Altobelli’s Dilemma: The failure of Australian family law

On May 30, 2012 Federal Magistrate Altobelli gave his reasons for the judgement he made in Gaylard v Cain in the Federal Family Court of Australia (Altobelli, 2012). This judgement showed that, beyond all doubt, the Family Law system is corrupt.

The overall result of the decision is that the mother has sole care of the children and the father is banned from making any contact with them. Clearly uncomfortable with his own decision, Altobelli decided to write a letter to the children explaining his decision and urging them to seek a relationship with their father.

No, you read the last paragraph correctly. He banned the father from seeing the children. Then, he wrote a letter to the children saying you should see your father.

In this letter, and in his judgement, he describes his own anguish at not being able to find a better solution. The conundrum, if you take it at face value, is this:

The law states that the children must have a relationship with both parents unless there is a realistic danger of abuse. The mother claimed that the father is likely to sexually abuse the children.  According to the magistrate (in paragraph 2 of his judgement) this “perception of the father is based on illusion not reality.”

What is very real, however, is that the mother has alienated the father from his children by turning them against him. This has resulted in the children making statements to the effect that they want nothing to do with their father.

Thus, the proper application of the law, that the children should have a relationship with both parents, will put the children under dreadful stress if they are compelled by the orders to see their father.

What is a poor magistrate to do?

Altobelli’s view is, in the paragraph 1, “In any event the orders I make in this case bear scant resemblance to any idealized notion of best interests and look pragmatically more like the least worst alternative.”

Altobelli’s judgement, however, is disingenuous to say the least, and it shows how the legal system is a complete failure at its core. There are so many reasons for this failure that it is hard to count them all.

Here are seven that spring to mind.

First, it is clear from Altobelli’s statement above that the law’s primary objective, that the orders must be made in the child’s best interest, has been thwarted.

The thwarting has come from a corruption of the decision making process itself, which brings us to the second reason.

Courts make legally binding decisions. It is a cornerstone of democracy that these decisions should be based on the facts and the law. The extent that the outcomes of the court are generated by the influence of individuals for their own benefit, rather than the facts of the case or application of the law, is a measure of the corruption of the court.

In this case, the mother is not just influencing the court, but dictating to Altobelli what the outcome should be. By manipulating the children and interfering with the previous attempts to re-unite the father with his children, the mother has essentially established a new status quo. In paragraph 68 Altobelli describers it thus, “At the moment, however, the children’s world of relationships has been drastically changed because of their alienation.”

Essentially, because of this, Altobelli decides to adopt Dr. K’s preferred recommendation of ‘tactical retreat’, which is to leave the mother with her victory of the children, and let the dust settle.

In all practical aspects that affect the children themselves, best interests or not, Altobelli is simply rubber-stamping the mother’s decision, even if it takes him 102 paragraphs of gristle-chewing to do so.

However, this rubber stamping is not simply a benign administrative duty, and leads us to the third reason why the legal system is a complete failure.

The father is now under the shadow of these court orders. If he should try to make contact with the children, a normal thing for a father to do, he will now be guilty of a crime punishable by fines and/or imprisonment. Even if he should accidentally meet these children in a shopping centre, or any other public place, he will be in danger of criminal action simply for saying “Hello”.

The father is in this state, not because he is a danger to his children, or has committed any crime in the past, but because the magistrate allowed the mother to make the decision for him. This is, in effect, a probationary sentence on an innocent man.

The fourth reason is that Altobelli disingenuously ignores one important, and by far the most powerful, actor in the situation: The courts.

Consider this statement from paragraph 8,

It is common ground that the father has not spent any meaningful time with the children since December 2010. Whilst a number of attempts were made to facilitate supervised contact after that date, none were successful.

 

What Altobelli is hiding is that since proceedings began in the courts, before December 2010, the only access the father was allowed by the courts was supervised contact; that the mother prevented this access means that she overrode court orders and the fact that there was no sanction on the mother indicates the courts, by de facto, allowed this to happen.

So the courts provided the mother with unfettered access to the children to break the law by alienating them from their father; and made sure that the father could not interfere to protect his children.

The fifth reason may seem philosophical in nature, but its relevance is seen in Altobelli’s angst.

Rather than being a venue for deciding, with proper rules of argument, what happened in the past, the Family Court’s focus is on what will happen in the future. That the law makers thought this possible, never mind practical, is arrogance beyond description.

Altobelli shows his difficulty with his task in paragraph 82 of his judgement: “On the one hand it was clear that I was contemplating orders that would probably mean these children would not see their father for many, many years, and possibly mean they would not see him ever again. On the other hand Dr K. was stating that in his expert opinion it was likely these children would, one day in the future, want to re-establish a relationship with their father, and make their own decisions. This might happen as early as the children’s adolescence, or during their adult years, or perhaps not at all.”

Clearly, Altobelli has no clue as to the outcome of his decision. Equally as clearly, the expert Dr K is more expert at hedging his bets than predicting the outcome for these children. The only firm statement from the two future gazers is that the possibilities are many, but don’t hold them to that.

The eye to the future, however, is what allows Altobelli to sidestep the mother’s breaching of court orders during this lengthy case, and her refusal to comply with any orders that allow the children access to the father.  In other words, the potential harm in a possible future overrides the very real harm that has happened illegally to date.

However clever Altobelli and Dr K might be, they have no idea what events are in store for the members of the family over the next three weeks, never mind years of constant change as the children mature. To assess how a child will react to something at age 14, when you’ve met them for a day at age 7 or 8 is impossible. There certainly is no single study, never mind a body of evidence, that would support Dr K’s views or Altobelli’s decision.

Altobelli’s conscience clearly doesn’t sit well with him. He therefore writes a letter which is to be given to the children when they turn 14 years old, urging the children to consider seeing their father.

The responsibility, therefore, will fall on a 14 year old child to request Relationships Australia therapists to facilitate some sort of communication with the father, irrespective of the fallout that will occur when the mother finds out. That is, of course, assuming that the mother, who knows about the letter, takes the children to the therapist.

Altobelli again shows his complete inability to assess the future circumstances when he states, “The role of the children’s mother in facilitating or obstructing this [the children reading the letter] is something neither Dr K. nor I can predict or control.”

This brings us to the sixth reason why the court is corrupt: bigotry in the form of misandry informs its decision. I don’t say this simply because the father, being male, lost the case.

Consider how flummoxed Altobelli and Dr. K. were by the mother’s intransigence. Yet the father was not allowed to have his children because, in paragraph 55, Altobelli states: “He [the father] could not convincingly articulate how, for example, he would deal with two alienated children with whom he no longer had a relationship, and who did not want to be there with him.”

For my money, that simply puts the father in the same boat as Altobelli and Dr. K.: he doesn’t know how to stop the mother’s manipulation either. But let us not forget that the father has a bigger problem than the magistrate. His problem in reality is this: how does he counter the mother’s manipulations while the court’s interference empowers her?

Clearly the unstated issue here is that the mother is, after all, the mother; and therefore her relationship with the children comes first.

She didn’t just fail to “convincingly articulate”; she positively assured them that she will make all efforts to continue to break the law by refusing to allow access, and backed up these words by breaking the law. Whatever harm the father might inadvertently do, the mother guarantees intentional harm by deliberately breaking the law.

In other words, Altobelli’s orders are designed to make the mother’s illegal behavior legal. Even if Altobelli’s motivation is blindly gynocentric in its intent, and that’s being kind, it is misandric in effect.

Also consider again the inability to predict the future. What does not come up once in Altobelli’s ruminations about the future is that the father might not be available because of the future choices he might make in his life. No, the magistrate simply assumes that the father will remain, like a stuffed toy, in the cupboard awaiting a summons to participate in a relationship with his children. The father has no other purpose in life.

This brings us to the seventh and final reason why the law is a failure. Altobelli cites the law as directing him to considered these children’s best interests, and not children in general’s best interests.

For this reason he can ignore yet another question: How did the mother know she could be confident that her intransigence would win the day? In most other legal situations defying the court is a recipe for disaster.

Consider another recent case, Summerby v Cadogen that was decided by the Full Court of the Family Court of Australia in October 2011 (Thackery, Strickland, & Young, 2011).

In this case a mother was ordered on four separate hearings to let a father see his child. After each hearing she simply refused to obey the orders. The result, eventually, was to make her illegal behaviour legal by again ordering that the father be banned from seeing the child. This final decision was approved by the Full Court.

So cases like Summerby v Cadogen, and this one, Gaylard v Cain, whether read in the press or heard about on the grapevine, can give a mother full confidence to make baseless accusations to get complete access to their own children. From that position, the mother can win the day by simply refusing to cooperate with the courts and let the children see their father. The courts might threaten. There might be a bit of bluster and criticism.

But, at the end of the day, the courts will most likely fold into a ‘tactical retreat’. So, by feigning a focus on these particular children each time, the court can pretend blindness to its own systemic bigotry, and how spiteful mothers can easily use this to their own ends.

This case shows that the Family Court, and the laws that support it, are fundamentally corrupt.  It intentionally and deliberately ignores the damage that it does to fathers and their children. Instead, it uses all the sanctimony it can wring out of “the best interests of the child” to deflect criticism while it makes bad decisions based on ideology, pop psychology and arrogance.

Bibliography

Altobelli, M. (2012, May 30). Gaylard v Cain. Retrieved June 7, 2012, from Australian Legal Information Institute: http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/501.html

Thackery, Strickland, & Young, J. J. (2011, October 20). Summerby v Cadogen. Retrieved June 12, 2012, from http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/205.html

 

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