Unemployed father denied sole residence of his son

In McMillan v Jackson (1995) 12 an unemployed father denied sole residence of his son because the trial court considered him a poor role model for his son was found to be the victim of gender bias. The child was originally handed over to his maternal great-grandmother whom the trial judge said may well wear the pants in her family.

It goes without saying that the child’s respect for his father as a role model will be immeasurably heightened if he perceives his father as the parent who is supporting him from his own exertions’ his decision also said.

The Full Court upholding the father’s complaint of gender bias ruled that it was wrong for one of its judges to say the child in question was at risk of welfare dependency because his father chose to be a full-time parent rather than a wage earner. The judgment found the trial judge‘s pre-conception that a father should be out working to support his son rather than staying at home to look after his day-to-day needs, played a significant part in the determination of the case. 13

In addition, the trial judge had failed to notify the father of his views during cross-examination. The appeals court noting that it had the obligations and responsibility to reflect community standards and opinions subject to the Family Law Act 1975 found that the judge was out of step with community values. 14

The Sunday Telegraph in 1996 15 reported on a residence case where the mother made a sexual abuse allegation about the father towards the child. Justice Joseph Kay found the mother to not be a believable witness and that she would try to deny any meaningful relationship to the children with their father. He further found that her behaviour was positively destructive to the emotional needs of the children and would psychologically harm them. He then awarded her sole residence because the husband lacked instinctive insight into the needs of children.

12 McMillan v Jackson (1995) FLC 92-610. See also, Sheridan and Sheridan (1994) FLC 92-517; In the Marriage of Kennedy and Cahill (1995) FLC 92-605 (judgement raised a reasonable apprehension of bias as trial judge did not disclose the existence of an intimate relation between herself and the solicitor acting for the wife).

13 ibid at 82,085

14 ibid

15 Sunday Telegraph (9^th June 1996) p 82