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Having a Meaningful Relationship With a Child From Gaol

Whilst the idea of a child being required to attend a gaol to spend time with his or her incarcerated parent is abhorrent to most people, it is, nevertheless something that the Family Law Courts have considered from time to time.

An important decision from the Family Court which deals with such a situation is Justice Bennett’s judgement in G & C [2006] FamCA 994. In this matter, the father had been found guilty of four counts of incest with his two daughters, who were teenagers at the time, and was sentenced to seven years in gaol, with a non parole period of four years. The family law matter involved a young boy who was approximately seven years of age when the judgement was delivered and was the step-brother of the two girls that the father had assaulted.

Justice Bennett stated in her reasons:

In many cases the benefit of a meaningful relationship by a child with both parents is not an issue and the court is merely required to determine how that can best be achieved. That is not the case here.

In finding that it was not appropriate for the father to have any direct contact with his son and only have an opportunity to send him letters, cards and/or gifts three times each year by post, Her Honour explained that when considering the benefit to the son of having a meaningful relationship with his father, it was necessary to consider the evidence, and determine how orders could be framed to ensure that the son had a meaningful relationship, if it was in his best interests. This is referred to as the “prospective approach” and has been followed in cases such as the Full Court decision of McCall & Clark [2009] FamCAFC 92.

The prospective approach is contrasted with two other possible interpretations:

  • The “presumption approach”, which is basically that the Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents. This possible interpretation has been rejected by the Courts; and>
  • The “present relationship approach”, which is essentially that the Court is required to consider the benefit to the children in the particular case of having a meaningful relationship with their parents, by examining the children’s relationship at the date of the hearing and making orders which reflect the findings made. Whilst this is not the Court’s preferred interpretation, in McCall it was said that it may still have relevance depending on the particular factual circumstances of a case.

Image Credit – Galinast ©

Written by Peter Magee on April 12, 2017

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile

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