I an article published on 13 June 2012 in the Daily Mail – UK, James Chapman discusses how new laws in the UK mean that parents who obstruct the other parent from spending time with the children could be jailed.
The article titled, “mothers who deny fathers access to the couple’s children after a breakup could be jailed” states that, “separated parents who fail to allow their partners to maintain a proper relationship with the children could be stripped of their driver’s licence or passports, hit with curfews, or ordered to do a period of unpaid work or even jailed.”
Chapman states that in the UK, ministers were proposing a dramatic extension of punishments for breaches of Court Orders in relation to parenting.
Chapman states that “the move is part of the most radical shakeup of the family Courts for decades, with a new right to share parenting following family breakdown to be enshrined in law.”
The changes in the law are due to the concern that children are becoming alienated from the other parent who is not their primary carer.
The laws also come as a response to campaigners for fathers rights who argue that the role of the mothers are placed ahead of that of the father in children’s lives.
Chapman states that, “unless their (the children’s) welfare is threatened by staying in touch with either their mother or father, children must have an equal right to a proper relationship with both parties.”
He continues: “ministers say that they want to put a rocket under the courts to ensure that parents who flout court orders about access or care arrangements are punished.”
Currently in Australia the Family Law Act says that in deciding whether to make a particular parenting order, the Court must consider the best interests of the child as the paramount consideration.
The Family Law Act also says that primary consideration in determining what is in the child’s best interest include both “the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.”
This seems similar to the approach in the UK which is that children have a right to have a relationship with both their parents but not at the expense of the children being at risk of abuse, neglect of family violence.
Previously in Australia an additional consideration which the Court considered in making parenting orders was whether or not a parent had or had not encouraged a relationship between the child and the other parent. Due to criticisms in relation to this being contradictory with the need of the parent to protect a child from the other parent in some cases this subsection has now been removed.
It would almost be universally agreed that, the “best interests” of the child should be paramount. However what does this really mean? It also makes sense that children should have a right to have a right to a relationship with both their parents, however, again at times children need to be protected from one of their parents when that parent poses a risk of harm towards the child.
In Family Law, the Courts face a very difficult task in balancing out these various considerations to make orders that are in the best interests of the child.
If you are going through a relationship separation including disputes with your ex-partner about parenting, please do not hesitate to contact us at Armstrong Legal on 9261 4555 in order to book an obligation free initial consultation.