“Fathers fight back”

“Fathers fight back”

On Tuesday, I posted an article about how the Australian reported on a Family Court case where the judge removed the children from the mother’s care and placed them with the father.

In today’s paper, the Australian describes it as “fathers fight back”- it them goes on to say how the decision is “extraordinary” and as a result of the 2006 amendments to the Family Law Act.

The judge removed the children from the mother. This was Caroline Overington’s commentary:

There was nothing in the judgment to suggest the mother had denigrated the
father, only that she hadn’t encouraged a good relationship between the children
and their father. The girl told her court counsellor that she didn’t like that
her father had left the family and now had a new girlfriend, whom she didn’t
like either.

It was then suggested that the court had taken into account the 2006 amendments to the Family Law Act:

They say that children “have the right to know and be cared for by both parents,
regardless of whether their parents are married, separated, have never been
married or have never lived together”.
Children also have a “right to spend time on a regular basis with, and communicate on a regular basis with, both their parents”.

The starting point with this judgment, as reported by the Australian, is that it is not extraordinary. Recently I recall a judge responding to my suggestion that some cases were quite simple: “But the decisions are still hard.”

The reality is that judges have to make decisions guided as to the best interests of the children. This may not be in the best interests of their parents, and there are a whole host of competing factors. The courts have weighed up, for a long time, the issue about how a parent encourages a relationship with the other parent. The Family Court has long recognised that residential parents have a positive obligation under orders to ensure that children are able to spend time with the other parent, and that the burden of compliance with the orders is not thrust upon the child and the other parent.

The Family Law Act has also long recognised that in considering the best interest of children, one of the factors is the attitude to parenting demonstrated by each of the parents.

Although there were extensive amendments in 2006, referred to by the commentator, the actual amendments referred to in her piece were made in 1995 and took effect in 1996. The quoted 1996 amendments reflect commonsense, and are always subject to the best interests of the child.

Kelly’s comments

The Family Law Act has long taken into account domestic violence. Domestic violence in the presence of a child has been deplored for as long as I can remember (at least since 1985), and by 1994 the Family Court held the view that violence not in the presence of a child could also be quite harmful.

In 1995 the court held that a parent who engages in domestic violence or denigration of the other parent is, on the face of it, by virtue of being a role model, unfit to be a custodian.

Following the 2006 amendments, the Family Law Act says that a primary factor in considering the best interest of children is:

the need to protect the child from physical or psychological harm from
being subjected to, or exposed to, abuse, neglect or family
violence
.

I would have thought that assaulting a partner whilst the partner was holding the child would clearly be exposing the child to family violence, and on the face of it inappropriate for that person to have equal time.

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Family Law Section Law Council of Australia Award
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International Academy of Family Lawyers - IAFL
Mediator Standards Board