Comment to 'Father has been charged with Rape of the mother and now seeks time with the Children.'
  • The most obvious concern about Judge Terry's judgement (and others before and after) is the context of the judicial officers reasoning in his/her decision.

    THIS is where the core of the problem lies within the family law jurisdiction.

    Every act of human behavior brought to light in a trial or hearing tends to focus on negative aspects of human behavior with a strong emphasis on negative feeling and emotion while not EVER give any merit or acknowledgement to positive consequences or outcomes of that kind of behavior.

    For example, cameras in the house may have been for the protection of the husband or children, but here you have a judicial officer grossly insinuating the act in favor of the applicant ex wife. Raises so many questions. For one, his wife claims he raped her. The context of these claims, having cameras installed in the house for each parties protection doesn't seem like such a bad idea.

    The judicial officer must have the capacity to make a judgement call on the circumstances and not be influenced by emotion, feeling or prejudice.

    NOW, i'll stick my neck out and say this bluntly, if a judicial officer cannot disconnect from these 3 aspects (Emotion, Feeling, Prejudice) regardless of the claim behavior or social acceptances, that person should not be in the position to make detrimental judgement calls.

    The adversarial approach has to be junked or at the very least the judicial officers must focus on positives more than determining outcomes on negatives or prejudice traits. 

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    • I agree context is very important and often overlooked by judges. It is very easy to criticise someone when you are blind the their circumstances.

      Some judges, to their credit, put the evidence in front of the reader and say, for example, "Here is what the father wrote to the mother and which I interpret as follows..."

      That doesn't solve the understanding-the-context problem completely, but I find it comforting to be able to read what it is that a judge is basing their decision on.

      Maybe it's just my imagination, but Judge Terry seems to make a habit of making findings based on evidence she does not wish us to see. For example, I would have like to read, in full context, "the things" the father is supposed to have said here:

      1. Some of the things the father said in his affidavit suggest that he has committed acts of coercive and controlling family violence, even though he is not prepared to put that label on it.

      I also agree with you that the legal profession's tendency to focus on negative consequences of behaviour and ignore positive ones is a mistake.

       

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