By Briana Kotzapavlidis

21 August 2018

What do the kids know? Nothing, they are too little, you didn’t argue in front of them and you have done your best to shelter them from the conflict. Right? Never say never…

In the Carter & Carter [2018] FamCAFC45, the Full Court of the Family Court granted an adult child access to their parent’s Family Court file from 1977. The Family Court, at first instance denied the adult child‘s application for access to the file, expressing concerns about the long term impact upon his wellbeing, that it may exacerbate and inflame already strained relationships with his parents and siblings and that the contents of the file were unlikely to provide the answers that he seeks.

On appeal, the Full Court found that the adult child is an interested person and it would be reasonable to grant him access to the file (whether or not he would benefit from that access). The Full Court held that the Judge at first instance was not entitled to take into account the fractured family relationships or the privacy or security of the adult child’s parents (who had both consented to him having access). After finding that it is reasonable for the adult child to seek access to the file to understand the circumstances surrounding his parent’s separation and the reasons why he did not live with his mother and siblings, the Full Court granted him access to the file.

Murphy J accepted that there were “important matters of principle at stake”, that is,

“the question of whether children, who were the subject of proceedings and who are now well and truly adults, should be able to see what was said about them in respect of their best interests in proceedings which had that issue at their very heart.”

In 2012, Judge Tom Altobelli (then Federal Magistrate Altobelli), took the unusual step of writing a letter to the children, then aged 11 and 6, to be opened on their 14th birthdays, explaining why he had decided that they would live with their mother, even though he rejected the mother’s claims that their father had sexually abused them. It has been reported that the Judge wrote in his letter to the children,

“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.“

His Honour went on to say,

“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.”

Judge Altobelli made it clear that he hoped the children would re-establish their relationship when their father when they are older.

These case examples reiterate that parents should, if possible, use their best efforts to resolve parenting issues between them by agreement and ideally, without having to engage in stressful and protracted litigation. Our specialised Family Law team is dedicated to assisting and advising our clients on arrangements which are in the best interests of the children and work well for their family. We can also refer you to skilled and experienced Family Dispute Resolution Practitioners, counsellors and psychologists, where appropriate, to support you in navigating parenting arrangements post-separation.

Please do not hesitate to contact Briana Kotzapavlidis or a member of our Family Law Team.

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