Judge Matthew Myers (Wikipedia Commons)

Don’t breastfeed any more. Seriously don’t. It’s not in the best interests of the child…I don’t care if it makes the front page and it probably will.” Federal Circuit Judge Matthew Myers banning a mother from breastfeeding during an interim hearing on June 3-5, 2015. Judge Myers ruled that because the mother has a tattoo she poses a health risk when breastfeeding her child.

June 2015, New South Wales, Australia – “Judges must not mistake their own views for being facts” Australian Family Court Justice Murray Aldridge made this strong statement after an appellate court overturned a ruling from a Federal judge who issued a court order prohibiting a mother from breastfeeding her 11 month old son. There was no motion before the court to restrain the mother from breastfeeding when the ruling was made. The order was unanimously thrown out on appeal because the Federal judge based his decision entirely on his own opinion.

The case came to court after the child’s father, known as, Mr. Macek, refused to return the child at the end of his parenting time, and the mother fought for return of the child.

Judge Matthew Myers heard the case in Federal Circuit Court and set aside issues raised to ban the mother, known as, Ms. Jackson from breastfeeding because she recently had a tattoo placed on her finger and another on her toe. Judge Myers said the tattoo put the baby at risk of contracting HIV, and based his ruling on articles he read on the internet – which is bias. The father, Mr. Macek, was also given increased parenting time.

Ms. Jackson filed an urgent appeal heard by a full bench of the Family Court in Sydney. The Family Court overturned the ruling of Judge Myers because they felt there was no evidence to support that Ms. Jackson presented a risk to the baby should she continue to breastfeed.

Another questionable aspect of this case is that the father Mr. Macek has a domestic violence order issued against him, but is allowed to have extensive visits with the child, unsupervised. Mr. Macek also pleaded guilty to assaulting Ms. Jackson. The original order granted the father to spend 6 hours a day, 4 days per week, with the child. In coming to its determination, the Family Court (who heard the appeal) determined Judge Meyers erred by failing to consider s 60CC of the Family Law Act when making orders about the time the child is to spend with the father and specifically,”The orders provide for an 11 month old child to spend six hours with his father every Sunday, Monday, Wednesday and Friday. Quite simply, how such an arrangement is in the best interests of an 11 month old baby is beyond me. Such an arrangement is of its very nature unsettling to the child and likely to lead to instability. It requires a constant change of households and, in this case, would require eight changeovers per week between parents who accuse each other of violence and drug taking and have difficulties with the other members of each other’s family. Such orders are likely to be productive of conflict.” The Family Court temporarily changed parenting time with father to 2 days per week for five hours per day pending the conclusion of another hearing.

Judge Myers’ focus on breastfeeding as being the sole concern about the safety of the child is misplaced.

That Mr. Macek, refused to return the child after his parenting time, should be considered non-custodial kidnapping and that act alone, is harmful to the child.  The child has primarily been cared for by the mother, Ms. Jackson, since birth. According to court records, “It was common ground that the father had only seen the child on four occasions since separation. To put this in context, it is common ground that prior to separation the mother was primarily responsible for the care of the child and the father was involved to the extent that his full time employment permitted. Of particular relevance to the challenge to his Honour’s order concerning the child’s time with the father is the fact that prior to separation the longest period of time the child spent in the father’s sole care was one hour.

That combined with the Mr. Macek’s history of domestic violence, creates a real risk of harm for this child. Yet, the response of Judge Myers to ignore these issues and award Mr. Macek with additional parenting time; makes no sense. The family court should recognize the need for sensitivity, and not exacerbate an already tense situation by issuing a court order that unfairly punishes one parent and ignores the real safety risks.

— EJ Perth, 2015

Sources:

“Australian Court Orders Mother to Stop Breastfeeding After She Had Tattoos” by Jonathon Pearlman, The Telegraph, 6/18/2015:

“Breastfeeding Ban on Tattooed Mother Overturned by Family Court” by ABC News, 6/19/2015:

“Mother asks court to let her breastfeed her son after ban by judge for getting tattoos” by Louise Hall, The Sydney Morning Herald, 6/18/2015:

Jackson & Macek [2015] FamCAFC 114 (19 June 2015) – Family Court of Australia

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