We are seeing more and more cases where the Family Court is taking a very definite step in making orders removing some violent parents from their children’s lives altogether.
In a recent case, the Family Court effectively “eliminated” a violent father, and a set of enabling grandparents, from a boy’s life altogether. The court found there was nothing positive about having those relatives in the boy’s life at all and that basically there was no right of the father to have a relationship with his son.
Let’s take a look at the particular facts of this case:
The mother had been subjected to “a grotesque history” of abuse by the father and had been in protracted litigation over the ten-year-old child. The boy had spent the first eight years of his life living with his mother, but had been living with the father since being detained by him after a court-ordered visitation 18 months ago.
The Family Court ordered that the boy be returned to live with his mother, that she have exclusive parental responsibility, and that there be no contact with the father or paternal family other than occasional written correspondence, unless the mother in future decides otherwise.
The traumatic nature of the case becomes patently clear on reading the court judgment. The repeatedly violent nature of the father is exposed, along with the Family Consultant’s fears that the risk of harm to the child while in the care of his father was “extremely high” and in fact “that the level of violence may potentially be lethal”. In other words, the risk that the father could kill the child was simply too high.
In this complex case, the mother was seeking the child live with her, while the paternal grandparents had intervened as a party to seek that the child live with them and have contact with the father supervised by them.
It appears the boy had warm and loving relationships with both his mother and somewhat surprisingly, also his father, and the paternal grandparents. However, he was also surrounded by risk. On the one hand, there was the well-documented risk of violence from his father. On the other hand, the mother’s current partner was temporarily accused of abuse, which was investigated but not prosecuted or substantiated, and ultimately dismissed. The father later abandoned that part of the court action.
The court found there was no risk of harm from mother and her husband, but along with the concerns of the experts of potential lethal physical violence, there was also “potent risk of psychological harm” from the father due to his violent conduct.
It was clear from the evidence that the father had been repeatedly violent towards many domestic partners in the past—the violence included a “relatively clear pattern of his choking, sexual abuse, and threats to kill as the means of coercive control of his partners”. The man’s prosecution and conviction for such violent conduct was rare, but the court said this was simply because his partners were intimidated and afraid of him and criminal cases didn’t proceed.
Despite the numerous instances of violence in her own situation, the mother basically was unable to go to a criminal court as a witness against her former partner. One can well imagine the state of helplessness and terror the mother found herself to be in. The relationship between the parents had been characterised by the father’s violent conduct towards the mother, often in the presence of the child. The mother was subjected to beatings while pregnant, was raped in a railway carpark after separation and, the court noted, there were at least 21 reports of violence against the ex after that rape.
The judge noted that this family “were well known to the police and the Department (DOCS) for that reason, though little was seemingly done to avert the problem”.
The judge in evaluating risk noted the man’s “general propensity to violence in personal interactions with others besides romantic partners”, such as neighbours. It was also noted that the man was “not used to compliance with court orders or submission to authority”. It is this violent nature, disregard for the law, and violation of the rights of others that led the Family Consultant, a clinical psychologist, to form the view that the father met the diagnostic criteria for Antisocial Personality Disorder, a disorder which is very difficult to treat and has great impact on parenting ability. The judge noted this view, but pointed out that it was the behavioural pattern which was more important, rather than the label.
All of these factors led the judge to “comfortably establish” that the father posed a potent risk of harm to the child. While supervised visits were an option, the judge noted the problem of long-term, indefinite supervision orders, due to the impact on the parent-child relationship, which could ultimately “lead a maturing child to wonder about the need for it: whether the parent is dangerous or deficient”.
While the grandparents had sought to supervise the father’s contact, the judge dismissed this, finding the grandmother incapable of adequate supervision, not least because she did not genuinely believe in the need for it.
Justice Austin was particularly scathing towards the paternal grandparents, finding them “little more than apologists for the father” and “complicit” in detaining the boy. They demonstrated a lack of insight into their son’s violence and were enabling and excusing of the man’s appalling behaviour. Even with the grandmother’s “newly acquired alarm” about her son’s level of violence as exposed during the court proceedings, she still pressed for the child to spend unsupervised time with the father, demonstrating her complete lack of insight.
The mother’s fragile emotional state and her fear of dealing with the ex-partner were not regarded by the Family Consultant or the judge as impacting negatively on her future parenting ability, unless she were forced to continue to have fraught interactions with the paternal family through shared contact. The Family Consultant found the mother presented with signs of depression and anxiety and felt she may qualify for a diagnosis of Post-Traumatic Stress Disorder by reason of her victimisation by the father’s family violence. She was “pessimistic about her experience with the paternal family and the litigious process and was on the verge of capitulation”, with the parties “mistak(ing) her disconsolate resignation for voluntary consent”. The mother’s submission to arrangements in the past was seen as a function of the power imbalance existing in the family, where in fact the paternal family was viewed as having had “all the power”.
Both the Family Consultant and the Independent Children’s Lawyer recommended similar proposals–that the boy return to his mother, and have no contact with paternal family members. Though it was acknowledged that the child’s move to live with his mother would likely cause “his sufferance of grief and a sense of loss”, the Family Consultant prioritised the child’s emotional stability and said the risk of harm of living with the father outweighed the sense of loss. The child had already been negatively affected by the case, experiencing anxiety and stress through “trying to manage the present tension between the mother and paternal family”.
Anticipating hypocritical outrage on the paternal side following the judgment, the judge pointed out that the father must have been aware of the possibility of such an outcome given it was he who had originally sought to eliminate the mother from the child’s life.
Ending the litigation and the interaction between parties raised hope for “peace and tranquillity in the mother’s household after all the litigious tumult” of the horrific case. Hopefully this outcome will enable the mother and child to rebuild their lives.
Do you need help with a family law matter involving an abusive ex-partner? Here at Alliance Family Law we take a strong stand against family violence and aim to provide our clients with compassionate, empathic and confidential advice. Please call (02) 6223 2400 to arrange your free first conference with Cristina Huesch or one of our other experienced solicitors.
(Source: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1051.html)
