17 Nov Child Custody – Is the Family Court Biased?
Another common misconception I come across as a Family Lawyer is “the Family Court is pro-mum… if you’re a dad you have no chance in Court”. From my experience this is the furthest from the truth. When you understand how parenting Orders are made, you will see that this is simply just not the case. Firstly, the Family Law Courts aren’t pro or anti mum or dad. The Family Law Act 1975 is the legislation the Family Law Courts must apply in working out parenting arrangements. It places the focus on the kids, not the parents.
In short, the Court couldn’t give stuff about the parents (and I have heard a senior Justice of the Family Court of Australia forthrightly telling this to waring parents!). The law states that a child has the right to a meaningful relationship with both of its parents. Children also have the right to be safe and not be exposed to the negative effects of parental conflict, drug and alcohol abuse, significant mental health issues or violence. Where there is inconsistency between keeping a child safe and maintaining a relationship with its parents, the child’s safety prevails. Assuming there are no issues of conflict, drug and alcohol abuse, mental health issues or violence a child will have a meaningful relationship with its separated parents. That’s the law. What the time arrangements with each parent will look like depends on:
- The age of the child
- The distance between the parents’ households
- The nature of the post-separation relationship between the parents
- The work and other commitments of each parent
- The views of the child
- A child’s Aboriginal or cultural background
- Any other issue that is relevant
The Courts have to take into account the age of the child. A young child cannot be away from its primary attachment figure (a great future topic I’ll write about in the future) for a significant amount of time as this can cause significant psychological issues for the child. Essentially, the younger the child, the more dependant it is to the person it sees as providing its essential needs (food, shelter, protection etc).
The consequences for parenting arrangements for young children are that the child will live predominately with its primary attachment figure and spend frequent short periods of time with other significant persons (including the other parent). The issue of primary attachment has nothing to do with being anti or pro one parent or the other. It is a recognition that where this fundamental psychological need isn’t met or is hampered, there may be significant life-long consequences for the child. The mother is often the primary attachment figure. This is not because the father isn’t important or doesn’t have an important relationship with the child. It has nothing to do with inter-personal relationships. It is more primeval than that. It is purely biological – the law of survival and goes back through thousands of years of biology.
The mother generally, is the parent who gives birth to the child, is first to suckle, feed and protect the child. For this reason the mother is often deemed the primary attachment figure – although this is not always the case. Modern phenomenons such as working parents, child care, drug and alcohol, mental health issues and family violence means that each parenting case must be assessed on its individual circumstances. Generally though, if the mother is deemed the primary attachment figure, it is important that the child is not away from that person too long as this can cause the child significant psychological distress (and psychological damage). As the Court is responsible for making Orders in the best interests of the child, it has an obligation to take this significant issue into account when making parenting Orders. Obviously, as children get older, the issue of primary attachment is less relevant. If there are issues which means that the primary attachment parent is incapable of caring for the child, the Court will (and does) make parenting Orders removing children even from the primary attachment parent’s care. I have personally been involved in several matters this year alone where I have seen children being removed from the mother’s care and placed in the father’s care.
This has included the Court making no contact Orders against the mother or only allowing her to spend very limited supervised time with her kids in a Children’s Contact Centre (and the judge in both cases was female!). I don’t envy any judge responsible for making parenting Orders, they are often placed in no-win situations with parents focused on their own self-interests and usually suffering a myriad of problems. The Court’s workload is ever increasing whilst funding and resources are ever decreasing, retiring judges aren’t being replaced and complex social problems such as drug and alcohol abuse, significant mental health issues and family violence are becoming all too common. All in all the system is far from ideal but to suggest the Court is biased simply does not reflect the realities of modern Family Law in Australia.