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Family court no place for children

By January 13, 2021February 23rd, 2024No Comments

A family court judge was startled to discover a little girl playing near her mother during submissions in a parenting matter heard in the Melbourne courts. With children not in fact permitted to be present in court during hearings of family law proceedings, it seems that nevertheless, somehow, this little girl managed to bypass whatever court procedures are in place to prevent such occurrences. The published judgment does not make clear whether the child was removed from the courtroom for the remainder of the hearing. But the mere fact that the little girl was brought into the courtroom turned out to be a strategic error by the child’s mother, with the judge saying this action was more proof of the mother’s inappropriate decisions in relation to parenting the girl. Let’s have a quick look at this case.

The case, pseudonymised as Ashton & Farley by the courts, involved the parenting of a five year old girl. In dispute was the time to be divided between the parents, with the father wanting equal “week about” time whereas the mother wanted the child to only spend five nights a fortnight with the dad. There had been previous consent orders in the matter but the judge noted the mother’s “blatant disregard and defiance of the orders made by consent”. She had also sought to unilaterally relocate the child to a distant location, both interstate and overseas.

The father was worried about what he perceived as the marginalisation of his role in the little girl’s life and that the mother was trying to elevate her new partner’s position in the girl’s life, to the father’s detriment. The father argued the mother wanted to frustrate, undermine, disconnect, interfere and disrupt his relationship with the daughter.

The court said that the case turned on the mother’s capacity to facilitate the child continuing to have a strong, loving relationship with her father.  The judge said “her conduct sends a ‘meta message’ that she considers that she has the right to solely determine where X lives and the father will have to travel to accommodate her decision” and that “she should not be elevated to a role of primary custodian as she cannot be relied upon to facilitate and promote a relationship between X and her father”.

Luckily, the judge said it was remarkable that so far, the child has maintained strong relationships with each parent and “seems to have avoided being caught up in the parental conflict”.

To preserve the girl’s strong relationship with both her parents, the judge ordered an equal time arrangement so the girl would have “emotional permission to love and spend time with each parent, as she is entitled to do”.

The judge questioned the mother about the child’s presence in court and found the mother’s responses “extraordinary”, with the mother admitting it was “bad judgment” on her part. The judge told her she had “simply taken no steps to protect [the daughter] from the proceedings” and that she “displayed ignorance of the need to protect [the daughter] from adult issues”. The judge asserted she had failed to protect the child from the dispute and had discussed the father in a derogatory manner in the child’s presence or hearing. All of this fed into the court’s critique of the mother’s parenting.

How do kids “appear” in family court?

There are good reasons why children are not allowed to be present during family law proceedings involving them. For one, small children would inevitably be a distraction in the formal setting. But most importantly, children need to be shielded from their parents’ dispute, and being present during acrimonious court proceedings is potentially traumatic. As a result, parents need to make childcare arrangements for those times when they are required to be present in a courtroom.

Note children do have the capacity to have their views heard in the court through Independent Children’s Lawyers and court-appointed family consultants. When meeting with family consultants for the purposes of a Child and Family Meeting, children may meet with the family consultant with or without their parent being present, but children can be supervised by qualified childcare staff in a secure area. The courts’ handout explains, “This is to ensure that they are in a neutral environment and not exposed to possible adult conflict in the open areas of the Court. However, when such a service is not available, you may be required to bring someone to look after the child/ren for you or organise alternate childcare arrangements. Therefore, if your child does need to attend court (to speak to a family consultant or judicial officer), check with court staff prior to your day to see whether any childcare arrangements need to be made.

However, when it comes to an actual trial, although the courts are “open”, individuals under 18 are not permitted to be present in the family court room. As such you will need to make other arrangements for your children’s care for when you come to court. As seen in this case, overlooking this important aspect of parenting arrangements, even if inadvertent or due to being unaware of the rules, can reflect negatively on you.

You can read this case here.

You can also read the Family Court’s tips for your court hearing, or read our blog on how to prepare for court.

Do you need assistance with a parenting matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

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


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