Laws of Eve | Fair parental access is important

The biggest challenge in settlement negotiations is usually the need to get past the parties' desire to have all or nothing to that point where they are prepared to compromise. Often, in family matters, attempts to settle are more challenging because emotional and other issues fuel the parties' contempt for each other and cloud their better judgement.

Family matters that involve the custody, care, and control of children can only be settled if parents focus on solutions that will make the children's welfare a priority. That usually means that each parent accepts that children benefit most from arrangements that allow them to spend time with both parents. While this does not mean that the children must have equal time with each parent, it must involve a fair opportunity for the parent with whom the children do not reside to see those children. Otherwise, there is a risk that the children will become alienated from one parent.

Alienation

The feeling of alienation by one parent often leads to court action; and this is what happened in the Australian case of Ryder v Donaldson [2018] Fam CAFC 260. The mother had refused requests for the father to spend time with the child, even when a court order required her to facilitate that access, because she feared that the father had sexually abused the child, and the father commenced court proceedings. The judge found that the father had not sexually abused the child and that there was no unacceptable risk of sexual harm, and awarded sole custody of the child to the father, with supervised access to the mother.

Although the case was heard in another jurisdiction and the laws are not the same as those in Jamaica, there are some important points that were made in the judgement that we should reflect on.

The mother's steadfast belief that the child had been, or was at risk of being, sexually abused by the father, although there was no evidence to support such a view, weighed in the father's favour.

It also did not help the mother's case that there was evidence and her past behaviour in refusing the father's access with the child, her deeply entrenched negative views about the father and her unwavering belief that the father was an unacceptable risk of sexual harm to the child.

The judge found that, if the child continued to live with the mother, then she would not facilitate time between the child and the father.

The mother's history of anxiety and nervousness led the judge to conclude that, even if she tried to accept the findings of the court, it is unlikely that she would be able to do so at least for a significant period and [the child] would continue to be exposed to her anxiety and nervousness and propensity to jump to conclusions. Unfortunately the mother's support network are equally prone to jump to conclusions.

The Court of Appeal upheld the ruling in the father's favour and even ordered the mother to pay his costs.

They say that, "a word to the wise is sufficient". For any parent who prevents a child from spending time with the other parent, the risk is that a court could correct that situation by awarding custody to the parent who is being denied access.

- Sherry-Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes, Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.