children a proprietary interest

There is a common misconception that parents have ownership rights when it comes to their children.

Few people will be able to forget that ominous day in 2009 when little, blonde-haired Darcey Freeman was thrown from Melbourne’s West Gate Bridge by her father, in what was said to be an act of vengeance against Darcey’s mother. 

Similarly, who could clear their mind of the tragedy that occurred in Canada in 2010 when Australian woman Allyson McConnell drowned her two sons, aged 10 months and 2 years, in the family bath tub? Reportedly the McConnells were in the midst of a parenting dispute whereby Curtis McConnell was trying to prevent his wife from returning to Australia with their sons.

Both parents are said to have loved their respective children with reverence.

With each tragedy we were left asking “why”? Why had these parents engaged in such extreme acts of violence against their children who they supposedly loved more than anything else in life?

Putting aside the (very serious, and very real) issue of mental health, is there an element of parents treating their children as a proprietary interest?

At the forefront of this notion, is the legislative concept of “equal” and “shared” parenting in post-separation situations.

The concept of equal shared parental responsibility refers to parent’s responsibility when it comes to the decision-making in relation to major long term issues in a child’s life (such as where the child will attend school, and what medical treatment they may or may not receive).

When making a parenting order, the court must begin with the presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility. If the court considers that the presumption should apply, then it will consider the practicality of equal time with each parent.

The provisions of the legislation clearly encourage the participation of both parents, albeit always subject to the best interests of the child, but really how often does this actually happen?

The truth is that the ideal does not always match reality. Further to this (and much to the surprise of many parents) is that the legislation is actually intended, not to provide rights to the parents to have time with their child, but rather to ensure the child’s right to have a relationship with both parents is met.

During Arthur Freeman’s trial for the murder of his daughter, much weight was placed on the parenting dispute settled the day before Darcey’s death. The court heard that Freeman, following the settlement hearing, engaged in a phone conversation in which he “spoke through tears” and told his friend that he felt his “children had been taken away from him”. Further evidence presented to the court revealed that Freeman’s last words to his former wife, before throwing Darcey 58 meters to her death, were “you will never see your children again”. One final act of ownership?

It is a continuing challenge in the Family Law system to address the misconception about parents having a proprietary right to their child. Terminology such as “equal” and “shared” in the Family Law Act does little to displace those beliefs. The problem with the terminology is that it treats children as objects, and in turn perpetuates angst and loathing for parents going through the personal upheaval of a relationship breakdown.

Consider for a moment, the notion that the court should evaluate each case on the individual facts, rather than starting from a (arguably) false presumption that parents should parent “equally”. What the current legislation does is reflect the desires and interests of the parents and raises expectations of fathers considerably as to the prospect of equal time parenting.

Maybe, just maybe, if Freeman did not consider his daughter as a proprietary interest in his dispute with his former wife, he may not have been driven by vengeance to such an unspeakable act.

Culshaw Miller Divorce and Family Lawyers Adelaide provide tailored advice regarding all aspects of parenting issues. If you require advice regarding parenting arrangements, or in any area of family law, please phone (08)8464 0033 to make an appointment with one of our specialist family law practitioners. www.culshawmiller.com.au