The Not So Modern Family

by Caldwell Martin Cox | 19 12, 2022 | Latest News

The law has come a long way to incorporate modern family units, but where does it draw the line? In a decision by the Federal Circuit Court, a man who was not the biological father of the child was given orders in his favour to allow him to spend time with the child – curious?

Mr Maldon was separated from his wife. He discovered, via a DNA test, that the boy he had loved for 13 months was not his. To rub salt into the wound his former wife then refused to allow him to spend any time with boy despite him having had a regular relationship with him prior to then.

Mr Maldon commenced legal action under the Family Law Act, 1975, seeking to be permitted to spend time with the boy. In the proceedings, the mother was accused by the Court of having “extreme… responses” and an “hysterical aversion” to the child spending any time with Mr Maldon. Mr Maldon accepted that he was not the child’s father, much to his sadness, but wished to maintain a role as a friend in the child’s life, having loved him like a son.

A determinative issue in this case was the negative impact on the mother of the child spending time with Mr Maldon, given her unreasonably “hysterical” reactions and her “enmeshed” relationship with the child. The Court concluded that, whilst time between Mr Maldon and the child was beneficial to the child given their present positive relationship, this needed to be weighed against how such time would cause the mother extreme stress and thus diminish her parenting capacity – ultimately something of course not in the child’s best interests. Whilst the facts of this case are quite unique, it does illustrate a constant battle the Court faces – the balancing act between potentially rewarding a parent’s poor behaviour against the risk of this poor behaviour being made worse by a Court order and in turn negatively impacting the child.

The Court ultimately determined that it was in the child’s best interests to spend time with Mr Maldon, as they had developed a meaningful relationship before it was ceased by the mother and then re-initiated by the Court upon the father’s Application. The Court made final orders for Mr Maldon to spend time with the boy once every 6 weeks, and for the mother to have all rights and responsibilities in relation to decisions about the child. In effect, Mr Maldon was allowed a friendship with the child culminating in time for 4 hours every 6 weeks, and the mother was granted responsibility as the parent, thereby reducing her concerns about losing control over the child’s life. The biological father chose to have no involvement.

One lesson learned here is that difficult problems require creative solutions. If you have a difficult problem requiring an ‘out of the box’ solution, one of our lawyers would be pleased to meet with you.