Sunday, 14 March 2010

Family Court case: balancing violence v. ongoing relationship

One of the most common issues in Family Court cases is how to balance the effects of domestic violence against the rights and needs of the child to have an ongoing relationship with the perpetrator of that violence.

A clear illustration of this balancing act was seen in the recent Family Court case of Bookhurst and Bookhurst, a decision of the Full Court. The father appealed from various orders made by Justice Rose. It was common ground that the father had an explosive temper, and had at times beeen violent, including punching a stranger while carrying a baby, and on another occasion while naked holding a knife to his throat in their kitchen, making death threats. The mother decribed that "we":

'lived our family life in constant fear that there was always the trigger of provocation' from unintended word, action or lack thereof, or facial expression, or mention of someone who the father disliked. On the other hand the mother states in her primary affidavit that there were many happy and enjoyable times for the family.

Justice Rose held:

So far as the evidence of the father is concerned in relation to disputed allegations of fact, I have taken into account the admission that he has made of violent behaviour, shouting and tirades directed to the mother and his longstanding difficulties over many years in controlling his outbursts of anger, his recognition of the need to have professional assistance to improve his control over his impulsive poor behaviour in that regard, his continuation of verbal and written abuse of the mother last year, notwithstanding that at the time he had been consulting with a psychiatrist. These proceedings were of course pending last year and obviously that did not result in the father being able to refrain from continuation of his abusive conduct to the mother.

Justice Rose accepted that “the mother has been motivated at all times to ensure that the three children are protected from the effect of the father’s temperamental shortcomings”.

The father appealed from an order requiring him to have supervised time with the children until a report was obtained from a psychiatrist or psychologist. The report had to cover these issues:

(a) The name, place of practice, qualifications, and experience in providing adult therapy.

(b) The Reasons for Judgment given this day has been read by him/her.

(c) The nature and extent of therapeutic treatment provided to the father.

(d) The unqualified opinion that the father does not nor is it reasonably foreseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.

The father also appealed from an order granting the mother sole parental responsibility in relation to the health, religious and cultural upbringing of the children.

Supervised time/ the order for the report

The Full Court remitted the matter for rehearing on this point, because of evidence of a psychiatrist given on the appeal that no psychiatrist could do ethically what was asked of him or her by the trial judge. The Full Court stated:

As we see it, the issue to be determined is what time should the children have with the father, if it is to be supervised, for how long such supervision should persist, and that some review mechanism be set in place.

 Sole/shared parent responsibility

Justice Rose stated:

So far as the major long term issue of religious and cultural upbringing is concerned, the children have been brought up in a household in which the Jewish religion and culture has been celebrated at the behest of the mother, her extended family and with the positive support of the father. To that extent, it has been to his credit as otherwise discord would have been a further potentially troubling issue to be dealt with, not only by the parties, but also by the children. However, communication between the parties is poor and the father has a history of being prone to abusive outbursts to the mother which cannot be understood in the circumstances which then prevailed. Until such time as the father has the benefit of therapy, I do not have confidence that communication in relation to those matters between the parties is likely to be fruitful. Consequently, I have found that it is in the best interest of the children that the mother have sole responsibility for the major long term issues that I have designated. With regard to the remainder of the long term issues, the parties appear to be at one.

The Full Court dismissed the appeal on this point, saying that Justice Rose had not erred in the exercise of discretion.


Ruthie said...

One of the greatest injustices faced by mothers dealing with family law in Australia, is that which prevents her protecting an abused child, because that child is presumed to be better to have a relationship with the father, than be kept away from possible violence.

Relationships with violent parents, or any parents, do not require overnight contact. They require an effort be made to know one another, and maintain that knowledge. The idea that family courts must enforce certain kinds of contact for the sake of a child's best interests, seems to me to be a deceit.

Lynn said...

"this balancing act"

Why does it have to be a balancing act? Responsible fathers do not have explosive tempers, act dangerously around children, use violent behaviours. Therefore, if he's demonstrated that he's not a responsible father, why does there HAVE to be a relationship with a child, which is said to be "good" for the child and in the "child's best interests".

The answer is that it's not.

Why does the Family Courts pussyfoot around these violent men who have kids and expect them to become responsible fathers?

It's just insane.