Judge writes to the children about his tough custody decision

In a recent custody decision, of Gaylard and Cain a Federal Magistrate has taken the rare step of writing a letter to the children explaining his decision.  

After allegations of sexual abuse by the Mother, the court ordered the Father will only have contact with his children via letters, cards and gifts - even though he did not believe the abuse had occurred.

This is the letter he wrote:

"Dear X and Y,


After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably won’t read it for many years.


The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.


At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a person’s heart.


At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I don’t think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.


I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.


By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways.


Yours faithfully,


Federal Magistrate Altobelli"


Cases involving allegations of sexual abuse or other forms of family violence are some of the hardest decisions court have to make.  So are relocation cases.  This case involved both. 

On one hand there is the risk to the child of being exposed to violence.  On the other is the risk associated with them not having a relationship with both of their parents.

Federal Magistrate Altobelli expressed the difficulty of the decision in these terms:

I"n a case where there are only poor alternatives, the children will be exposed to inevitable change. The focus of this consideration is the likely effect of change on the children, particularly but not limited to separation from parents and other significant persons in their lives. On the father’s proposals the change for the children is manifold and intense. They would be removed from their primary carer, and placed in the care of a parent they want nothing to do with. This is physical and psychological change of monumental proportions. In order to cope with this they would need to be supported in this change by both parents, but neither are capable of doing this. The father could not explain to me a considered strategy for coping with this sort of change. I fear the mother would neither accept nor cope with such a decision. All the therapy in the world would not be enough, in my opinion, to support the children and their parents through this change."

It is intereting to note, in the context of the recent case of Garning (discussed here) where there have been cries for the children's wishes to be followed, due to the children in this case being "alienated" from their father, the Federal Magistrate expressly gave no weight to their wishes:

"The children have expressed views in strident terms. They want to spend no time with their father, and want no communication with him. As Dr K. acknowledged in his oral evidence, their views need to be understood in the context of their alienation from their father. He explained that one day their views might change. Whilst I accept that, at the present time, the children want nothing to do with their father, I do not decide this case because of these views. In the circumstances of this case, in view of the alienation that I find has occurred, there are factors that predicate no weight being given to these views."

This is another example of the cases that the Family Law Courts have to decide daily.   There are options to resolve cases out of court.   Contact me to find out more about settling divorce or custody out of court

International Child Abduction

Unless you have not been online, seen a TV or read a newspaper this week, you would be aware of the case of the ‘Garning’ family.

The purpose of this post is not to argue the rights or wrongs of either side of the argument, but to explain in simple terms the legal aspects of the case.

Australia is a signatory to the Hague Convention on International Child Abduction (the Hague Convention).  The convention has a mandatory requirement that if a child is removed to or retained in a convention country, without the consent of the other parent, then the child must be returned to the country they were living in before the removal or retention.

Australia does not enter into a convention arrangement with signatories to the Hague Convention until satisfied that the other signatory has appropriate domestic laws to deal with ‘custody’ cases.   Currently there are 8 signatories Australia does not yet have arrangements with – one of those is Singapore.  Here is a list of the countries we have the convention in force with.   Note that Malaysia is not one of them.  Hence Jacqueline Gillespie (now Pascarl) was not able to use the convention to force the return of her children when they were abducted by their Malaysian Prince father.

There are some limited exceptions to the mandatory return requirement.   It is a hard hurdle to overcome.  It is designed to prevent child abduction and ensure that parents use the courts of the country they are living in, to determine ‘custody’ issues.

In the Garning case, it has been said that the Australian Government helped the Mother and 4 children flee from Italy.  The judgment simply does not support that contention.   The Mother tendered hundreds of pages of documents from the Department of Foreign Affairs and Trade (DFAT).   The court was satisfied that the documents show that DFAT assisted the Mother to confirm the children’s Australian citizenship and obtain passports, but made it clear that she needed the Father’s consent to take the children from Italy.   This was no cloak and dagger operation by the government to smuggle them out of the country.

Where the Mother’s case really fell down was here:

She said the Father consented to the children moving permanently to Australia and that he later simply changed his mind.

She said she had a witness who was a very dear friend who would give evidence that she witnessed him sign the passports and say that the children could go.

However, there was no affidavit produced of that witness – at the hearing or the Appeal.

The Mother also gave a media interview after she moved to the Sunshine Coast.  In that interview she described how she had told the Father they were going on a holiday only, so that she could get out of the country.

The weight of evidence stacked up against her.

There are circumstances where children’s wishes can be taken into account.   The Garning children were interviewed by an independent report writer and their views placed before the Court.  Those views were not found to be sufficient to justify them remaining in Australia.    It is important to note that in domestic family law cases, children’s wishes do not determine the issue – they are only one of a range of factors the court takes into account.

The next avenue of appeal is for Ms Garning to seek leave to appeal to the High Court of Australia.  There is no automatic ‘right’ to an appeal to the High Court – the court has to be satisfied that the matter is important and significant enough for them to hear it.   There are a lot of knockbacks.

Unless she is successful, the children will have to return to Italy (note: to Italy, not to the Father...) and the Italian courts will determine the appropriate arrangements for them.

Facebook or Face facts?

The advent of social media has added a new element to 'custody' disputes in family law courts in Australia and - judging by articles from commentators in other countries - in many other regions.

As this article discusses, the value of so called 'evidence' gathered from Facebook is questionable. And for those who think it is a good idea to get a friend to friend your ex on Facebook to gather sordid details to put before the court - this is generally not going to win you brownie points.

Why?

Well, for the same reason that the court doesn't have much sympathy for a spouse who claims that their ex must be earning more than they say they are from the (former) family business because "we always took cash under the table when we were together."

Or the person who claims an asset it only worth $500,000 yet their statement of position to the bank when they applied for a loan declared it at $3million...

When parties cannot agree on what is best for their children or how they should divide their property, unfortunately the court has to decide for them.

If it comes to that stage, if you and your ex disagree about facts, you want to have real evidence to prove it. As a judge of the Family Court used to say to clients when he was a barrister "if you want something in life you have to tender the right currency - and the currency of the Court is 'evidence'."

I have a very simple analogy I use to explain this:

If you say the cow is brown and he says it is black and white, the only way to prove to the judge what colour the cow is (short of bringing it to court - which would not 'moo-ve' the judge in the right direction!) is to produce a photo of the cow that you both agree is the cow. The judge can then see the colour of the cow.

If you don't produce a photo of the cow, then it is your ex's word against yours.

You may think that you have a strong case but beware - your case is at its strongest before you step into the witness box to be cross examined by your ex's lawyer (who can be best described as a pit bull hoping to tear your case to shreds. If you think it will be a walk in the park, ask a room full of lawyers how many of THEM would like to be cross examined!)

If you have at any stage stretched the truth, elaborated a little or acted less than honestly, be assured your ex's lawyer will latch onto that (even if it is irrelevant to the issue being decided) to try to persuade the court that you are 'less than truthful' and therefore if it is your word against your ex's, to believe your ex.

The title of this blog is 'Brisbane Collaborative Law' for a reason: because there is a way to resolve disputes without the stress and warfare that litigation often generates.

But if you are unfortunate enough to already be embroiled in litigation, remember that honesty is valued by the court.