The family courts take family violence very seriously, to the point where if it is found to be present in a parenting matter, it rebuts the law’s presumption of equal shared care, and overrides the child’s right to a meaningful relationship with the violent parent. And in 2011, the Family Law Act 1975 was amended so that the definition of family violence was broadened to include behaviours involving coercion and control, not necessarily obvious physical violence. Another aspect of our family law system is that courts demand that co-parents support and facilitate their children’s relationship with the other parent. And in cases where a parent deliberately tries to thwart a child’s relationship with their other parent, this can also have the consequence of the court making changes to a child’s custody arrangement. These two related issues—coercion and control, and lack of support of the other parent—came to the fore in a recent appeal case and it highlights just how crucial they are when courts consider the best interests of a child.
In Lancefield & Lancefield (court-ordered pseudonyms), there was a parenting dispute over where the children should live. The children, aged 9 and 11, had been living with the father for three years but the trial judge ruled that the father had been coercive and controlling towards the mother, and this finding was “pivotal” to the consequence of ordering a change of residence.
Now in this case, the father did appeal the trial decision on the basis that the primary judge had misstated and misconstrued certain elements of the evidence. And the appeals court agreed that the primary judge had made errors that influenced the ultimate negative findings against the father and the outcome. The appeal court finding was that the primary judge had erred in not handling correctly some evidence relating to how the father had supported the mother’s relationship with the children. The matter will now be reheard before a new judge.
But this father’s success in overturning his trial judgment doesn’t mean the appeals court didn’t think he’d been controlling and coercive. The parties seemed to be in agreement that he engaged in surveillance behaviours which could be regarded as coercive and controlling. The father however argued he had a good reason to monitor the mother, namely her well-documented battles with depression and anxiety. It remains to be seen if he succeeds with this argument.
The appeal court apparently didn’t find fault with the application of the law (reversing custody over coercion and control). The fault was with whether the primary judge had adequately considered all the evidence. There were things like the fact that, for instance, having decided that the father had been coercive and controlling, the primary judge only really went on to consider the negative aspects of his parenting, when it came to the second issue of how well he supported the children’s relationship; with their mother. The appeal judges agreed with the father that the trial judge should at least have considered both the ‘good’ and ‘bad’ evidence against the father.
Regardless of what a new judge will ultimately rule in the remitted hearing, the case is illustrative of how the courts consider controlling and coercive behaviours to impact on parental capacity and the quality of parenting—with the original judgment finding the father was not a good role model for the children because he had engaged in stalking-like behaviours that amounted to coercion and control and therefore family violence. And the matter also highlights how important it is to support a co-parent’s relationship with the children.
If you are interested you can read this judgment in full here.
You can also read about how to protect yourself from surveillance and digital abuse on our blog here.
Do you need family law advice? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.