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.
Mr and Mrs Ralton (Court-ordained pseudonyms) were in a relatively short relationship from 2005 to 2009.
During the relationship, the couple had two children- a son and a 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 Mrs Ralton and Mr Ralton’s households were very different.
Mrs Ralton’s parenting was described as ‘intense’.
She was clearly very involved with the 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 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 but find out their other 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.
Then, in February 2016, the son, now aged 10m 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.
Further orders by the Court for more family mediation led to the son refusing to take part and ‘kicking and screaming’ when told he had to have 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.
Two psychologists stepped in and both concluded that the boy was ‘not free’ of the mother’s views about her ex-husband.
Mrs Ralton’s behaviour included reacting negatively whenever Mr Ralton called the house- making it clear she disliked him- and accepting invitations to school birthday parties deliberately on ‘dad’s weekends’ and making the children choose what they would rather do.
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 Full Court of the Family Court recently reaffirmed the 2016 decision of the Federal Circuit Court.
They noted the urgency of the matter, claiming it was an outstanding example of a child in distress.
Although forcing the children to live with their father could leave them ‘devastated’ in the short-term as their mother has always been their primary carer, if the children were left in Mrs Ralton’s care, this would effectively remove the father from the children’s lives.
As the Family Court was not prepared to remove the father from the children’s lives, under the 2006 Shared Parental Responsibility Amendments of the Family Law Act, Judge Riethmuller changed the children’s residence from their mother’s 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.
No contact with the mother was 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, her contact time would increase to two hours a fortnight, supervised at the contact centre.
Provided there were no issues, in time she would be able to see them every other weekend and during the school holidays.
However, it is probable that the children will never live with their mother again.
Implications for future family law decisions
The Ralton and 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 each fortnight and half the school holidays, the application of the shared care amendments mean if mothers do not support their children seeing their father, the children can and will be taken off her care.
In essence, the family law has seen an increased emphasis on the children’s right to a relationship with both parents over how the parent feels-regardless if they hate or are bitter towards their ex-spouse.
The emphasis of a single parents ownership of the children, constantly framing them as ‘my kids’ instead of ‘our kids’ means the Courts will have no hesitation in removing the care of the children over to the other parentwhom is actively being denied or discouraged from contact.
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.