The Family Court of Australia has made some really odd decisions in the past decade, which it uses as precedents when making decisions now.

There are a long list of cases that will blow your mind, and today, here’s just one of them.

In Josey & Meibos [2009] FMCAfam 470, the Family Court harshly reprimanded a mother when she changed her kids’ school to try to keep herself and her children safe from their father, who had a history of violence and anger against them.

Not only that, but the court ordered her to re-enroll the kids in their original school and creche, and ordered the mum to make all decisions like this jointly together with the dad in future.

“But what about the poor dad?” Sure, he had been spending time with the kids up to 4 days a week, while they lived full-time with their mum, and he’d managed to get the mum to compromise and enroll the kids in their original schools in earlier conversations.

The dad had managed to convince the mum to get back together before they separated again for good, and it was only then that the mum “unilaterally” moved house and changed schools.

But the mum’s evidence is compelling that the dad was an angry, physically violent, emotionally abusive person towards her and the kids. She had taken out a protection order against him, which is quite difficult to do in Australia.

The mum’s lease was also ending, so she had to find a new home in a hurry, which was unfortunately further away from the first schools. So depending on travel time, it might be sensible for the kids to change school, instead of spending hours commuting each day. (The court completely disregarded this, so scroll on to see how ridiculous they got.)

Meantime, the worst the dad could say about the mum was that she could be “controlling” and insecure. Apparently, he had filed for a protection order against her as well by the time this case got to the Family Court.

So how do we think those two parents compare?

How should the court have looked at this situation when making their orders?

1.Best interests of the child – but courts make up an imaginary child, not looking at the real situation

First, the Family Court is supposed to add their number one priority look at what is in the best interests of the children, not the best interests of one of the parents.

Protecting children from harm was very clear in the law, even at that time. Their judgement reasons literally say yeah there’s been intervention orders (DFV protection orders) but the mum didn’t make a submission to the court that this is why she changed the schools.

(For context, “submissions” are just one of the many types of documents you have to file in a case. They are not the only thing the judge should look at when making a decision.)

The judge saying there’s no submission of DFV is actually just not true. Because the mum had filed an affidavit about the violence, and the judge was legally required to consider that, even if DFV wasn’t specifically listed in her submissions.

Even if the judge wasn’t prepared to make a “finding of fact” about there being a risk of DFV to the kids, they could still have taken it seriously (known in lawyer speak as “giving more weight to this factor”).

How is it in the best interests of any child to spend time with a violent man, regardless of who he is?

At the time, the law was that both parents had to have a meaningful relationship with the children, which the court thought might be harder for the dad if he couldn’t take the kids to school a few days a week because the second school was further away from his home. But the court used that as a reason to force the kids to change schools again, which makes no sense.

Instead, the court could have exercised their discretion to make orders about the time the dad gets with them, to maintain that relationship. Why didn’t they give him every second weekend, like they do in other cases where mum and dad live far apart? In all of those cases, the court said that was more than enough to maintain a meaningful relationship.

How is it in any child’s best interests to be forced by the court to change schools again, when they had just changed schools recently?

We already know from the research summarising hundreds of cases that the Family Court doesn’t actually listen to what the kids want or need, anyway.

The court also used as an “additional consideration” for the children’s best interests, that the court felt the mum would not actively help the kids to maintain that meaningful relationship with their dad, because she had changed their school without his agreement. They said even though her lease was ending, she should have stayed in the area and just made a court application for the court to approve her changing schools, before she moved house.

How does that decision make sense?

Every renter knows how hard it is to find a new place to live in a hurry.

But judges are not renters. They are almost exclusively homeowners who are also property investors. Even from their ivory tower, how does it make sense to apply for court orders while your lease ends?

2.Direct discrimination based on gender bias

Secondly, we know that women can often appear “controlling” to men when they disagree with men about anything, not just schools, or when they refuse to be abused anymore. Let’s look at some stats.

• When women disagree, men are highly likely to tell them to calm down, and to view any subsequent points she makes as being an emotional response, not a logical response. (Fraska, Leskinen, & Warner, 2022)
• The Family Court has been shown to misuse the law that prevents parental alienation (Rathus, 2020, in the Journal of Social Welfare and Family Law). Basically, research the Family Court uses the “parental alienation” part of the Family Law Act to force DFV victims (majority mothers) to stay silent about any abuse. If the victim alleges abuse in court, the court sees this as them trying to control the male abuser and prevent the abuser from seeing their child – “alienation”. I’m sure you hear about this all the time from Men’s Rights Activists (ew) and fathers with limited visitation, but the report highlights that actually it cuts both ways. And this has very dangerous and unintended consequences for vulnerable mothers and children.
• The Geena Davis Institute team a study that found that when a room’s population is 20% women (i.e. mostly men), men see it as an equal 50%. When women are only slightly more present, at 30%, men claim they were outnumbered, saying the room was 60% women.
• 1 in 8 men believe women are “too emotional” to work in politics. (Fraska, Leskinen, & Warner, 2022) Oh okay, so all of the Trump and Elon tantrums are because… They’re too girly? 😂
• “Sexism and misogyny serve to excuse abusive behaviour by men in intimate relationships with women and put up barriers to female survivors being believed and supported to leave abusive men.” (Women’s Aid et al, 2021)

That stat about men seeing a minority of women in a room as a majority is actually psychotic – in the true meaning of the word, as in, men are living in an entirely different, imaginary world that does not match reality. It’s how we end up with a Family Court that people think favours women, when in fact it has favoured men for decades. (Easteal, Prest, & Thornton, 2019 in the Australian Journal of Family Law).

So that’s probably a big part of why the court was looking at this mum trying to protect her kids, and thought, oh she’s trying to control him. But it’s not true. It’s not reality. The court really needs to take its own blinkers off.

3.”Insecurity” weaponised against a DV victim-survivor

Thirdly, we know that women can naturally become “insecure” after being abused like this mum was.

In fact, the dad took advantage of the mum’s insecurity and managed to get back together with her before she separated from him a second time. It was only at that point that she was brave enough to change the children’s schools.

And the court absolutely roasted her for it.

Had they had zero domestic violence sensitivity training, you might wonder?

Well, for a long time, one of the key ways judges and “registrars” are assigned to cases, is whether or not they have experience with judging cases involving domestic and family violence (DFV). So maybe they weren’t trained…

But the judges in this case would have heard enough tales of abuse to have some amount of understanding. So there’s no excuse!

They needed to insert some humanity into their perception of this family.

4.She literally did not break the law

Fourthly, there were no court orders at the time the mum changed the kids’ schools. The mum had “parental responsibility”, which is the legal term in Australia that means you can make long-term decisions to take care of your kids. So she had the legal right to change their school.

She did not break the law.

The dad also had parental responsibility at the time… But if you read the judgement and the factors I’ve outlined here, you might wonder, why didn’t he use his parental responsibility to agree to let the mum change the kids’ schools.

Instead, he took her to court. An expensive, stressful, traumatic experience.

And the court supported him and reprimanded her.

Does it make sense?

No.

#legalsystem #Australia #genderbias #domesticviolence #familycourt