- From: Sunday Herald Sun
- January 10, 2010 1:22AM
- 22 comments
The case will spark renewed debate about family law and the issue of shared parenting.
The father, who we will name "Bill" because he cannot be identified for legal reasons, is described by a Family Court judge as no threat to his daughters, a successful parent who is "courteous" and "intelligent".
The same judge found the mother, whom we will call "Jasmine" and who abandoned her first daughter at two and spurned the child's subsequent attempts at reconciliation, had displayed "dreadful", "cruel" and "malicious" behaviour.
But the judge still ruled that because of time spent apart, the children had become estranged from their father and it was in their interests that "the children spend no time with the father".
This was at odds with a ruling in February 2008 that Bill should have contact with his daughters.
But in last month's ruling, the judge said: "The necessity to preserve the children's physical, emotional safety and welfare is overwhelming. However unsatisfactory this outcome is for the father, it is the outcome most aligned with the children's best interests.
"In addition, it is the only outcome which will afford the girls the peace they require now while permitting some possibility of a relationship between the father, (the children) and their siblings in the future, however long term that may be."
But the judge added: "It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well-motivated best performing parent."
Bill has not seen his daughters since April and has not spent extended time with them since August 2005.
He says the estrangement was largely a result of false allegations of sexual abuse of the children made against him by his former wife.
The custody ruling in the Family Court last month came after a seven-year battle over access to the girls, now aged nine and 11.
It followed a criminal trial in 2007, when Bill, 55, was cleared of the sexual abuse allegations. The trial judge found them totally false and threw the case out.
The ordeal has cost Bill his home, his job and about $450,000 in lost income and legal costs. He has faced court 70 times to clear his name and try for some form of access to his children.
"It has been a nightmare. All I wanted was to be part of my children's lives - to try to give them a good start in life," Bill said.
"But I am denied that because of the malicious way in which my ex-wife has acted and because of the credence the legal system has given her lies and falsehoods.
"The family law system needs wholesale change. There appears to be no testing of evidence in court and it seems that often lies and fabrications are immediately accepted as fact.
"It's a disgrace and, as far as I know, it doesn't happen in any other legal sphere."
Bill's case follows the case of "Steve" last year, in which the court accepted his good character, but banned him from seeing his daughter for seven years because it was believed the mother would "shut down" emotionally if he were allowed to see her.
In another case last year, a father, "Mick", was jailed for sending a birthday card to his daughter in breach of a court order and was locked up again for taking a walk in a park - near where, unknown to him, his daughter was playing.
Debate over the operation of family law has become heated over the past year with a new campaign seeking to overturn amendments to the Family Law Act brought in by the Howard government that have established the principle of "shared parenting" and effectively given fathers a better chance of having greater access to their children in custody disputes.
Historian and Family Court critic Prof John Hirst questions the underlying principles in family law.
"The Family Court by law has to make the children's interests paramount in divorce cases. Everyone thinks this is wise and proper, but to elevate one principle above all others can produce terrible results," he said.
"To stop mothers being tempted to make accusations of sexual abuse and so keep children to themselves, the law should state that any parent making false accusations of this sort will lose the right to be chief carer of the children. If a mother has so turned the children against the father that they don't want to see him, for a time at least the children should be taken into care.
"Even on the present test of child's best interests, it is hard to see how a child will benefit from being left with such a mother. She has burdened the child with the story that her father abused her.
"Then when the child comes of age she will discover that the mother's accusations were false."