Tuesday, 15 May 2007

Case: Family Court of Australia: Domestic Violence

The Family Court in Poblano and Millard [2007] FamCA 207, dismissed a father's application to spend time with his 7 year old daughter, with whom he did not have any relationship.

The court rejected his application in the context of what can only be described as his vile, denigrating violence and stalking of the mother and her partner.

The court accepted that family violence and risk assessment are matters to be dealt with under the 2006 changes to the Family Law Act, and that family violence is now arguably more important than before.

Here is what Justice Ryan said about this issue:
Family violence and risk assessment
99. Family violence is a significant issue in these proceedings. With the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 it arguably has even greater prominence than beforehand. The definition of family violence is widened and is now defined as being “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.” (See s 4). In a note to the definition it is explained that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.” Thus the notion of fear has both an objective and subjective element.
100. In the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (8 December 2005) Parliament explains the significance and effect of its intention concerning the s 60B(1)(b) object and in doing so highlights its prominence. It states:
35. The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term ‘subjected to’ has been retained as well as ‘exposed to’ in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person.
101. At page 13 the Explanatory Memorandum says:
48. The amendment to section 60CC creates two tiers of considerations that the court must take account of in determining what is in the best interests of a child. The primary considerations are contained in the new subsection 60CC(2). They include the benefit to the child of having a meaningful relationship with both parents and the protection of the child from physical and psychological harm. The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents. The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B (inserted by item 8).
49. For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child’s views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.”
102. In addition to the objects (s 60B(1)(b) and inclusion of family violence as a primary consideration (s 60CC(2)(b), s 60CG requires the Court to “ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence.” The Court must do so to the extent possible consistent with the child’s best interests remaining the paramount consideration. As discussed earlier s 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence.
103. By s 60J people are not required to attend family dispute resolution where there has been child abuse or family violence by one of the parties to the proceedings but shall be provided with information about the services and options that are available to them. This will ensure that people are made aware of services and options (including alternatives to court action) that are available in circumstances of abuse or violence. Section 60J(2) provides an exception to the requirement in s 60J(1) where there is a risk of child abuse or family violence if the matter is delayed getting to court. While the intention of s 60J(1) is to ensure that victims of violence have information on the services available to them, the exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible
104. Section 60K places an obligation on the Court to take prompt action in relation to allegations of child abuse or family violence.
105. Section 60I(9)(b) provides that attendance at family dispute resolution is not required where the Court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.
106. In their totality these changes are consistent with principles which emerged, but which were not universally accepted, from a series of pre Shared Parental Responsibility Act 2006 cases. Particularly Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580. In Patsalou, as the trial judge, Moore J discussed the significance of family violence and in doing so said the following:
“Any suggestion that such behaviour is only relevant to the welfare of children if it ‘took place in the presence of the children’ or they were ‘made aware of it’ cannot be supported. In my opinion, the denigration of one parent by the other and the perpetration of violence by that parent against the other is of importance when assessing where the interests of children lie and what future arrangements might best advance their welfare.
Denigration and/or assault put the target of this behaviour under considerable unnecessary strain which may, in turn, impinge upon the quality of parenting able to be offered to the children for whom that parent bears or shares responsibility. For a parent to conduct himself/herself in such a manner towards the other parent reflects poorly on the assailant's capacity to recognise that by this behaviour they may erode the confidence, dignity and self esteem of the children's other parent and thereby place the quality of parenting able to be offered under unnecessary strain.
It also reflects poorly upon the assailant's capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress.
Moreover, the effect upon children of inter-spousal violence is now the subject of a considerable body of research. This shows that, though the effects may vary depending on a number of variables, including age and stage of development of the child and frequency and extent of the violence, they may be profound and long-lasting.”
107. Even if the issue was not addressed in submissions, the Court was previously required to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 837.
108. The legal principles to be applied in the case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. These principles are applicable to all allegations of risk of harm, including family violence. See A v A (1998) FLC 92-800. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. The High Court discouraged such findings saying that there are “strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so”. (at 77).
109. Before it can make a positive finding that a parent has abused a child, the Court needs to be satisfied according to the civil standard of proof (see s 140 of the Evidence Act 1994 (Cth).
110. If the Court determines that it cannot or should not make a positive finding that there has been violence, the Court must determine whether in all the circumstances there is an unacceptable risk of it. The manner in which the Court conducts an assessment of the risk of future harm is set out in A v A (supra). The approach there described is applicable to all allegations of future harm. The Full Court said:
“The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband ... In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact. 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 this scale of dissuasion and it is not necessary for it to do so.”
111. The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
“The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.”
112. If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus.
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.”

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