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
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.
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). 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.
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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.
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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.
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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.
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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
