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B & B Family Court Appeal allows mother to relocate: Brisbane July 1997

The "great expectations" of most fathers who have been denied access to their children because the mother chose to relocate many miles away were dashed by the result of the B & B Appeal hearing.

The landmark decision by the Family Court of Appeal allowed the mother of two children to move 3000 klms away to marry her “long lost sweetheart”, formulating their decision on the basis she would be devastated if not allowed to follow her heart and that in turn would affect her parenting abilities. To suggest this decision was based on the principle “in the best interest of the children” is dubious in the extreme.

Both parents received an A1 rating in the 'Family Report' and the children expressed only a slight preference to go with their mother. This latter information was given to the court by the social worker via telephone hook-up. The father's legal team were not given an opportunity to cross examine on this point. Unfortunately, in our opinion, the father had, on advice, withdrawn his application for 'residency' not wishing to give the appearance of 'trying to take the children away from the mother' and the Court was left with little option but to consider the relocation application on its own.

If the residency application had remained in place then the Court could have availed themselves of a little 'lateral' thinking that may have produced a better outcome for the children.

Nobody was suggesting the mother should not follow her heart. She could have gone to her intended spouse, leaving the children in father’s loving, capable care, whilst she established her new relationship. When the stability of the new relationship was proven the question of residency could be revisited, if necessary.

Now the children have been removed from a comfortable, secure life, living in their fully owned house that was provided on separation to the mother to an unknown future and step family situation. No longer will they be able to experience the love and guidance given by their father, the extended family and friends on a daily basis.

It is well known step families are difficult to establish - with children competing for their parent’s attention; parents trying to adjust to one another after living in a single situation for some time whilst delicately balancing the needs of each of the children from the blended family - in reality, a far cry from the idealistic image and solutions presented by “The Brady Bunch”.

Men’s groups were right to view the decision suspiciously. The long awaited changes to the Family Law Act gave father’s some hope of curtailing the various means that are used to deny access, including relocation. Taken together with a previous judgment where a father was denied access totally, not because he was a bad father, but purely for the reason the mother’s hatred of the father was so overwhelming she could not bear to see their children with him indicates the Court is clinging to the 'maternal preference' and the politically correct attitude, engendered over previous years, that women must be protected at all costs.

The judiciary have been subjected to gender education for many years about the problems faced by women, maybe this has had an adverse affect on their attitudes towards men in general. Undoubtedly, they see some men who aren’t particular caring or supportive of their family, but this is no reason to judge all men in the same light. On the other hand, they must also see a number of women who are less than perfect as mothers.

Perhaps the Family Court should be “de-genderised” in an effort to improve their attitude towards fathers as full time parents. Ensuring the Judiciary have a better appreciation in this age of equality, that fathers are just as capable and in some instances infinitely better at caring for their children, would mean they could genuinely apply the abilities of "Solomon", instead of being caught in the delicate balancing act of presenting themselves as protecting the interests of children whereas, in reality they are defending the woman’s position and in this instance giving the mother her freedom of movement.

We question what will now happen to the rights of the child to be cared for by both parents, even if the parties are separated. Obviously diminished by the convoluted argument that a mother’s parenting skill will be affected if not allowed to pursue a course of action, that would appear to be solely for her benefit and in her own best interest.

Bettina Arndt in her article “It’s children first” (SMH 19/7/97) applauds the decision made by the Family Court to allow the mother to move 3000 klms away claiming "the court has taken a step back from an emphasis on the rights of parents to get on with their lives even if that meant moving children away from the other parent." Relying on the Court's rejection of the underlying principle that was established by a previous significant relocation case where it was established "a rule of thumb that custodial parents should generally be permitted to relocate, provided there were good reasons for the move" might on face value give out the right message, but in practicality, the decisions will still be formed on the basis of each Judge's opinion. Whilst the Judge's cling to their maternal preference and disavow the abilities of father's as primary carers we will see little change.

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