Tuesday, 19 August 2008

Federal Magistrates Court case: example of how the court deals with allegations of domestic violence

In the recent Federal Magistrates Court case ofBergin and Grove, the court dealt on an interim basis with allegations by the mother that the father had been emotionally and verbally abusive. The father denied the allegations, saying that any anger by him was dealt with "appropriately and respectfully". The mother also sought that

Shared care

Federal Magistrate Brown held:


The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.


Allegations of family violence

His Honour held:

Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the Marriage of Patsalou (1994) 18 Fam LR 426].

Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.

However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.

Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.

The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.

Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.

The mother’s complaints against the father are of verbal and emotional abuse. The father denies the gravamen of the mother’s allegations against him. It seems to be his position that, if he has behaved inappropriately in the past, it has been as a result of the parties’ unhappy situation with one another.
The parties have been separated for over a year now. There is no independent verification of the mother’s complaints against the father. In this regard, I do not find the email from Ms G to be helpful.
The document is not on oath and the person concerned is likely to be strongly aligned with the mother.

In this context, I must make some assessment, on all the evidence currently available to me and determine, from that evidence, the level of risk the father’s alleged behaviour poses to the children concerned and make orders commensurate with that risk.

In carrying out this balancing exercise, I must also bear in mind that there may be risks to both [B] and [C], in terms of them having an ongoing and meaningful relationship with their father, if I allow them to spend only brief periods of time with him. The years of early childhood are important for children to develop parental bonds, which are likely to be highly significant to them in their later years.


Once issues of family violence have been raised, which is a common occurrence in cases of this kind, I must be careful not to overlook a child’s entitlement to have a meaningful relationship with both of his or her parents.

In all the circumstances of this case, particularly given that both children have been spending time with their father, in the period since their parents’ separation, I consider that significant emphasis should be given to the benefits of [C] and [B] having an ongoing and meaningful relationship with their father.

From the father’s point of view, his relationship with both the children will be imbued with additional meaning, if he is able to spend time with them in a variety of settings. In particular, he wishes to be able to spend time with both [B] and [C], in his home environment, during the evening on both a school and weekend night.
No doubt, he hopes this will encourage the children to feel that he is an active part of their lives and is not confined to a wholly subsidiary role as a “contact” parent. I think there is some force to the father’s submission in this regard, particularly given the limited time the children have spent with him up to this stage. I am concerned that the mother’s proposals will not be adequate enough to enable [B] and [C] to have a sufficiently meaningful relationship, with their father, as envisaged by the applicable legislation.



Presumption of equal parental responsibility: s.61DA(3)

As to the discretion not to apply the presumption of equal shared parental responsibility, his Honour held:

In my view, the discretion is to be engaged when potentially very serious matters of family violence or child abuse are raised, in the material before the court, which can be neither definitively established nor definitively negated, within the context of an interim hearing. In the circumstances of this case, I do not think that the discretion should be engaged because of the pre-eminence required to be given, by the court, to issues of child protection.

Having considered all the relevant section 60CC factors and having analysed the evidence, as best I can, I have come to the view that it is likely to be in the children’s best interest for the presumption of equal shared parental responsibility to be applied.

I reach this conclusion because of the likely significance, to both [B] and [C], of their paternal relationships and the likely benefits both will gain from having a meaningful relationship with their father.



COMMENT:


This case again highlights the conflicts facing practitioners when they come before the court. They have conflciting duties to their clients and to the court. The court expects material to be short and to the point- so that interim applications are bale to be decided within 2 hours total. By contrast, if practitioners are instructed by their clients about domestic violence, then in view of the skepticism expressed by Brown FM that domestic violence allegations are "easy to make and difficult to refute" and his expressed view that there can be "provocation and incitement", and that there was no independent verification, then practitioners will probably need to pull out all stops to particularise the domestic violence, have corroborating evidence and show to the court the overwhelming flavour of the evidence so that it has some impact.

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