Judge writes letter to children in custody battle

by Peter Magee on June 9, 2012

Peter Magee

In an article called “I knew your mum would look after you: judge” by Emily O’Keefe, in the Herald Sun on 7 June 2012, Emily O’Keefe reports that a Federal Magistrate Altobelli has taken the unusual step of writing a personal letter to two children explaining why he gave sole custody of them to their mother.

The letter was written in the circumstance where Court Orders were made that provide for the two children, an 11 year old boy and 6 year old girl, having no contact with their father apart from letters, birthday cards and gifts. The parties were a 38 year old mother and 41 year old father who separated in 2009 after an 8 year relationship.

O’Keefe reports that in his letter, which the children are only able to open once they are 14, Federal Magistrate Tom Altobelli told the children he did not accept their mothers’ claims that their father sexually abused them. However he was still of the view that he thought it would be best if they lived with her.

Federal Magistrate Altobeli said that the custody dispute was “a hard, sad case to decide” but asked that they renew contact with their father when they were older.

Part of the letter read as follows, “At the time I had to decide the case your mum believed in her heart that your dad hurt you… My job is to look at all the information, and listen very carefully to what everybody says, including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you.”

The letter then read, “I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.”

Generally children and the Federal Magistrates direct communication is limited and the Federal Magistrates decision to write a letter directly to the children in this matter was quite unusual. The Federal Magistrate may have felt that he wished to explain his reasons for making the decision he had directly to the children so that they did not grow up with the feeling that the Court proceedings simply happened “above their heads” without consideration for their feelings or best interests.

In fact the Court is required under the Family Law Act to consider as a paramount concern the “best interests” of the child.

Other ways in which children become involved in Court proceedings can include for example attending a Family Consultant who will speak with the children (and the parents) and write a report based on these interviews. In some instances an Independent Children’s lawyer may also be appointed to act for and represent the children in the matter. This may also give the children a sense that their voice is being heard in the Court. That being said on the other hand another view is that children should be shielded and kept out of Court proceedings as much as is possible.

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