Australian judge explains custody decision to children


The recent constitutional amendment made “the best interests of the child” the paramount consideration in proceedings concerning children and provided for the views of the child to be taken into account in such proceedings.

This parallels similar developments in other jurisdictions which have been grappling with these issues for years.

One of the most innovative systems of family law in the common law world is in Australia, where alternative dispute resolution must be attempted before parties embark on legal proceedings. The views of children are sought, but indirectly, through Family Consultants and Independent Children’s Lawyers.

A bitter dispute over the custody of two children earlier this year received a lot of attention because, in addition to using these resources, Federal Magistrate Tom Altobelli appended to his judgment a letter to the children in the case, who were aged 10 and six at the time. The letter was to be opened by the children when they reached the age of 14, in the context of them receiving therapy.

Altobelli decided in the case that the children were to live with their mother, who suspected the father of abusing the six-year-old daughter, even though the judge did not consider her suspicions to be well-founded. The case was Gaylard Cain (2012) FMCAfam 501.

His decision has not been endorsed by the Australian judiciary and there has been much debate about the merits of this approach.

This is the letter:

“Dear X and Y,

After your mum and dad separated, they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help, it was a hard, sad case to decide.

“This letter is to try to explain my decision to you, even though you probably won’t read it for many years. The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.

“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. This just goes to show that sometimes words do not change a person’s heart.

“At the time of the case, both of you were saying things and doing things that told me you did not like your dad and did not want to spend time with him. I don’t think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.

“I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. 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.

“By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this and help you to make it happen.

“Please remember that both your mum and dad love you very much, even if they love you in different ways.”

The full judgment can be obtained by doing an internet search for Gaylard Cain (2012) FMCAfam 501.

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