Encouraging signs in Oz after family law reforms

Fathers benefit from new family law rules
Reporter: Sabra Lane

MARK COLVIN: New family law rules came into effect two months ago, designed to give children more time with their non-custodial parents, most often the father. The new regime's known as "shared responsibility".

The courts are starting to hand down judgements under the new laws. It's too early to assess overall trends, but there have been some interesting decisions and it seems fathers are getting a benefit from the changes.

A week ago, the Federal Magistrates Court ordered that a mother could not move her children interstate because it would stop the children from having a meaningful relationship with their father.

Another judge recently ruled that a father who'd previously had access to his child just once a fortnight should now have custody during school holidays, on special occasions like Easter and Christmas, and on birthdays.

Sabra Lane reports.

SABRA LANE: Family bust-ups can be really ugly with lengthy, bitter court battles costing hundreds of thousands of dollars.

Legally, reporters can't identify individuals involved in family court matters.

This man, known as BJ, was one of the first cases under the revamped family laws.

His voice has been disguised to keep his identity secret.

Before July BJ saw his child just once a fortnight.

BJ: I want to be in her life. I want to see her grow. I want to do homework. I want to take her out. I want to take her to school. I want to go to excursions. I want to do everything with her.

Just because you separate and you divorce doesn't mean the father hasn't got a right to see his child.

SABRA LANE: But the Family Court recently ruled that had to change.

BJ explains how often he sees his daughter now.

BJ: Half of school holidays, special occasions, birthdays, her birthday, Christmas, Easter, Friday, Saturday, Sunday and Monday after school.

SABRA LANE: Two years ago the Federal Government held a parliamentary inquiry into child custody.

It heard research that one in four children from broken homes only had contact with their dads once a year.

The inquiry resulted in new laws where courts had to consider giving equal time with both parents where possible, or substantial and significant time to non-custodial parents.

Barry Frakes from legal firm Watts McCray helped BJ with his case.

BARRY FRAKES: He really felt that the court had heard what he had to say and recognised the need for the child to have a real relationship with him, which was more than a visitor kind of relationship.

The court doesn't talk about 'access' any more, it talks about the time and makes sure that there is a 'meaningful' relationship.

So important events, holiday times, but also just the day-to-day stuff that happens during the weekdays is also important to kids.

And so the arrangements for that child in that case meant that the father could be really part of her life, day-to-day.

SABRA LANE: BJ battled his wife in court for three years, and until May this year he handled his case without a lawyer.

While happy with his ruling, BJ encourages other dads to resolve their problems without lawyers.

BJ: Do not go to court. It cost me $100,000 to fight in court. Communication is the most important thing. Leave solicitors out of the conflict.

SABRA LANE: Lawyers are also analysing another decision handed down last week by the Federal Magistrates Court.

It ruled a mother couldn't move her two children interstate, more than 1,000 kilometres from their father, because re-locating to another city would deprive the children any chance of a meaningful relationship with their dad.

Barry Frakes also represented the father in this case.

He says research prior to the new legislation, showed most contested relocation rulings favoured the parents who wanted to move.

BARRY FRAKES: In 76% of those cases the court permitted the relocation. In this case, the court decided that it wasn't in the best interests of the children to permit a relocation, and in the circumstances I think that reflects the direction of this current legislation, that it's going to be harder for a person who wants to move to satisfy a court that the children will still have a meaningful relationship with the other person when they're not seeing them for many months at a time.

SABRA LANE: Principal Solicitor with Women's Legal Services NSW, Janet Loughman, says she's not surprised.

JANET LOUGHMAN: We've been expecting the pendulum to swing, I suppose.

They're very difficult cases, weighing up really difficult competing interests but our experience has been that the courts are always more willing to place restrictions on the movement of the resident parent, usually a mother, than they are to place similar restrictions on contact parents, usually fathers. So I suppose, not a surprise.

SABRA LANE: Women's Legal Services NSW now wants further changes to the Family Law Act, particularly in relocation cases.

While courts place the child's needs first, Janet Loughman says they should give equal weight to the emotional well-being of the parent whose freedom is restricted.

JANET LOUGHMAN: We're pushing for an additional factor to be taken into account in these kind of cases, so that sufficient weight is given to the link between the welfare of the child and their primary carer, whether that be the mother or the father, and the effect of the refusal to allow a relocation also should be part of that decision.

SABRA LANE: Barry Frakes believes we could be witnessing a major change in Family Law, with courts now favouring fathers.

BARRY FRAKES: In some respects, people would think that the decisions might have been made under the old law in the same way, but I do think that the judgements themselves reflect that the court is taking seriously the need for fathers to have a meaningful relationship with their children.

MARK COLVIN: Lawyer Barry Frakes ending that report from Sabra Lane.

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