The law in practice: a personal perspective

Imagine if following a heated custody battle, claims were made against you, devastating claims which are untrue to their core. Now imagine being told that you cannot see your children until a court finally determines your case; that you cannot send any cards or make any phone calls; you cannot celebrate birthdays or holidays until a final decision is made — and so you wait, day by day, week by week, month by month, crying at night for your lost children. You wait not one, but four whole years for the trial to run its course and for judgement to be handed down. Then another year or two once the process that was put in place is acknowledged to have failed.

By the time the trial concludes, the allegations made against you are shown to be false, that opposing counsel has abandoned such claims in closing submission but brings out his strongest weapon yet: the passage of time, he claims, has made you all but irrelevant. The mother’s believes are now genuinely held and that’s all that matters. Your children’s love has been turned into hate while you were away. They no longer call you ‘dad’. Let’s not rock the boat.

Now stop imagining and let really hit you.

Even if you win, by this time, you missed out on half of your children’s childhood; your relationship with your children has suffered so much that it is unclear if and how it can ever repair. Hundreds of thousands of dollars were spent in no-cost jurisdictions with little to no chance of recovery. By now, you lost your job, blew your father’s retirement, been diagnosed with depression and picked up smoking. Now, you are a broken part of what you once were and your children are hollow shells of what they once were.

© Stacy Gold

We speak of lofty ideals, ‘the best interests of the child,’ ‘protection from harm’ and all things good in theory — but that is all lost in practice. Even if justice is eventually achieved, it is delayed to the point it is effectively denied. In practice, this is where the law hurts the non-custodial parent most, as time is their enemy, be it in evaluating ‘the likely effect of any changes in the child’s circumstances’[1] or the children’s views[2] which are likely to fortify with time along with the custodial parent’s wrongly (but genuinely) held belief.[3]

In high conflict cases or cases where untrue allegations are make, such an outcome would result in gross injustice, in the children being caught in a legal limbo, in long term psychological harm and in the parties spending all they have on legal fees. No one walks out a winner.

I have met so many men and women who have been through divorce but have yet to meet a man, woman or child who have had the pleasure of going through the family courts and had a single positive adjective to describe their experience.

It is a place that knows no justice, a court that has no regard to time — while the tick-tock of clock determines your fate.

[1] Family Law Act 1975 (Cth) (‘FLA’) 60CC(3)(d)

[2] Family Law Act 1975 (Cth) (‘FLA’) 60CC(3)(a)

[3] Russell and Close (1993) FAmCA 62