Discounting the Mother–Child Relationship in Parenting Orders: A Snapshot in Time

Patricia Easteal, Alicia Prest and Fanny Thornton (2019) ‘When the Mother-child Tie in Parenting Orders is Outweighed by Other Factors: A Snapshot in Time’ Australian Journal of Family Law 32(3) 221-248.

35 Pages Posted: 27 Mar 2019

See all articles by Patricia L. Easteal

Patricia L. Easteal

University of Canberra - School of Law and Justice

Alicia Prest

University of Canberra - Faculty of Business, Government and Law

Fanny Thornton

Independent

Date Written: March 5, 2019

Abstract

We look at mothers who have lost parental responsibility and who have been ordered to spend no or at best minimal supervised time with their child(ren). Our case sample included 50 recent interim and final first instance judgments heard in the Federal Circuit Court or the Family Court, as well as 13 judgments from the Family Court of Australia Full Court. We discover that the nature and quality of the pre-existing attachment of mother and child are outweighed by a view that the child(ren) would be at an unacceptable risk of harm in the mother’s care attributable to some sort of maternal dysfunction or an inability to acknowledge (and/or treat) its impact on her parenting capacity. The most common maternal harm identified by judicial officers was emotional and included the mother’s inability to facilitate a meaningful relationship between the father and his child(ren); in some matters this derived from the mother’s concerns about physical or sexual harm perpetrated by the father. In addition, decision-making themes found in our analysis included siblings, children’s views and the important role of the independent children’s lawyer and family consultant. We conclude by highlighting areas of concern and make recommendations to prevent inconsistencies and undue influence in proceedings.

Keywords: Mothers Losing Custody of Children; Family Law Australia; Perception of Dysfunctional Mothers; Unacceptable Risk of Harm

JEL Classification: K36, K41

Suggested Citation

Easteal, Patricia L. and Prest, Alicia and Thornton, Fanny, Discounting the Mother–Child Relationship in Parenting Orders: A Snapshot in Time (March 5, 2019). Patricia Easteal, Alicia Prest and Fanny Thornton (2019) ‘When the Mother-child Tie in Parenting Orders is Outweighed by Other Factors: A Snapshot in Time’ Australian Journal of Family Law 32(3) 221-248.. Available at SSRN: https://ssrn.com/abstract=3346813

Patricia L. Easteal (Contact Author)

University of Canberra - School of Law and Justice ( email )

Australia

Alicia Prest

University of Canberra - Faculty of Business, Government and Law ( email )

University Drive
Bruce, 2617
Australia

Fanny Thornton

Independent ( email )

No Address Available

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