Changing the stigma of fathers’ roles in Family Law cases

We regularly hear about Fathers who worry about their chances of being treated fairly in the Family Court system. Whether right or wrong, the Courts have long carried the stigma of being biased against Fathers when it comes to parenting orders because Mother’s are traditionally viewed as more suitable for the role of primary carer. Whilst in the past there was some truth to this, it is now not the case.

Children have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm.

When the Family Court is making a decision about a child, the Court will make an order that is in the best interests of the child.

The Family Law Act 1975 is gender-neutral, and does not make assumptions about parenting roles. The Family Court have recently made decisions with respect to parenting matters in which the children live primarily with their Father. These cases are as follows:-

• Badrick & Gersam (No. 2) [2020] FamCAFC 202 (5 August 2020)
  Mr. Badrick (the father) filed an Application in an Appeal seeking for the expedition of his appeal against certain interim parenting orders made between Ms Gersam (the mother) and him. The parenting orders relate to their son, Z (“the child”).
  
  As a background, the parties were at no point in a relationship with each other. They have their respective partners. The father met the child on 26 January 2018. On 28 June 2018, the father commenced proceedings in the Federal Circuit Court of Australia seeking orders for the child to live with him. The parties entered into consent orders for the child to live with the mother and spend time with the father from 3.00 pm Friday until 4.00 pm Sunday, on each alternate weekend and on special occasions. However, in about June 2019, the mother experienced a decline in her mental health and had difficulties with housing which impacted on her parenting capacity. As a result and by agreement, the parties changed the arrangements so that the child would live with the father and spend time with the mother.
  
  On 1 May 2020, the child spent time with the mother, but the mother retained the child. On 12 May 2020, the father filed an Initiating Application in the Federal Circuit Court for interim and final parenting orders. Among other things, he sought a recovery order for the mother to return the child to him and for the matter to be listed on an urgent basis.
  
  On 15 May 2020, orders were made that provide for the child to live with the parents on a week-about arrangement and for the mother to provide the father with a list of medical professionals that she has attended upon since 2017. On the following time they were before the primary judge, the father’s counsel sought for the orders to be varied on the basis that the evidence filed by the mother raised concerns about the effect of her mental health on her parenting capacity. Further, the mother’s representative informed the Court that the mother’s partner had been charged with family violence related offences against his former partner. But the primary judge refused to vary the orders.
  
  The Father appealed the primary judge’s decision and the Judge held that they were satisfied that it was in the best interests of the child to make orders that he live with the father and spend alternate weekends with the mother.
  
  
• Jasapas & Johns (No. 2) [2020] FamCAFC 203 (17 August 2020)
  This is a matter where the Full Court dismissed all eight grounds of the mother’s appeal. The Mother appealed the second set of final parenting orders made in these proceedings, where the primary judge’s orders provided for the children to be transferred from the mother’s care to live with the father and spend supervised time with the mother following a moratorium of six months.
  
  The Mother in these proceedings made allegations of physical and sexual abuse perpetrated by the Father. The Judge found no evidence of physical and sexual abuse and held that because the Mother was unable to let go of her beliefs that the Father had physically and sexually abused the children, she represented an unacceptable risk of exposing the children to emotional harm.
  
  
• Cottey & Backe (No.2)[2020]FamCAFC206.
  The Full Court of the Family Court of Australia made a decision that child ‘X’ who was born in 2012 (“the child”) shall live primarily with his stepfather and not his biological father. From August 2013, the child lived with the stepfather and the child’s mother, Ms Cottey (“the mother”). The child was living with them when the mother died in a motor vehicle accident in 2019. Following the mother’s death, as they had beforehand, the child spent each alternate weekend and a portion of the school holidays with their biological father and his wife. On the basis that the stepfather is a person concerned with the care, welfare or development of the child, those arrangements continued until April 2020 when, the biological father refused to return the child. Initially the Stepfather’s application failed. However, on appeal this decision was overturned and in considering the best interests of the child in this particular case the Court held that there was no presumption in favour of a parent compared to another person. The Court took into account the separation of siblings, the stability of a well settled living arrangement, the child’s views, that there was an inadequacy of reasons to change the ‘status quo’ and consideration of s 60CC factors. The Appeal was allowed with the prior Orders being set aside and new orders being made for the child to live with their stepfather.

Do you need to assistance in your Family Law or custody case? Contact Solari and Stock Miranda on 8525 2700 to book in with one of our experienced Family Law Team or click here to request an appointment.

Photo by Danielle MacInnes on Unsplash