Thursday, 2 April 2009

"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.

2 comments:

kath said...

The father attacked the mother at a changover in front of child f/c psch comment -you should have got someone else to do changover.
Child returns to mother with 3rd degree burns to eye f/c psych comment - you should not have had the child treated by doc because it made the father look bad in the childs eyes,the father constantly denegrates the childs family, the psych is going to recommend the child be allowed to visit the father with no conditions. The family court does not follow it's own act or guidlines and children are being put at risk.What do we put on the childs headstone " The family Court made a mistake"

ms gray said...

What a load of rubbish you journalists write i have had first hand experience of the routine abuse and utter contempt that judges treat victims of domestic violence through your family court system. For some reason it as okay to pay me for the post traumatic stress diosorder that i now have as a result of being raped by the father in front of the child - but apparently the father in spite of a violent and drug police record is a suitanble person to have 50% shared care of a small child. Not suprisingly Docs are now investigating the father fort neglect and abuse - however after visiting varios lawyers i am told yet again there is nothing they can do as the court DONT want to maccept that nearly 75% of what they now see through the courts are victime of some sort of abuse. Australia you should hang your head in shame at the total disregard that the government have put in place to protect those that abuse their children, supposedly in the name of the childs right at knowing both parents. What crap every other western country has thrown out the assumption of shared care for the very fact that evrey family is different. It seems that Australian Judges are lazy and basically opt for the shared care because they then dont really have to make a decision despite the fact that they are paid by the taxs we pay over 200k to make these very decisions. I wlould like to see some honest journalism highlighting the personal wars that some judges are waging in the family court, it is simply not good enough to accept that the treatment people recieve in the family court depends on the judges personal views on wether they are pro woman or pro men - that is simply unacceptable and is an erronous use of discretion that should be stamped out. I would also like to see some of these cases assessed a few years after these judges have made decisions to see how those children have faired psychologically. I suspect that it would be very damning reading!