Source Alan Toniolo de Carvalho, http://www.publicdomainpictures.net

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 Family Court overturned a ruling from a Federal judge who issued a court order prohibiting a mother from breastfeeding her 11 month old son. The order was unanimously thrown out by the Family Court because the Federal judge based his decision not on expert opinion or medical evidence, but based entirely on his own internet research.

The case came to court after the child’s father, Mr. Macek, refused to return the child at the end of his parenting time. Mr. Macek argued that his ex partner’s new tattoos placed the child at risk of harm should she breastfeed.

Judge Matthew Myers heard the case in Federal Circuit Court and banned Ms. Jackson,a 20 year old mother,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. The father, Mr. Macek, was also given increased parenting time.

Ms. Jackson has tested negative for HIV. She filed an urgent appeal, and the appeal was 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 has a domestic violence order against him, but is allowed to have extensive visits with the child, unsupervised. The original order granted the father to spend 6 hours a day, 4 days a week, with the child. The Family Court (who heard the appeal) changed the order to 2 days per week for five hours per day pending the conclusion of another hearing.

The court record also contains concerning reports made about the ability of both parents to care for the child; yet Judge Myers issues his harshest ruling on the breastfeeding issue. Judge Myer’s focus on breastfeeding as being the sole concern about the safety of the child is misplaced.

Both parents have used illegal drugs in the past, and as part of proceedings, have been tested for current drug use. Ms. Jackson was found to have smoked marijuana on May 22nd, while breastfeeding. The Court has ordered the parents “abstain from using illicit drugs in the 48 hours prior to or during the care of their son”.

It should be a red flag that the father, Mr. Macek, would just take the child, which is non-custodial kidnapping. Mr. Macek’s claims of endangerment are not supported by the present health or well-being of the child, and not supported by any direct medical reports or evidence. The child is primarily being cared for by the mother, Ms. Jackson. To abruptly take the child from its mother, and its home, and to abruptly wean the child from breastfeeding would certainly cause distress for this child. All of this was done without any findings from child protective services, police, a medical report or any credible professional. 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 is to reward Mr. Macek with additional parenting time; it makes no sense. It is unclear if the safety of the child has been assessed, or if the father is receiving any kind of treatment.

Judge Myers has ordered Ms. Jackson to live her grandmother. Ms. Jackson has been diagnosed with postpartum depression, and was told to by the Court to follow a mental health plan. TMr. Macek was ordered to live with his mother. The ruling was created to make sure there is a “responsible adult” around the child. The reality is that there will not always be someone around to monitor these parents with their child. What then? It seems very clear that these are young parents struggling to care for their child, and are in need of supportive services, and family therapy (or parenting classes). At the same time, 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:

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