Updated 11 August 2021
In the case of Ralton v Ralton, the parties, Mr and Mrs Ralton, were in relationship from 2005 to 2009.
During the relationship, the couple had two children; a son and daughter.
The son and daughter were aged three and one respectively when their parents separated, and the children remained living with their mother.
Court records note that the parents’ households and approaches to raising their children were very different.
Mrs Ralton’s parenting was described as ‘intense’.
She was very involved with her children’s lives; organising extracurricular activities such as sport, birthday parties and allowing the children to sleep in her bed when they were upset.
In contrast, Mr Ralton, described as a ‘physically large man’ and ‘imposing’, used colourful language at home. His style of parenting was described as ‘[a bit more] rough and tumble [than the children were used to at their mother’s house]’.
Notwithstanding the difference in parenting styles, Mr Ralton told the Court that he wanted to have a relationship with his children, but it seemed everything he did was taken the wrong way by Mrs Ralton.
Ralton and Ralton – Fathers Rights
It was difficult for Mr Ralton to make a contact regime work.
For example, Mr Ralton would call the house but the children -particularly the son- refused to come to the phone.
Furthermore, on several occasions, Mr Ralton would arrive at the house to pick up the children for weekend visits, only to discover that their mother had taken them to a birthday party instead.
A counsellor was assigned to the family to aid the parents in working out contact issues.
However, despite court orders, there was no contact between the father and his children on Father’s Day 2015 or Christmas Day 2015.
In February 2016, the son, now aged 10 years old, ran away from school after informing his schoolteachers his father had assaulted him.
The boy also called emergency services and told police officers he would not go with his father because he was frightened.
After the police investigation, no evidence was found that the father has assaulted the children.
Orders from the Court arranged for more family mediation, but this only led to the son refusing to participate and ‘kicking and screaming’ when he was told that he had to attend a supervised visit with his father.
Additionally, the daughter, who had initially been happy to have contact with Mr Ralton, began wavering after her brother’s strong resistance to spending time with their father.
Around this time, two psychologists became involved and their expert opinions concluded that the boy was ‘not free’ of the mother’s views about her ex-husband.
Mrs Ralton often reacted negatively whenever Mr Ralton called the house- making it clear she disliked him- and accepted invitations to school birthday parties deliberately on the weekends that the children were supposed to be with their father.
By the time the final court date arrived, the boy was in such distress that police officers had to accompany him to a ‘safe and contained environment’ within the courthouse because he did not want to go inside.
Change of residence from the mother to the father
The court found that although forcing the children to live with their father could leave them ‘devastated’ in the short-term, if the children were left in their mother’s care, this would effectively remove the father from the children’s lives.
The Family Court was not prepared to remove the father from the children’s lives.
Hence, under the 2006 Shared Parental Responsibility Amendments of the Family Law Act, Judge Riethmuller changed the children’s residence from their mother to their father’s.
This was on the basis that there was a concern that the mother’s active discouragement of a relationship between the children and their father was putting the son and daughter’s psychological development at serious risk.
Effective immediately, the children were to live with the father, who was permitted to enrol the children in a new school closer to his own home.
Contact the mother was not allowed for six months, except for two hours on her daughter’s birthday and four hours on Christmas Day. Both these contacts would be supervised.
Eventually, the mother’s contact time would increase to two hours a fortnight, supervised at the contact centre.
Provided there were no issues, court orders allowed that in time, Mrs Ralton would be able to see her children every other weekend and during the school holidays. However, it is possible that the children will never live with their mother again.
What effect did this case have on future family law decisions?
The Ralton v Ralton case demonstrates how far the law has come in 10 years.
Whereas in the past, fathers were lucky to have contact for one weekend every fortnight and half school holidays, the application of shared care amendments means that if mothers do not support the children seeing their father, the children can be removed from her care.
In essence, the family law system in Australia has seen an increased emphasis on the children’s right to a relationship with both parents over how the parent feels about one another. Courts may remove the care of children from one parent if that parent is actively denying the other parent of contact with the children or discouraging it.
Parents can be fixated on the idea of ‘my children, my children’, and in doing so, lose sight of the children’s rights to know both of their parents.
It is likely that the amendments will encourage parents to mediate and co-operate in parenting matters more equally.
This will be aided by the compulsory mediation and relationship centres that were also established as part of the shared care regiment.
In 2006, the Howard Government introduced the Family Law Amendment (Shared Parental Responsibility) Act 2006 in controversial circumstances.
It remains the most radical change to Australian Family Law since the original Family Law Act 1975 (Cth) was introduced by the Whitlam government.
The Shared Parental Responsibility amendments state that when making a parenting order, a court must apply a presumption that it is in the child’s best interests to have a relationship with both parents.
Exceptional circumstances such as family violence or abuse will mean the presumption is not applicable.
The idea behind the Amendment is to encourage amicable co-parenting and lessen acrimonious disputes which are mentally and financially taxing for all parties involved.
The application of the shared care amendments, however, has led to radical action by the Courts.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.