Monday, 18 August 2008

Federal Magistrates Court: alienating father leads to shared care

In the recent Federal Magistrates Court case of Delaney and Delaney, it took Federal Magistrate Walters over a year to deliver judgment in relation to a 12 year old boy (now 13) called M. At the conclusion of the trial his Honour decided to put in place a week about arrangement, despite clear evidence of the violent nature of the husband, including on one occasion attempting to choke the wife with electrical chord, and the finding that the husband had engaged in alienation of M from the mother.

His Honour also found, as to the credit of the husband:



He was... one of the least impressive witnesses that I have ever heard (whether as counsel or during my years on the bench). Unfortunately, much of his evidence was inconsistent and non-responsive. His demeanour in the witness box radiated insincerity, and fluctuated between what I can only describe as a state of passive aggression (on the one hand) and a quite disconcerting form of obsequiousness (on the other). I find myself unable to give weight to almost anything that he told me. He gave the impression that he has nothing but contempt for the wife, and he clearly has no respect for her, as a person or as the mother of his child. I am satisfied that he is a controlling and manipulative person, who was unwilling to be open and direct with the court. He tried to give the impression that his sole motivation was his earnest desire to protect [M] from the supposedly dire consequences of contact with the wife's appalling lifestyle, but I simply do not accept that husband’s actions have ever reflected a genuine desire on his part to protect [M] in any way whatsoever. Nor do I accept that there has ever existed a real need to protect [M] from the wife, or from her lifestyle. I find that the husband’s primary motivation in his dealings with the wife in relation to the subject of [M]'s care has been his drive to punish her, and to remove from her that which she most values and desires (namely, the love, respect and company of her son).


His Honour also relied upon English cases as to domestic violence that are not often cited in Australia:

In relation to this subject of family violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 60CC of the Family Law Act.
As I have already recorded, in Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) if also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the husband to change. It is often said that, notwithstanding the violence, the wife must nonetheless bring up the children with full knowledge in a positive image of their natural husband and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a husband, like this husband, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.


His Honour found that, with one exception, the arrangement for shared care had for the previous year appeared to be working, and therefore ought to continue.

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