Kangaroo Court: Family Law in Australia #2
by PAUL WALTON
PAUL AND THE 95%
Of all the cases that go to the Family Court, only 5 per cent reach trial. The rest are resolved through mediation or agreement among the parties and the lawyers. Sometimes defenders of the Court cite the low 5 per cent trial figure to show that most people are satisfied with how their cases are settled. This is far from the truth. People settle because they run out of money to pay lawyers (and haven’t got the time and energy to conduct their own case) or they face an allegation that is too hard to fight or they are told they have no hope of winning what they might want. Fathers who want to see more of their children than every second weekend have little hope unless they can argue or allege that their wife is somehow unfit.
So the appetite and predilections of this legal monster control behaviour far from its lair. It is perfectly possible for a man to lose his children without stepping into the Court. Meet Paul Walton who can no longer see his children. He went to the Family Court only once over the custody of his children — to register the fact that he was abandoning his attempt to see them. He was very pleased with how he was treated.
Paul was a businessman and hopes to be so again. At the moment he is living in a tiny Housing Commission flat. When he and his wife separated, he gave her the house because he said he could quickly make enough money to buy one for himself. That hasn’t happened yet — fighting for his kids has been his occupation for three years.
Paul ran the sort of businesses that can be conducted from home. For many years he was, in the Family Court’s term, the primary carer of their two daughters while his wife pursued her career. He is a mild, quiet man who tells of his descent into the abyss in a monotone.
Like many others, he wants me to know how well regarded he was in his previous life. He was president of both the local Rotary Club and the Small Business Council. He did deals on a handshake. No need to sign a con- tract with Paul Walton. When he was selling insurance, he sold five policies on five contracts though they could have been accommodated on two. That increased his sales score. He couldn’t live with himself. He went back two days later and redid the paperwork.
When Paul and his wife agreed to separate, they consulted a child psychologist on how best to prepare their daughters, aged thirteen and ten. The psychologist suggested that Paul acquire his own unit or flat before they told the children and have it set up as a place they could visit. They could then say immediately to them, “Come and look at Dad’s house which will be your house too.” This they did. The children were to have dinner with Paul every Tuesday and Thursday night and stay over every second weekend and for half the holidays.
Three days into the first holiday period Paul and his teenage daughter had an argument. She rang her mother and demanded to be taken home. The mother collected the girl and her sister. She insisted that in future if Paul saw the children she had to be present. He saw them a few times briefly, but visits with the wife present were not satisfactory. The visits tailed off.
Paul let matters ride, hoping the mother would come round. I guess I was too soft, John. I ought to have put my foot down and said if you are not prepared to stick to the original agreement we must get it set out in court. The reason he did not go to court was that friends who had been there warned him that the Court would eat up his money and perhaps still not give him the result he wanted.
Paul wrote letters to his wife and children pleading for the agreed arrangement to be re-established, with no result. So finally through legal aid he got a lawyer, who commenced proceedings by sending the wife a letter. This letter sparked something really surprising. The wife accused him of being “verbally abusive and physically intimidating”. The children wrote in their own hand to say, “You are not our Dad and we don’t want any- thing to do with you.”
Now the man is as mild as Sandy Stone, but I know in domestic matters one can never tell. So I add the wife’s testimony of a few years before, words inscribed in the front of a photo album that was a birth- day present to her husband. Paul brought the album out not to show me this, but photos of his girls. The wife wrote: “What a blessing for the girls to have a father who tells stories, makes cubbies, catches bugs, teaches and listens. Listens and listens. What a blessing for me to have a husband who leads this family with love, devotion and gentleness.”
Paul consulted a child psychologist on how he should respond. He told him: “At best after a long court hearing the younger daughter will be directed to have contact with you, but not overnight because you are now in a one-bedroom place. The older girl can refuse. It is likely that when you turn up to collect your girl, she will not be there.You will have to get another court order.You will collect her from the steps of a police station. Is that what you want?”
He did not want that.
A few months later he made another attempt to bring the wife to negotiation. A solicitor’s letter came back referring to “a long, detailed and disturbing history about the difficulties over the years which are relevant to contact”. He was being set up as mentally unstable. Paul has long had a bi-polar disorder that has been controlled by medication. The solicitor said should the matter go to court they would subpoena his various psychiatrists, psychologists and doctors to produce evidence of his med- ical history. Paul asked his present doctor how this would play out in court. His doctor assured him that he was perfectly stable and he would be happy so to testify. However, the other side could indeed subpoena all his medical records and quote selectively from them. He would then have to bring his previous doctors from interstate and have them testify on his behalf — to give a complete and not a partial account of his condition. The costs would be huge. It would be a battle royal from which the only winners would be the lawyers. Paul did not have the funds for this and Legal Aid would not assist.
Paul’s various advisers knew the Family Court and its methods very well. He still kept out of it.
Paul realised that his greatest difficulty was that his wife was poisoning the girls against him. This practice has received a name: the Parent Alienation Syndrome. The concept has not gone unchallenged. Perhaps the children are not so much brainwashed by the custodial parent; they adopt their hostile views themselves, which is perfectly plausible given their eagerness to identify with the person caring for them. But either way they repeat the objections of their carer parent against the absent par- ent; they “sound very rehearsed, wooden, brittle and frequently use adult words and phrases”. They take great delight in being hostile and rude to the parent with whom they used to be close.
Paul’s last play was to suggest to his wife that he might have the Family Court make an assessment of her and her relations with the children. The next day I received a phone call from my little one which frightened the heck out of me … She phoned me and swore like a trooper, telling me to fuck off for what I was doing to her and her family. That was the end.
He does not expect to see his children again. They’re gone.They have been stolen.The Court could not help me. A guy feels totally impotent.He saw his younger daughter for the last time ten months ago at her school break-up to which he was invited by the school. I was sitting at the end of an aisle. First up were the grade sixers. Because her name is Walton, she was near the end of the queue. I am looking at this child. I had not seen her for eight months and that was only for half an hour at McDonald’s for her birthday with her mother present. I looked at this girl again. She was a lot taller than I remembered; her hair was different and she was thinner in the face.That is my Christina. I tapped her on the shoulder just to say Hi.To let her know I was there. She turned away. She did not say Hello. In documents submitted to the Court the mother objected to his coming unannounced to the school and harassing his daughter.
He and his former wife attended the Court to negotiate the terms on which she would send to him reports of the girls’ activities. This is a standard Family Court procedure: the excluded parent indicates that they will abandon attempts to see their child in return for receiving news of them. Paul wanted these reports to come monthly; his former wife wanted them to be every three months. With the help of the Family Court counsellor they compromised on two months. The counsellor was excellent. She jumped on both of us if we got out of line. She was quite impartial.
Paul has received two reports and has decided that they are almost not worth having. They come as a grid with topics listed in one box and the briefest of answers in another. Paul’s were the first of these reports that I had seen. I could scarcely believe that they existed. To get this information a parent signs away the right to see their children — what a confession of failure by the Court! This man lives in the same suburb as his children; he has committed no offence — and this is all the Family Court can offer him.
