Tuesday, 10 July 2018

A big thank you for helping stop a child being abducted overseas

Today I received one of those rare events, a call from an Australian colleague who was overseas thanking me for my work which helped determine a court case.

It turns out that the parents had separated, and the mother was concerned that the father might abduct the children overseas. The automatic reaction was that the children were protected because they were on the Airport Watchlist. The Watchlist, which is operated by the Australian Federal Police and the Department of Foreign Affairs and Trade, is a check at the airport (or sea ports) so that if someone is named on the Watchlist, they won't be allowed to leave Australia. It is assumed that the Watchlist is perfect.

My colleague looked high and low but unable to show any case that threw doubt on the Watchlist.

Until she came across a blogpost I had written on this blog. This was because many years ago a Mr Saad had been prevented from taking the child overseas and requiring him to surrender his passport. His solution? To go to the Jordanian Embassy and persuade them to issue a new passport with the child endorsed on his passport. The result? He was able to take the child to Jordan.

Not surprisingly, things did not go well for Mr Saad later when he returned to Australia.

I have long been of the view that when there is a real risk of international child abduction, prevention is better than cure. This means taking a series of steps to minimise the chances of the child being abducted. Use of the Watchlist is one of those steps. Another is taking great care with the drafting of court orders, for example.  Reliance on just one step- such as the Watchlist- can be particularly risky.

My blog referred to the Saad case- and citing the Saad matter  was instructive in changing the outcome of the case- because the issue of risk of taking the child to an Islamic country in the Middle East was properly considered, with orders in place to prevent the child leaving.

My colleague said that there was a general assumption that if the child were being removed to a Hague Convention country, it was thought therefore that there was minimal risk. Australia is a party to a number of conventions signed at The Hague in the Netherlands, commonly called Hague Conventions. The 1980 Hague Convention concerns international child abduction. Regrettably, just because a country has signed up to the 1980 Hague Convention does not mean that there is a guarantee that the child will come back. Some countries are very good at compliance, others not so. 

The phone call was humbling. I had never expected to have had that impact. I said: "You have made my day." My colleague's response: "You have changed the mother's life, for the better."

Wednesday, 4 July 2018

Defining best interests of the child in family law parenting matters




In February I presented for Television Education Network about defining the best interests of the child in family law parenting matters. Here is my paper: 

Defining best interests of the child in
family law parenting matters
Stephen Page[1]

INTRODUCTION

Of course we often bandy about the term best interests of a child on a daily basis, but it is good to remember where it comes from.  Section 60CA of the Family Law Act merely says:
            “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The term best interests is a variant of several terms used over the years, but ultimately the current form comes from the International Convention on the Rights of the Child. 
Given that it is a particular difficult convention to find on the web, I have put the Austlii reference in the footnote[2].
The language of best interests is taken from Article 3 of the Convention:
“1.       In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
 2.        States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
 3.        States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall confirm with the standards established by competent authorities, particularly in the areas of safety, health, and the number of suitability of their staff, as well as competent supervision.”
Section 60B, which I am sure that you are well familiar with, sets out the objects of Part VII of the Act.  Much of the language of section 60B comes directly from the Convention.
The provisions with which we are all too familiar:
Section 60B(2)(a) and (b):
            “The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)         Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)         Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).”
Article 7.1 provides:
            “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”
Article 8.1 provides:
            “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Article 9.1 provides:
            “States Parties shall ensure that the child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
Article 9.3 provides:
            “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both contacts on a regular basis, except if it is contrary to the child’s best interests.”
Article 10.2 provides, relevantly:
            “A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents.  Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country…”
Often we forget about the Convention but one of the additional objects of Part VII, by virtue of section 60B is to give effect to the Convention. 
The Convention is not part of our domestic law, as the High Court made plain in Teoh’s case (1995)[3].  Mason CJ and Deane J stated at [25] – [29] as to the status of the Convention in Australian law:
“25.     It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, and not the executive.  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.  In this case, it is common ground that the provisions of the Convention have not been incorporated in this way…
26.       But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law.  Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.  That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law. 
27.       It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.  The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations.  That indeed is how we would regard the proposition as stated in the preceding paragraph.  In this context, there are strong reasons for rejecting a narrow conception of ambiguity.  If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.  So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations. 
28.       Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law.  The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.  But the court should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.  Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.  A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.  Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose to which it is intended to serve and its relationship to the existing principles of our domestic law. 
29.       In the present case, however, we are not concerned with the resolution of an ambiguity in a statute.  Nor are we concerned with the development of some existing principle of the common law.  The critical questions to be resolved are whether the provisions of the convention are relevant to the exercise of the statutory discretion and, if so, whether Australia’s ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention.  The foregoing discussion of the status of the Convention in Australian law reveals no intrinsic reason for excluding its provisions from consideration by the decision-maker simply because it has not been incorporated into our municipal law.” (Emphasis added)
Their Honours then go on to say at [31]:
            “The concluding words of Art.3.1 are “the best interests of the child shall be a primary consideration” (our emphasis).  The article is careful to avoid putting the best interests of the child as the primary consideration, it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.”
An example of where legitimate expectation was the recent decision of Forrest J in Sigley and Sigley [2018] FamCA 3.  This concerned the registration of a US surrogacy order under section 70G of the Act.  The machinery provision to enable registration is under reg.23 of the Family Law Regulations.  In considering whether to exercise his discretion to allow the order to be registered, Forrest J stated at [33]:
            “The two children are both Australian citizens now as well, with legitimate expectations that the legal nature of their parent-child relationship with both of their loving parents is appropriately recognised in this country of theirs.”
A provision of the Convention which I believe has attracted too little attention in Australia is Article 8.1:
            “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
We often talk about the identity of a child and how they fit in to their family constellation, and the identity of the child may be more relevant in adoption, child protection and surrogacy proceedings than those under the Family Law Act.  Nevertheless, it is worth remembering Article 8.  A useful discussion of Article 8 is contained in the English case of Re X (a child) (surrogacy: time limit) [2014] EWHC 3135 (Fam), which was a surrogacy case.  The Court was being asked to make a parentage order under English surrogacy law, under the equivalent of section 22 of the Surrogacy Act 2010 (Qld).  Mumby P said at [54]:
            “Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are.  It is central to his being, whether as an individual or as a member of his family.  As Ms Isaacs correctly puts it, this case is fundamentally about X’s identity and his relationship with the commissioning parent.  Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child.  A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity.  A parental order, like an adoption order, has in effect extending far beyond the merely legal.  It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious consequences.  It creates what Thorpe LJ in Re J (Adoption: non-patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of a parent and child with all its far-reaching manifestations and consequences.”  Moreover, these consequences are lifelong and, for all practical purposes, irreversible…”
The point I make about identity is that often the child’s identity is relied upon by decision-makers (typically Department of Child Safety officials) to say that the child’s identity is with its parents and family of origin.  The difficulty with this argument, I would suggest, is that the child’s lived experience and their sense of why they are and their identity may in fact be with someone else, for example, the foster carers who have cared for the child since he was a baby and who he considers for all intents and purposes to be his parents.
The matter that may not necessarily often arise under the Family Law Act, at least in a direct sense – except maybe when considering whether to grant leave to adopt under section 60G or making parenting orders in favour of a non-parent by consent under section 65G.

A rights based approach

Of course who you appear before will weigh up the factors in their own particular manner, but it is important to remember that there is a rights based approach under Part 7.  I remember when the changes to the Act occurred in 1996.  I then disagreed with what Warnick J said at the time.  He said that because there was a specific reference to rights, such as a right of a child to spend time on a regular basis and communicate on a regular basis with both parents and other significant to them that this would change the thinking of the Courts.  I thought that not much would change.   Of course he was right and I was wrong.  How frequently do we hear Judges say that a child has the right to have a meaningful relationship with both parents? 

Are best interests the only consideration?

Of course not.  Section 60CA makes plain that the best interests of a child are the paramount consideration, but as the Full Court has told us repeatedly, every case is different and needs to be decided on its own facts.  Best interests while the paramount consideration is not the only consideration.  Of course section 60CC makes things more complicated for everyone because it talks about both primary considerations and additional considerations.

Balancing of the primary considerations

The current version under the continued gender wars as to primary consideration represents a win for the women’s lobby: section 60CC(2):
“(a)     The benefits of the child of having a meaningful relationship with both of the child’s parents; and
(b)        The need to protect the child from physical or psychological harm from being subject to, exposed to, abuse, neglect or family violence.”
The criticism of the women’s lobby had was that not putting a preference on the latter meant that the impact of violence upon women and children was being minimised.  Now of course the latter prevail because in the weighing up exercise it is given greater weight: section 60CC(2A). 

Allegations of abuse, neglect and family violence

Each party must file a Notice of Risk at the beginning of the matter.  I note incidentally that the Family Court has now indicated that there are new forms which take effect next week. The temptation with these notices is to fill them out quickly and lodge them.  This would be a grave error.  They need to be given particularly careful treatment.  Aside from being sent to the State Welfare Authority and all concerned, judges read them very carefully.  Time and time again I am seeing judges who when considering making consent orders for children reach into the file, drag out the Notice of Risk of each of the parties and then quiz the parties about how the proposed orders reconcile with the Notice of Risk.  If it doesn’t, the judges then require the parties to file an Affidavit explaining why. 
Of course, the Family Court requires an explanation in the making of consent orders about how allegations of abuse, neglect or family violence are dealt with.  I note rule 13.04A of the Federal Circuit Court Rules and Rule 10.15A of the Family Law Rules.
Case example: The parties were New Zealand citizens living in Australia.  There were no orders in place regarding the children, although there was a parenting plan for equal shared care.
The mother decided to return home to New Zealand.  The children stayed in the father’s care as he did not consent to the children living in New Zealand.
The mother communicated both directly and through solicitors that she understood her obligations under the Hague Convention.  The children then travelled to New Zealand and spent time with their mother during the Easter and June/July school holidays.  At the conclusion of the June/July school holidays, the mother swore her material to commence proceedings in the Federal Circuit Court.  In her Notice of Risk, she said there was no risk for the children to be in the father’s care.  She did not then file proceedings, as there had not been compliance with sections 60I. 
The children went to New Zealand for the September/October school holidays. At the conclusion of those school holidays, the mother held them over.  The mother sought that the father undertake mediation.  He refused.  A section 60I certificate issues and the mother then instituted proceedings in the Federal Circuit Court.
The father responded to those proceedings in the Federal Circuit Court and at the same time put in place steps for the New Zealand Central Authority to commence Hague proceedings in New Zealand to ensure the return of the children.
As luck would have it, the Australian proceedings were first returnable one day before the first return date of the New Zealand proceedings.  The mother was not present in the Australian Court on the first day.  The Judge insisted that the mother return with the children the following week (without making an order to that effect).  The mother through her solicitor agreed to that course.
The following day the mother’s Australian solicitor sought for the mother to return to Australia.  The mother’s New Zealand counsel resisted that approach.  The mother’s case under the Hague Convention in New Zealand was to rely on a grave risk if the children were to return to Australia.
A copy of the Australian Court documents was provided to counsel for the New Zealand Central Authority.  This included the Notice of Risk that said there was no risk to the children in the father’s care.  Faced with that damning document, the mother consented to the return of the children to Australia and then returned with them the following week to face the stinging words from the Judge that she was “gaming the system”.
Many months later the mother consented to final orders that the children reside with the father in Australia (and have time with her in New Zealand) which orders were ultimately registered in New Zealand. 

Allegations of domestic violence in interim hearings

This is always tricky.  On the one hand is the desire to fully particularise all the allegations of violence and the other is the desire to ensure that the affidavit is not prolix.  The problem is highlighted by the Chief Judge’s practice direction such that the affidavit of a party on an interim application in the Federal Circuit Court is to be limited to 10 pages and no more than 5 exhibits.  Not surprisingly the Family Law Practitioners Association of Queensland has reported that the Registry in Brisbane has noted that since the change, practitioners have been lodging affidavits with smaller font and fewer gaps – with the inevitable outcome that sooner or later they will be rejected. 
Younger practitioners will for the first time have to engage in pleading and precision in drafting.
Gong and Wei [2017] FamCAFC 55 – The mother appealed against interim parenting orders which provide for equal shared parental responsibility. The mother submitted that the Trial Judge had erred by not properly considering her allegations of family violence. The mother asserted that the family violence included:
·         2010 – She heard the father threaten to hit N and then say to the mother “If you stand in the way, I’ll hit you too”.  N was then 1 year old.
·         In 2012 the father threw a pot of boiling water at the mother and the children resulting in O suffering a burn on her shoulder which left a scar.  O was 1 year old.
·         In about 2013 the father physically disciplined N by smacking him on the bottom multiple times with force after which the child urinated in his own clothing.  N was 4 years old.
·         In August 2014 the mother observed the father to kick P in her back and heard her cry out in pain.  P was 2 years old.
·         In early 2015 the mother saw the father hit P with a plastic pole from a golf club set on her legs and thighs, after which the mother observed bruising and heard the child cry uncontrollably.   P was 3 years old.
·         In February 2015 the mother observed the father attempt to kick P in her back, but when the child moved he inadvertently kicked the maternal grandmother in the shin, for which she suffered bruising.  P was 3 years old.
·         On at least three occasions over 2 years the father forced P to stand up straight in her bed when she refused to go to bed and told her that she was not permitted to go to sleep.
·         When O was 2 years old the mother saw the father slap her across the face.
·         The mother observe the father verbally abusing the children shouting at them in an aggressive fashion no less regularly than weekly and heard him say demeaning and offensive things to them.  The mother said that she had been the subject of regular verbal abuse from the father throughout the marriage no less than once a week and to have been subjected to controlling behaviour by him. 
·         The father speaks to the children in a disparaging way including having told O that her mother is dead.
·         The father regularly slammed doors and threw objects around the house in anger.
The father made a general denial of all of the allegations of violence and abuse made against him by the wife, asserting that they were made up. 
At the trial counsel for the mother made no submissions about parental responsibility. 
On appeal the mother contended that the Trial Judge had failed to have regard to the provisions of section 61DA(3) namely that the presumption of equal shared parental responsibility applies when the Court is making an interim order unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Senior counsel for the mother further contended that the Trial Judge erred in at least considering section 61DA(3) particularly having regard to the mandatory terms of sections 60CG(1)(b). 
Section 60CG provides:
1.         In considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order:
(a)   is consistent with any family violence orders; and
(b)   does not expose a person to an unacceptable risk of family violence.
2.         For the purposes of paragraph (1)(b), the Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

The Court noted that in Salah and Salah (2016) FLC ¶93-713 at [37] the Full Court observed that it very common in interim parenting proceedings that factual disputes “cannot be determined without the evidence being tested in the context of a trial”.  As the Full Court said in Goode and Goode [2006] FamCAFC 1346; (2006) FLC ¶93-286 at [68] the procedure for making interim parenting orders is in a bridge process within which the scope of the enquiry is “significantly curtailed”.  The Full Court also observed in Goode at [68] that:
            “Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case”.
As for less contentious matters, such as the agreed facts and issues not in dispute are what the Court will generally look to in determining interim parenting orders. 
The Court said at [37]:
            “That said though, such an approach does not mean that issues of disputed fact must be disregarded in interim proceedings or the case determined solely by reference to the agreed facts: Eaby v. Speelman (2015) FLC ¶93-654 at [18].” 
However, the need for findings in disputed interim proceedings to be “couched with great circumspection” was stressed in Eaby v. Speelman.
It appears that the Trial Judge made a simple error as to the child’s complaint about the father, which the Full Court thought was most likely directed to the time that the child was spending with the father under supervision.
The Court said at [43]:
            “Considering that both parents conceded the children would benefit from a meaningful relationship with each parent and the fact that the mother was not urging that the children should spend no time with the father, her Honour clearly also balanced and weighed the factual matters alleged by the mother with the observations that the independent, professional supervisors reporting upon the “comfortable and loving interaction” between the children and their father when deciding on the proper interim parenting orders to make.”
The Court went on to say at [44] to [48]:
            “We also consider it is quite clear that her Honour had regard to the obligation imposed by section 60G(1)(b) of the Act, although she did not expressly refer to the section, by her expression of a lack of satisfaction that there was actually a need for a continuation of supervision of the children’s time with their father, notwithstanding the disputed allegations of violence.  Similarly, we do not accept the submission that her Honour did not consider whether in the circumstances she would find the presumption of equal shared parental responsibility not to apply in accordance with section 61DA(3) of the Act.  Although her Honour did not expressly refer to that subsection, or any of the subsections of section 61DA, that in itself is not sufficient to establish a failure to consider the matters contained therein.  Her reasons clearly demonstrate that her Honour took all of the matters contained in the relevant statutory provisions into account.
45.       Her Honour acknowledged and discussed the mother’s allegations and the father’s denials, as well as the other independent evidence of observations of the children’s relationships and interactions with their father.  Her Honour then expressed observed that she was not satisfied that the evidence led her to a conclusion that the presumption of equal shared parental responsibility was rebutted (section 61DA(4)) or that the presumption should not apply because of a belief that the father had engaged in family violence (section 61DA(2)).  Clearly then, she considered section 61DA, albeit without direct reference to it.  Consequently, her Honour went on to determine that she would order that the parents share equally the parental responsibility for the children.
46.       Clearly also implicit in those reasons, is a consideration of section 61DA(3) of the Act.  As her Honour has:
            (i)         determined the presumption provided for in section 61DA(1) has not been rebutted (section 61DA(4)) or shown not to apply (section 61DA(2));
            (ii)        not express the view that she considers it would not be appropriate in the circumstances surrounding the making of the interim parenting order for the presumption to be applied (section 61DA(3));
            (iii)       gone on to order equal shared parental responsibility; and
            (iv)       expressed a lack of satisfaction that supervision of the children’s time with the father is necessary to ameliorate unacceptable risk,
            then the obligation to properly consider the legislative provisions of section 60CG and section 61DA, including section 61DA(3), has been met.
47.       There is no obligation on a Trial Judge in determining an interim parenting order to find that the presumption provided for in section 61DA(1) of the Act has been rebutted or shown not to apply, or defined that it would not be appropriate to apply, simply because allegations of family violence have been raised by one parent against the other and are not able to be determined definitively one way or the other.  Of course, such allegations must be considered carefully, particularly having regard to all of the provisions of section 60CG and section 61DA, but such allegations are but part of the evidence that must be evaluated in determining the proper order to make in the children’s best interests and the fact they play in the determination is a matter within the discretion of the Trial judge.
48.       As was submitted by senior counsel for the father on this appeal, it was perhaps unsurprising that her Honour’s determination on parental responsibility ultimately evince satisfaction that it was in the children’s best interests for an equal shared parental responsibility order to be made given that counsel for the mother at the hearing made no submission to the contrary or at all on the issue of parental responsibility.”
Section 60CC(3)(j) and (k)
A recap: section 60CC(3)(j) and (k) provide:
“(j)      Any family violence involving the child or a member of the child’s family;
(k)        If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
            (i)         the nature of the order;
            (ii)        the circumstances in which the order was made;
            (iii)       any evidence admitted in proceedings for the order;
            (iv)       any findings made by the court in, or in proceedings for, the order;
            (v)        any other relevant matter.”
If you haven’t read it, I strongly suggest that you read the decision of Chisholm J in JG and BG (1994) FLC ¶92-515.  His Honour stated that domestic violence was not only relevant with the violence directed at the children themselves, or when committed in their presence, but even when they do not witness it.  He set out the following principles at p.81, 318:
“1.       In proceedings relating to custody, guardianship and access evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the welfare of the children.
2.         The court will have regard to the fact that family violence may be directly or indirectly relevant to the children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. 
3.         So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and the potential effect on the children.
4.         Where the evidence permits the court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child’s welfare, that a court will make the findings.
5.         Where the court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the court to refrain from making the findings.  If such a discretion exists, the court will exercise that on the basis of a consideration of whether the children’s welfare is not likely to be promoted by making or declining to make such findings.”
In McCawley and Stewart (2005) FLC ¶93-250 the Trial Judge ordered that the child live with the father because if the child were to live with the mother there would be “an unacceptable risk that she would be exposes to scenes of violence”.
Amongst the bases for the mother’s appeal were that the Trial Judge erred:
·         in failing to apply the high degree of certainty required under Briginshaw;
·         in failing to place any or sufficient weight on the evidence of the father’s violence towards the mother;
·         in finding that a “possibility of exposure to violence” constitutes an unacceptable risk;
·         in finding that there was an unacceptable risk to the child being exposes to violence if she resided with her mother.
In the case, there was no allegation that the child was abused in any way and accordingly the test in Briginshaw did not apply.  The finding in the first instance was that there was an unacceptable risk that the child would be exposed to scenes of violence, not to violence towards the child.  A finding that there was an unacceptable risk was not necessary to justify the Trial Judge’s decision.
The evidence included a statement given by the mother to police where she said:
            “I think I threw the cordial from the glass I was holding towards (her partner’s) face, which hit him.  I did not throw the glass though. 
            I then walked quickly into the kitchen as I didn’t know what to expect…our verbal argument continued and I think I was yelling and crying.
            To get his attention I pushed [him] as he was making me angry.  At this time we were facing each other.
            I saw [him] put his right arm back behind his shoulders.  Then I felt a sharp pain in my left ear and side of my face. 
            He then pushed me with both hands out of the hallway before slamming the bedroom door.  I looked at the door and saw that the door had broken near the bottom. 
            I then went into the lounge room and rang the police…After I hung up the phone I noticed that [he] had destroyed the bedroom door and ripped it off its hinges.  The door was in my daughter’s room in pieces…I remember trying to hurt [him], maybe by pushing him but I didn’t end up hurting him in any way.
            At this time [he] had grabbed me from behind to stop me hurting him.  We then pushed each other a number of times while we continued to argue. 
            I remember picking up a dolls house that was in the lounge room and throwing it onto the ground towards [him].  I don’t think this landed on or struck [him]…[He] and I have been partners since March 2003 and I am currently 15 weeks pregnant with a child to him.
            During the time we have been together there has been a number of incidents of domestic violence.  [He] is a much larger person than I am.  [He] is about 6’1 and weighs about 90kgs.  I am 5’11 and weigh about 75kgs.”
Finn J noted the Trial Judge’s finding was:
            “If the child was to live full-time with her mother, there would have been an unacceptable risk “that she would be exposed to scenes of violence”.  His Honour’s reference to “the possibility of exposure to violence” was made in the context of his interpretation of the various provisions of the Act which are concerned with the protection of children from violence or from exposure to violence including section 68F(2)(g) which contemplates “the need to protect the child from psychological harm that may be caused by …being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.”
The Trial Judge had noted that the mother had now adopted her new partner’s version of a second incident of violence and that she had resiled from her statement to the police that there had been a number of instances of domestic violence.  The mother also challenged the Trial Judge’s rejection of her explanation that the police had pressured her into making the allegations to them which she had made, with it being submitted that it was not open to the Trial Judge to attach the weight which he did to her alleged statement to the police, given that she had not been cross-examined specifically in relation to that statement or any retraction of it.
Finn J sets out at length the cross-examination of the mother on these matters for the reason that it established that notwithstanding the somewhat confused or even equivocal quality of her evidence, a finding that the child could well be exposed to scenes of violence in her household was open to the Trial Judge.  It also showed that, at least so far as the Trial Judge was concerned, the issue of violence was very much a live issue from an early stage in the trial. 
Her Honour found that it would have been open to the Trial Judge on the basis of the evidence before him to conclude that there would be a risk of the child being exposed to scenes of violence if she resided with the mother.  It was open to the Trial Judge to describe that risk is unacceptable, however he could have reached the conclusion that the child live with her father on the evidence concerning the violence which had occurred in the mother’s home without using the expression unacceptable risk as that was a phrase that did not appear in section 68F(2) and the case was not conducted on the basis of the need for a finding of unacceptable risk of some form of abuse or exposure to some form of abuse.

Putting your eggs in one basket

The mistake that is sometimes made when there has been a catastrophic event of violence is to focus just on that incident.  As Judge A Kelly said in Germain and Germain [2017] FCCA 1980 at [76]:
            “Applied to the present case, a single and historical notification of domestic violence may, viewed in isolation, be insufficient to support a conclusion of a real or immediate risk of physical or psychological harm to a child.  By contrast, a documentary record that discloses the repeated or systemic pattern of such behaviour might do so more persuasively.”
In A v A [1998] FamCA 25; (1998) FLC ¶92-800, when the children were in contact with their father, the wife was violently assaulted in the home in what appeared to be an attempt to kill her.  She suffered serious injuries and was hospitalised for over a month.  The evidence suggested that the injuries included a sexual assault.  During the period of hospitalisation, the children lived with the maternal grandparents and the husband has supervised contact. 
After a discharge from hospital, the wife lived with her parents for about two months and then returned with the children to her home.
The wife had no recollection of those events.  She however believed the assailant was the husband and there were a number of objective facts which supported that belief.  The husband was interviewed by the police immediately after the assault.  He denied involvement.  No charges were laid.  The wife gave evidence of a number of assaults upon her by the husband during the course of the marriage.  At trial the Trial Judge concluded that it was not the role of the Court to “investigate criminal activity, even though such activity may have a direct bearing upon the issues which the court is called upon to decide”.  It approached the matter on the basis of determining whether the wife believed that the husband was the assailant and whether there were reasonable grounds for that belief.  He concluded in the wife’s favour on both issues.  The evidence given by the court appointed psychiatrist indicated that the children, who were at that time unaware of the belief of the wife that the husband may have been responsible for the assault upon her, had a good relationship with their father and a strong desire to spend time with him.  The psychiatrist attached significance to the probable sexual nature of the assault and concluded that if the husband were the assailant, there was a risk that he would reoffend primarily against her but that there was a possibility that the children themselves could be assaulted.
The Trial Judge ordered contact at weekends and school holidays to be supervised for nine months and thereafter not to be supervised.  The Judge also ordered that the psychiatrist and the child representative explain to the children the orders of the Court and that the wife and the family believe that the husband is the assailant and that the husband and his family believe the husband is not the assailant.  He restrained the parties and the maternal grandparents from discussing the events of the night in question with the children. 
The wife appealed, contending there should be no contact and that she should have the right to inform the children of the assault.  The appeal was opposed by the husband.  The child representative supported the husband, submitting that the assault was a one-off affair, there was no evidence of previous assaults by the husband directed to the children and there was no unacceptable risk to them.  The Full Court held:
            “In cases of this sort often it is not possible for the court to form a positive view at one end or the other end of the sale of persuasion and it is not necessary for it to do so…the term identified by the High Court in M and M of “unacceptable risk” provides the touchstone for such an enquiry.  Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…” [3.25]
Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, where the contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, may place those children in circumstances of potential jeopardy in the future in their father’s care. 
His Honour said (quoted by the Full Court at [3.32]:
            “Although there have been allegations made by the wife of violence perpetrated upon her by the husband, culminating in the vicious assault…there is no evidence to suggest that the husband has behaved inappropriately towards the children, or exhibited any violence towards them.  The wife admitted in cross-examination that the children had never been caused any harm by the husband, except what she described as “emotional harm” which appeared to relate to allegations that the husband grabbed and yelled at the children on occasion.  The case mounted by the wife is that it was the husband who perpetrated the assault upon her and that any parent who would behave in such a manner towards the mother, or indeed the father, of his or her children, represents a poor role model for the children, thereby calling into question his or her suitability as a contact parent…”
The Full Court, criticising this approach said at [3.33]:
            “It appears to us that the opening sentences undervalue the concerns for which the court must have assessing the role of a parent as a contact parent where there has been domestic violence over a period of time.  Similarly the reference to the circumstance if the husband perpetrated the December assault that “represents a poor role model for the children, thereby calling into question (his) suitability as a contact parent” also undervalues what this case is about.” [Emphasis added]

Particularisation

The difficulty about raising violence is properly particularising.  A case, albeit in a property context, where this was front and centre was that of Britt and Britt [2017] FamCAFC 27.  The wife contended that her contributions towards the property of the parties and the welfare of the family were made more onerous by the coercive and controlling behaviour of the husband and the physical violence he inflicted upon her, consistent with the principles set out in Cannon [1997] FamCA 27; (1997) FLC ¶92-757.
That contention was not accepted by the primary judge for essentially two reasons.  First, much of the evidence relied upon by Mrs Britt was successfully objected to by Mr Britt and rejected by the Trial Judge.  Secondly, ultimately the Trial Judge did not accept the evidence that Mrs Britt had been admitted saying:
            “I cannot be satisfied on the balance of probabilities that any of the evidence the wife gave about the husband’s aggression or violence is true.  The wife was not a witness of credit and the evidence of Mr [K] is only as good as the truth of the things the wife told him.  The wife clearly has aggressive tendencies herself which leads open to question whether she would have meekly put up with her husband assaulting her.  The first ground of appeal was whether the evidence of family violence had been properly rejected by the primary judge.”
The Full Court said at [25] to [27]:
“25.     The primary judge, on the application of counsel for the respondent, rejected parts of the appellant’s evidence as to family violence essentially on the basis that the evidence was not in “proper form”.  The primary judge considered that the evidence consisted of conclusions, was “just too general” and lacked particularity.  In particular, her Honour was critical of adjectives such as “regularly”, “routinely”, “repeatedly” and “often”.  This was because these words lacked specificity and were too general.  Her Honour was of the view that such evidence gave no indication as to “whether [the family violence] happened once a week or once a decade”.  Further, scattered throughout the transcript are statements made by the primary judge to the effect that the evidence was not relevant to the issues before the court. 
26.       The primary judge rejected the following evidence from the appellant’s affidavit:
                        “I have been having a sexual relationship with [the respondent] since I was 11 years old.”
                        “Our first sexual acts were not consensual on my part”.
                        “[The respondent] dominated me throughout our relationship.  He has been violent and aggressive towards me prior to the time I commenced cohabitation with him.  He regularly forced me to have vaginal and anal sex with him without my consent, often causing me considerable pain and discomfort, throughout our relationship.  Our first sexual interactions were without my consent.  He routinely punched and beat me and was verbally rude and aggressive throughout our relationship.  He also routinely denigrated me in public, called me a “slut” and “scum” and regularly told people, including our children, that I was having affairs with other people.  He regularly drank heavily.  He would drink until he was extremely intoxicated.  He was always violent, aggressive and abusive after drinking, particularly towards me.  On numerous occasions during the marriage he said:
                                    ‘Why don’t you pack your shit and fuck off’ and
                                    ‘You are a bloody [dodo] ([a reference to] my maiden name).  Without me you would be back in the gutter where you started from.  That’s where you really belong’.”
            “For a long time while living at [property D] we only had one motor vehicle.  If [the respondent] left the farm he left in the vehicle and took the phone with him so I could not contact anybody”.
            “[The respondent] regularly left me alone on the property for days at a time while he went away socialising and drinking.  Sometimes he left in the afternoons saying he was going to the local hotel for a drink and would not return for a day or more.  He regularly came home extremely intoxicated.  When he was in this condition he was always aggressive and violent.  On these occasions he would punch me, hit me, try to choke me and grab me and dragged me around by my hair.  It usually took him more than a day of sleeping to recover.  Usually he had no recollection of what he had done to me when he awoke”.
            “I had no close family and few close friends.  My only contact with the outside world was on monthly and sometimes fortnightly shopping visits to [F town] when we went to one of the local hotels on the odd social occasion involving local people”.
            “I am aware that [the respondent] has been charged with drink driving offences on at least three occasions and he has wrecked at least two motor vehicles through crashing them whilst intoxicated.  In both cases the vehicle was uninsured and we suffered financial loss as a consequence.  In one of these cases he wrecked our [vehicle] the day we made the last payment on it.  [The respondent] developed an aversion to driving after these incidents and thereafter I always drove when we went anywhere”.
            “Whenever he was unhappy with me [the respondent] would hit and punch me, throw me to the ground, choke me or drag me somewhere by the hair to make his point”.
            “I lived my life in fear of him and often intervened when he attempted to hurt the children physically usually with the result that I was assaulted physically myself.  I was always anxious when he was drinking or when he returned to the farm after drinking.  If we socialised in the local area be (sic) would not stop drinking until he was extremely intoxicated and he would never leave the hotel until closing time.  On numerous occasions the children and I waited outside a hotel in the car until it closed and he was required to leave”. 
            “Prior to the final separation in in November 2011 I had left [the respondent] for short periods of many occasions.  Every time my responsibility to my children and financial necessity caused me to return.  On many of these occasions [the respondent] came and found me and forced me to return to the farm.  On other occasions he prevented me from leaving the farm by depriving me of the car keys and…”
            “I complained to [G town] police who spoke to [the respondent] about [his behaviour toward me on one occasion].  Thereupon [the respondent] started acting in a very caring way towards me.  He repeatedly said to me words to the effect:
                        ‘If you drop the complaint I will never hurt you again.  I promise. I am very, very sorry.  I was pissed when I did it.  I will give up drinking.  I didn’t know what I was doing.  I didn’t mean to hurt you.  I will never call you “a slut” again.  I promise.’
            “This behaviour continued for a couple of days until I relented and contacted the police and withdrew the complaint.  I did so partly because my self-esteem was so low after years of [the respondent]’s treatment that I did not consider anyone would believe my story against his.  I was at the point where I believed I deserved his treatment of me.  I still experience those feelings today”.
            “[The respondent] was not violent to me when other people were around although he still regularly denigrated me in front of other people.  I still feel guilty about the sexual acts he has forced me to perform although they are against my will”.
            “[The respondent] was never satisfied with the standard of my cooking, housekeeping or parenting.  He regularly criticised the meals I cooked to the standard of my housekeeping.  I had to wash up immediately after every meal.  If he was not satisfied with something he would make me do it again.  He sometimes made me repeat vacuuming several times a day.  He required me to clean the house and wash up the dishes from the family’s evening meal when I came home from the second or third jobs after midnight.  He was usually in bed asleep when I got home but if I didn’t do the cleaning I was abused and assaulted in the morning.  At the same time he required me to rise before him and do my morning chores and jobs before breakfast.  He remained in bed while I did this.  He usually got up about 8:10am when I had returned home from the 40 minute round trip to the bus stop.  In winter I had to get up at 5:30am to light the fire so the house would be warm when he got up.  He repeatedly said about my cooking:
                        ‘What is this shit, can’t you cook something better than this?  I’m sick of eating the same shit all the time’.
            Then he would throw his food out the door to the dogs and say:
                        ‘Now get your arse in there and cook something decent.’
            I would then have to prepare another meal.  I had never had any cooking training but learnt how to cook meat and vegetables.  We rarely ate meat other than lamb because we killed our own sheep and struggled to afford other food stuff.  At one time he agreed I could go to cooking classes.  After 4 classes he stopped me attending because he thought I was having an affair with someone there.
            He repeatedly made me re-iron clothes.  If he took a freshly ironed pair of trousers from a coat hanger and there was a slight mark where they had been hanging over the hanger he would throw the trousers at me and say:
                        ‘Have a fucking look at me.  I look like a fucking ragman.  I’m not going out looking like a fucking ragman.  Go and iron the fucking thing again and do it properly this time and don’t let it happen again.  Can’t you do anything properly’.”
            “Often whilst he was abusing me he would punch and hit me, push me to the floor or pull my hair and drag me.  I used heavy makeup and frequently wore long sleeve shirts, jeans and large dark glasses to conceal my bruising and black eyes.  I was sensitive and embarrassed about it in public especially when I had to turn up to work with bruises, black eyes and still emotionally upset…I even lied to a doctor when I had ear trouble and he asked me about the cause of it.  A hearing defect I have had for some years has since been diagnosed as being due to the beatings I received from [the respondent]”.
            “[The respondent] regularly administered corporal punishment to the children when they were young.  I often had to intervene to protect them and was punched and beat in the process”.
            “I eventually left [the respondent] because I could no longer tolerate the violent and abusive way in which he treated me throughout our relationship”.
27.       The appellant had also adduced evidence which, if accepted, was the third party had, on three occasions, observed bruising and been told that it had been caused by the respondent.”
The Full Court quoted the High Court decision in IMM v. The Queen (2016) 330 ALR 382 which explained sections 55 (relevant evidence) and 56 (relevant evidence to be admissible) of the Evidence Act and in particular at [40]:
            Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”.  Therefore, evidence which is relevant according to section 55 and admissible under section 56 is, by definition “probative”.  But neither section 55 nor section 56 requires that evidence be probative to a particular degree for it to be admissible.  Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.”
The Full Court stated at [32] – [35]:
“32.     As the above passage makes clear, section 55 of the Evidence Act proceeds on the basis that a trial judge cannot take the credibility, or lack thereof, of a witness into account when determining the admissibility of evidence.  Any issue of credit is taken into account later, when considering the weight or importance the evidence should be given. 
33.       Therefore, in determining the admissibility of the proposed evidence set out above, the primary judge was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous.  If the evidence could do so – that is, if it was not “inherently incredible, fanciful or preposterous” – it should have been admitted.
34.       In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence.  This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter.  This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
35.       Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.”
The Full Court stated at [38] to [41]:
“38.     The proposed evidence went to the relationship between the parties.  In proceedings of the Family Law Act, evidence of relationships and the parties’ contributions to their property is commonly given in general terms and in terms which are redolent of being a conclusion.  Affidavits would be excessively long otherwise.  For example, parties often describe “relationship commencing” or starting “to live together” and this evidence is routinely and unremarkably admitted.  Judges use their experience and, importantly, all of the evidence in a case to understand such statements.
39.       It is true, of course, that complaints of family violence raise serious issues.  Even so, there is not a higher standard for the admissibility of evidence of family violence compared to evidence on other issues.  In determining whether or not allegations of a serious nature have been proven, the Court will apply section 140 of the Evidence Act, but such a task is undertaken after issues of admissibility have been decided. 
40.       The issue of whether or not the particular passages set out above were impermissible conclusions is more difficult.  There is nothing in the Evidence Act that prevents evidence being given as a conclusion (save for expert opinion expressed as conclusions which can only be given by expert witnesses).  The test remains that posed by section 55 and section 56.  Thus a trial judge is required to consider whether the proposed evidence has sufficient, even if slight, probative value to make it admissible.  If the nature of the conclusion is such that it has no probative value, the evidence should be rejected.
41.       It was not entirely clear what evidence was rejected by the trial judge solely on the ground that it was a conclusion.  We are, however, of the view that none of the evidence which was excluded should have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion.”
The issue then became whether the excluded evidence would have made no difference to the outcome if it had been admitted.  The Court said at [76]:
            “The evidence is capable of suggesting, at least, that the appellant was often left alone at the property with the children, made to repeat tasks, work long hours and remained in the relationship because of her responsibility for the children and out of economic necessity.  The evidence is capable of establishing that the respondent was violent, to the extent of leaving bruises that were noticed by a third party.”
As to credit issues, the Full Court stated at [80] to [83]:
“80.     Further, we are concerned about the primary judge’s credit finding.  The primary judge rejected the appellant’s evidence for two reasons.  They were that:
            The appellant gave “a number of demonstrably false pieces of evidence during the proceedings” and
            Since separation the appellant “has behaved in an aggressive and confrontational way” towards the respondent and members of his family.  This conduct led to Apprehended Violence Orders (“AVO”) and to the appellant pleading guilty to assault and was placed on a good behaviour bond for breaching the AVO, intimidation and damage to property.  This led the primary judge to find that “the wife clearly has aggressive tendencies herself which leaves open to question whether she would have meekly put up with the husband assaulting her”.
81.       As to the first, this finding is, of course, based on the evidence that was before the primary judge.  We have, however, concluded that the primary judge did not have before her all of the available evidence.  If all the rejected evidence had been before her Honour it is impossible to be sure that the same credit finding would have been made. 
82.       As to the second, the conduct of a person after separation may not be a reliable guide to their behaviour during the relationship.  Further, it does not following assuming that one party was aggressive and violent at times during the relationship, that the other party was not also violent.”
Not surprisingly, the Full Court remitted the matter for a re-hearing. 
Some tips
As illustrated above, the usual test is whether there is an unacceptable risk.  Even if there is not an unacceptable risk, has there been an exposure of the child to family violence or abuse.  When you draft material, is the evidence relevant?  Where is the risk?  Too often I have heard judges say to solicitors or counsel: “But where is the evidence of risk?”
If there are mental health issues, how are they relevant?  Be careful not to put a diagnosis of the other party in the material.  There is nothing quite like reading: “My wife has Munchausen syndrome by proxy” to set the mind racing to ask the Court to draw inferences about propensity to throw mud at the other side.  Put the symptoms in the material instead.
A boss of an old friend used to say to her: “Come to me with solutions, not problems”.  Work the matter up.  Come to the court with your proposals about how to deal with the problem. Make the enquiries.  Don’t leave it to the court.  It might mean supervised time with a specific contact centre, which is available next week for 2 hours every fortnight on a Saturday, at a cost to each of the parties of $***.  Intakes can be had tomorrow.
Draft your proposed orders (either in the application or for the court on the day) accordingly.  Or it might be, for example, that QML is able to undertake urine drug screen tests at a cheap cost when there has been marijuana usage alleged – and they have a collection facility around the corner from the husband’s home that is open 12 hours Monday to Friday.
The more work you do in finding solutions for the court and your client will mean that not only will the court be grateful, but there is a high chance that some or all of your solutions will be accepted – either by the other side or by the courts.  Get your subpoenas out.  Get the court to get the file or the Magistrates Court if needed.  Rule 15A.03 of the Federal Circuit Court Rules.  Have a look at the rule as to what should be in your letter to the Federal Circuit Court as to what you are seeking from the Magistrates Court.
An often overlooked tool is a Notice to Admit.  Try and get admissions from the other side.  If they don’t provide you with the Notice Disputing Facts or the authenticity of documents within 14 days of having been served, they are deemed to have admitted it.  If they do dispute the matters and your client has to go to the cost of proving the matter, a costs order may be warranted in favour of your client.  A Notice to Admit can often save a lot of time, effort, anguish and cost. 
What’s your case plan?  At all times during the case from the moment the client first sat in your office to the end of the matter, focus on that case plan and your theory of the case.  How does the evidence stack up?
Changes of mind
What is someone changes their mind – so in the heat of the moment they mention what they think was abuse in the Notice of Risk, but by the time of the trial, are happy for the other parent to have unsupervised time?
A person as they say can be hoist on their own petard.  A Notice of Risk can do that.  Recently I had a client in that category.  The other party and the Independent Children’s Lawyer were quite rightly pointing out the inconsistencies of my client’s position.  A word to the wise is to be careful what you allege.  Your client’s words could come back and haunt them.  As happens sometimes, a party is hell bent on throwing muck at the other, may find themselves have very little time with their child or the care of the child being given to the other.
Don’t gild the lily.  Always ensure that your client is reality tested.  Test the evidence.  Always better to be tested in your office than for the first time in court. There is an art in obtaining a statement from your client. It is not getting written instructions from your client, nor even from one meeting. An extreme example was some years ago I had a trial where my client alleged that she had been raped by her ex, resulting in the conception of their second child. The judge didn’t believe her. The trial was going badly. The trial was adjourned part heard.
Out of the blue a mystery witness parachuted in, corroborating much of what my client said. I was highly suspicious, as was my client’s counsel. After a brief chat by her with my client’s dad, all communication with her was by me and then by counsel and me. I spoke to her at length on the phone. I interviewed her in my office and then at counsel’s chambers. That affidavit was proofed! When the trial resumed, we relied on the evidence. The judge was highly cynical about the witness- but when he heard her give evidence had no doubt she was telling the truth. Her evidence changed the outcome of the trial. If she hadn’t been so highly proofed, who knows what could have happened- but it could have had a disastrous outcome for my client.

Taking care on an interim application

Aside from the Chief Judge’s practice direction and the recent changes in the Family Court (whereby Notices of Risk have changed) there will no longer be exhibits or affidavits but a bundle of tender documents which have to be served on the other side at the same time as you serve the affidavit material – to be tendered later.  One of the things to consider is about whether you institute proceedings.  This is particularly so in the Federal Circuit Court because unless you are in a small registry, the applicant in drafting material won’t know which judge is going to hear the matter.  A respondent has a slight advantage on an interim application when drafting material, because the material can be closely tailored to address issues likely to be important to that judge.  At times, this can be a significant advantage and might mean that your client holds off filing, waiting for the other side to do so.  With a 10 page limit in that Court, being careful with words is more important than ever. 

Practice issue with family violence orders

Section 30CC(3)(k) notes that when a family violence order is made, the circumstances in which it was made, any admitted evidence and any findings can be relevant.
Do not make the mistake that merely because an order is made then certain inferences can be drawn from that.  Check your State legislation.  Check the form of the order.  Often orders are made by consent without admission.  I give you by way of example section 51 of the Domestic and Family Violence Protection Act 2012 (Qld) which provides relevantly:
“(1)     If the parties to a proceeding for a domestic violence order…consent to the making of the order, or do not oppose the making of the order, the Court may make the order –
(a)   if the Court is satisfied that a relevant relationship exists between the aggrieved and the respondent;
(b)   without being satisfied as to any other matter mentioned in:
(i)                 for a proceeding for a protection order – section 37(1)(b) or (c);
(ii)              proceeding for a temporary protection order – section 45(1)(b); and
(c)   whether or not the respondent admits to any or all of the particulars of the application.”
Section 37(1)(b) is “the respondent has committed domestic violence against the aggrieved”.  Section 37(1)(c) is “the protection order is necessary or desirable to protect the aggrieved from domestic violence”.  Section 45(1)(b) is “the respondent has committed domestic violence against the aggrieved”.  In other words, the Court does not need to be satisfied that any domestic violence has occurred at all or that an order is necessary for desirable. 
Careful inquiry needs to be undertaken by you as to how the order was made.  For example, was it made after a 2 day trial when there was extensive cross-examination of each of the parties?  Has a transcript been obtained?  Or was it made by consent without admission?  For the sake of completeness I have set out below the additional considerations under section 60CC(3):
“(3)     Additional considerations are:
(b)         the nature of the relationship of the child with:
(ii)             other persons (including any grandparent or other relative of the child);
(c)          the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)                 to participate in making decisions about major long-term issues in relation to the child; and
(ii)             to spend time with the child; and
(iii)           to communicate with the child;
(ca)      the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)         the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)                 either of his or her parents; or
(ii)              any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)          the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)           the capacity of:
(i)                  each of the child's parents; and
(ii)              any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)         the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)         if the child is an Aboriginal child or a Torres Strait Islander child:
(i)         the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)        the likely impact any proposed parenting order under this Part will have on that right;
(i)           the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)           any family violence involving the child or a member of the child's family;
(k)          if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)                 the nature of the order;
(ii)              the circumstances in which the order was made;
(iii)            any evidence admitted in proceedings for the order;
(iv)             any findings made by the court in, or in proceedings for, the order;
(v)               any other relevant matter;
(l)           whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)        any other fact or circumstance that the court thinks is relevant.”
One that is often overlooked but one that I ask that you consider carefully is item (i) the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents.
This is a useful catchall that is often forgotten. As the authors of the CCH Family Law Service state:
            “From a practitioner’s point of view this is a particularly important section dealing with the issues that go to the core of their client’s case.
            It is the one that the court places a lot of reliance upon in making orders regarding children as it demonstrates such things as:
·         whether a parent is child focused;
·         the majority of a parent;
·         the long term parenting issues such as attitudes to schooling, childcare, television, diet and all the other parenting issues.”

Drafting issues

Before you draft anything, I suggest that you look carefully at section 60CC.  Keep the material relevant.  Try and keep hearsay out.  While section 69ZX gives great latitude as to what material may be admitted, what weight should it have?  Time and again poorly drafted affidavits full of hearsay are filed, with very little weight.  Sooner or later a practitioner engaging this practice will have a costs order made against them.  If you have time, go over your affidavit again and again until it is right.  Use headings.  Paginate long annexures or numerous annexures.  Now in the Family Court you will be paginating a tender bundle.  Have a scheme about how the affidavit is set out.  Imagine you have a lazy judge and put the knockout bits right at the beginning, the dull stuff at the end.  Draft consistently with your case plan.
Again, it helps if you know who your judge is and what their likes and dislikes are.
Try and keep it as short as possible.  No-one, not even judges, wants to read War and Peace.  Your version is unlikely to be as entertaining as Tolstoy’s.
Stephen Page, 16 February 2018


[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane.  Admitted in 1987, he has been an Accredited Family Law specialist since 1996.  Stephen is a Fellow of the International Academy of Family Lawyers, a Fellow of the American Academy of Adoption and Assisted Reproduction Attorneys and an international representative on the ART Committee of the American Bar Association, amongst others.
[3] [1995] HCA 20; (1995) 183 CLR 273.