court in Townsville on May 15, but lost, with the judges ruling there had been no error in law. The case raises interesting questions: what happens if Mr Rosa decides to take a mining job in a different remote location? Must the mother go with him?
Rosa v Rosa isn’t the only case of its type. Also this year, a mother was restrained from moving from Sydney to the Hunter Valley, where land is cheaper and because she wanted a country life for the children. The judge said, and many would agree, that the move would make it “impractical for the father to spend substantial and significant time with the children”.
He restrained the woman from moving more than 30km from the Sydney GPO.
Where the burden falls
Michael Green QC has a personal history with the bitterness of divorce, and his book Shared Parenting encourages parents to work
together after they split, saying warring parents do near-irreparable damage to their children.
He also acts for many fathers, and says he does so because divorce is “agony” for children. He campaigned for the new laws. He understands that parents may feel “there’s been an injustice” if they can’t move freely after divorce, or if shared parenting messes with their preferred routine, but says it’s better the burdens of divorce fall upon the shoulders of parents rather than on their children.
On the other side of the argument is former Family Court judge Tim Carmody, who resigned from the court recently in part because he felt he could not do what was required of him under the new laws. He believed he would have to make orders that would tie women to violent ex-partners, and that some fathers would use the law – and their children – to harass their ex-wives.
Under the new laws, a mother who raises an allegation of violence but cannot prove it can expect to be hit with court costs.
On the face of it, that’s fair enough: why should a woman who wants to deny the father access to their children be able to force him into an expensive court battle over allegations of abuse that might not even be true?
On the other hand, some worry that the laws may prevent genuine allegations from reaching court. The Family Court’s Chief Justice, Diana Bryant, acknowledges the concern, saying the law “may dissuade women from raising issues of violence and abuse” either because they fear being hit with the cost of a failed case, or because they don’t want to be seen as hostile towards their ex-partner, lest they lose custody of the children.
Anticipating the possibility of teething troubles, the Howard government built a review of the law into the legislation.
That review, which was to start after the amendments had been in place for two years, is being conducted by the Australian Institute of Family Studies, which is due to report in December.
It’s clear that the Rudd Government has its own, perhaps different, concerns about the law. In July, Attorney-General Robert McClelland ordered a second review of shared parenting, citing the case of a little girl thrown to her death from Melbourne’s
West Gate Bridge, allegedly by her father, who now faces a charge of murder.
Her parents had come to an “agreement” about access to their three children – which gave the father less time than he wanted – a day before the four-year-old was thrown from the bridge.
McClelland was at pains to say the review would focus on whether the safety of children was still paramount under the new law. “There will always be differing perspectives about how our family law system should function,” he said, announcing the review. “That’s especially true for those individuals and groups directly affected y the laws and processes.”
Both sides of the debate are now gearing up for a new round of lobbying. Neither side wants to be tagged with old labels, but for ease of future reference, the divorced men, who want more time with their children, call themselves the Shared Parenting Council.
The women, who believe mothers shouldn’t be tied to their ex-partners for life, have formed the National Council for the Children of Separated Parents. Fathers fear a rollback. Mothers are hopeful of change.
In the middle, as ever, are the children.