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  • Shared care dead as mother stands firm on no access
  • By Caroline Overington
  • The Australian
  • 24/11/2011 Make a Comment
  • Contributed by: admin ( 15 articles in 2011 )
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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.

Shared care of children after divorce was a policy goal of the previous government, but the law is now being rolled back, with key changes to the Family Law Act (1975) passing through the Senate this week.

Under the old law, mothers were sent to prison or lost custody of children when they refused to allow them to have contact with their father. While this is still possible, the full bench of the court has now said that in some cases there is nothing it can do.

The full bench ruled on the matter after a father, known as Mr Summerby, appealed against a 90-page judgment by a Brisbane federal magistrate, Keith Wilson, which effectively ended his relationship with his daughter.

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".

But he ruled that the loss of the child's relationship with her father would be "less harmful than the loss of her relationship with her mother".

He said the child's mother "would not facilitate a relationship with the father and the child, even for alternate weekends, and will actively try to destroy the relationship even if orders are made".

Mr Wilson said he "wrestled with devising some form of order that would see the child spending time with her father on a periodic basis, with changeovers occurring at some neutral place such as a contact centre". "However, I conclude that such a regime would not work," he said.

The court severed the relationship despite finding that the child "plainly enjoys spending time with her father".

Mr Summerby and his former wife, known in court documents as Ms Cadogen, met in Taiwan in 2002 and have lived in Brisbane since 2005. Each has children from other marriages; the five-year-old girl is their only child together.

There were allegations of violence and emotional abuse on both sides. Mr Summerby told the court that he believed that Ms Cadogen's new partner was sexually abusing his daughter; Ms Cadogen said the father was the abusive one.

Mr Wilson said the child had a "close and loving relationship with her mother" and a "good and loving relationship with her father" and concluded that "neither the father nor the mother's partner had sexually abused the child".

On the other hand, there was "violence in the relationship between the mother and the father" -- each accused the other of violence -- and both had "emotionally abused" the child by dragging her into their conflict.

He said "the parents cannot co-parent the child without exposing her to further emotional abuse. The mother will not facilitate or support any relationship between the child and the father."

The father appealed against the decision on nine grounds, including the terrible impact on the child of not being able to speak to him until she was an adult.

But in a judgment delivered on October 20 and published last week, the full bench said the magistrate had been "very careful" and appeared to have "agonised" over the decision before deciding that "none of the proposals made for the father to have time with the child would work".

Mr Wilson acknowledged the "termination of the child's relationship with one of her parents is a course of last resort". He said the result was not "satisfying to the court" and 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".

But, he said, the hatred between the parents meant that "any form of shared parenting would expose the child to further emotional abuse".

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".

Mr Wilson, who has retired from the bench and is now working as a barrister, issued final orders in the case as "the parties have been involved in litigation for almost three years. It ought to be brought to an end."

The only avenue of appeal now is to the High Court.

The "shared care" law was designed to encourage co-operation between parents after divorce, but has been criticised for leaving children vulnerable to violence.

In passing amendments this week that rolled back some elements of shared care, Labor senator Trish Crossin told the chamber the federal government continued to support shared care but "not at the expense of a child's safety".

Liberal senator Brett Mason told the chamber the bill "tips the scale back towards hell".


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