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Children and custodyFamily court

Did a teenager really just divorce her parents in family court?

By November 29, 2018October 28th, 2021No Comments

Actually, no. If you happen to have seen the articles in the mainstream media reporting on this case this week, you’ll have seen it described as a story about a girl “divorcing her parents”. This is however, not really correct.

The case referred to was heard in the Family Court in Sydney and was a narrow, but complex, dispute over a 15 year old girl’s residence which resulted in the court ordering that the girl can decide who she lives with until she is an adult. The fact that the court ordered this does not amount to it being a case of a child “divorcing” her parents.  The truth is that children do not actually divorce their parents via parenting matters in the Family Court.

Instead, the expression “divorcing your parents” is usually colloquially used to relate to the legislation various States have introduced which enables children—and parents–to make applications in Children’s Court that would lead the child to be removed from their parents’ care and placed under State guardianship.

In Victoria, this is known as an application for “Irreconcilable Differences”, in the ACT similar legislation refers to “Serious Incompatibility”, and in NSW it is known as “Irretrievable Breakdown”.

But in the Family Court case described in the media this week, if you read the actual judgment, you’ll see it’s a complicated, sad tale of family dysfunction with themes very common to complex Family Court cases, namely children being at risk of harm, adults demonstrating parental incapacity, and allegations of alienation.

The girl currently has no meaningful relationship with her mother and had been living with the paternal grandmother, where she wanted to remain. The current dispute was between the mother and the paternal grandmother. Parenting arrangements over the girl’s siblings, aged 7 and 10, had already been made in previous litigation and they continued to live with the mother—this particular case did not directly involve them.

But while the court decided the girl should be able to decide where she lived, the girl’s mum and dad were still granted equal shared parental responsibility for all matters involving the long term care, welfare and development of the girl. And depending on whose home the girl decided she wished to live in, that adult would have the sole responsibility for making decisions about her day-to-day care, welfare and development during the time she was living with them.  In contrast, if a child in fact “divorces” her parents in Children’s Court, the State would assume these responsibilities.

The media stories have framed it as a case where a grandmother had stepped up to raise grandchildren after concerns over the ‘dysfunction of the parental household’. But the ruling describes a situation where none of the adults involved, including the grandmother, are blameless in the harm they have already potentially caused and the risk they might pose in future. The judgment explains that the girl “has had a long experience in her life of inadequate adult carers who have exhibited partisan coercive behaviours and who assume to know what she thinks”.

The girl had had a lot of negative experiences in the past with her mother, particularly around her parents’ separation, that had caused her to reject her mother and which the mother interpreted as alienation, but which the experts told the court was more likely to be a mixture of “realistic estrangement” (that is, the child has a valid reason for wanting to reject the parent) as well as alienation.

The mother argued the grandmother presented risk of emotional abuse because of her influence over the girl. The court accepted the expert’s opinion that there was an element of risk of emotional abuse by the grandmother, but said it was “mitigated by the orders that empowered the girl to make decisions for herself about where she lives, and how much contact and communication she has with the other important adults in her life. Moreover, the risk is more than adequately managed by the stability and protective factors which surround her where she presently lives.”

Rather than order the girl into the care of the Department of Family and Community Services—as happened in a recent case where parents argued over custody and each accused the other of being a risk to the children, in this case, the judge said:

“It is both unnecessary, and unproductive, to stir up the coals about risk of harm issues…the period of risk for all three children has now hopefully passed. The younger children are in the mother’s care and the girl can choose where she lives, and with whom she communicates and spends time with.”

In considering whether the choice should be given to the teenager, the court accepted the expert opinion which “warned in the strongest possible terms of the importance of allowing the girl to make a choice, and to respect the same”.

The expert told the court there was a significant difference between the girl going to her mother by choice, and being forced to live with her mother: “Being coerced would be an extra loss for the girl, that worsens her prognosis because of the cumulative losses she has had over time”. Ordering the girl into her mother’s care could bring about a state of disassociation, said the expert, “like a soldier in the battlefield”. But the court also declined to order the girl into the grandmother’s care.

Instead, empowering her with ongoing choice of where she would live was seen as benefiting her “developmentally, relationally and emotionally”, and it would also make it more likely that she would choose to reconnect with her mother “on her own terms” in the future.

You can read the case here.

If you need help with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400. Your first no-obligation conference is free.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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