Reference source: Sydney Morning HeraldJacqueline Maley
July 12, 2007
SEPARATING parents who make derogratory comments about each other in the presence of their children are so bad for their children's development that the Family Court can impose criminal sanctions on them.
In a recent decision handed down by the Family Court of Australia, Irvin and Carr*, the mother and father were ordered to refrain from making such comments with a child present.
The order was one of several directions about custody arrangements and reflected the willingness of the court to govern the private behaviour of parents where it disrupts the wellbeing of the child.
Justices Finn, Warnick and Boland found that the mother had breached the order by making an insulting comment about the child's father on the phone.
The breach, with other contraventions, contributed to a change in custody orders which meant the three-year-old lived primarily with the father. A breach of orders made by the Family Court is a criminal offence, and can result in a jail term.
The Family Law Act makes very clear that where the rights of parents and children conflict, the rights of children prevail.
Geoff Dunlevy, the president of the Law Society of NSW saidNon-derogation orders, as they are called, are one of a number of specific directions the court can make governing behaviour. Others include directions not to smoke or drink alcohol in front of the child, or the stipulation that the parent use a particular car seat when driving their children.
The reason the court can make non-derogation orders is that it can be very psychologically damaging for one parent to make insulting comments about the other parent in front of the child Mr Dunlevy said.
Although some would consider such an order an unacceptable invasion of the state into the private sphere, the rights of the child must be factored in
However, Ms Hollonds said non-derogation orders hold separated families up to standards that would never be enforced in families that stay together.
But Anne Hollonds, the head of Relationships NSW, which counsels in family court disputes saidIt is more complicated than that. It takes enormous emotional maturity and self-discipline not to let the kids see what you really think of the other person.
The child embodies both parents in their sense of self, so they will identify with criticism of either parent. When a parent is criticising the other parent, to an extent they are criticising their own child.
The child may start to suffer emotionally and psychologically.
Anne Hollonds saidThe occasional careless comment won't cause lifelong damage
Coral Slattery, the secretary of the Family Law Reform Association in NSW, a lobby group in favour of shared parenting saidNon-derogation orders are necessary.It is something like "wicked" to turn a child against one parent.
That is brainwashing. A child deserves to have a good relationship with both parents whether they are living together or not
Wayne Butler, Executive Secretary of the Shared Parenting Council of Australia, a key law reform group saidWe find more often than not that one parent carries out a vendetta of derision against the other , perhaps in some way to make up for all the previous ills of the failed relationship. We are relatively satisfied at the current provisions and penalties for contravention of orders and the changes made last year in the Family Law Act are now starting to have a significant impact. In these type of situations the Family Law Act is now very clear and will penalise delinquent parents and the Judiciary , in the main, are delivering more appropriate parenting orders where Dads are now getting significantly more parentinmg time in orders
* The Family Court changes the names of parties to protect their privacy.