Family violence and family court – a case study
With the focus of two current Government inquiries which seek to examine family violence issues, we hope that positive political steps can be taken to properly deal with this ongoing problem in Australia. In the meantime, let’s take a look at a recent case in the family courts to see how matters involving family violence are handled there. While the circumstances of each court case are obviously unique and involve different families, family law professionals and judicial staff, the case of Jardine & Sackville (court-appointed pseudonyms) illustrates how parenting disputes involving family violence can be resolved in the family court system.
In this case, the mother sought for “the father’s elimination from the children’s lives”. It’s a stark phrase that, in the absence of context, can cause instant outrage. But when you read a judgment like the one in this case, you can see why the court system found this to be a justified outcome and in the children’s best interests.
The case is also an example of how, when confronted with allegations of family violence, abusers often counter that they are victims of “parental alienation”. Because of this misuse of the concept of parental alienation as a strategic counterclaim in family violence cases (usually it is mothers who are accused of alienating fathers from their children by falsely claiming to be victims of abuse), the term is quite controversial.
Brief case background
This litigation involves two kids aged six and eight. The parents were in a de facto relationship for eight years before the mother ended the relationship after being seriously assaulted by the father. She and the children moved in with the maternal grandparents, and an Apprehended Violence Order (AVO) was put in place protecting the mother and children from the father; lasting two years, it was due to expire in July this year. The children have had no contact with the father since they moved away two years ago, as per the terms of the AVO.
The father began court proceedings, originally seeking for the children to live with him rather than the mother, but later changed his application to ask for them to live with the mother and spend time with him. He also sought equal shared parental responsibility.
The father has a history of violence and criminal convictions, both against the mother, a previous partner, relatives and against a range of other people including random members of the public. After a lengthy analysis of the evidence, the court found the father did pose a “material risk of harm to the children”.
Making orders consistent with the AVO, as well as the views of the Family Consultant and the Independent Children’s Lawyer, the judge found “there should be no enforced change to their current estrangement from the father.” He said supervised contact was not an option as, even if supervision at a contact centre prevented the father physically harming the children, it could not prevent him psychologically harming them. The children will therefore continue to spend no time with the father and have no communication with him. When the current AVO expires, it will be up to the mother to decide if, when, and how the kids have contact with him. However, once you read the judgment and realise how justifiably “petrified” the mother is of him, it’s more than likely she will apply for a fresh AVO.
The mother was also granted sole parental responsibility.
As the court proceedings progressed, the father made a series of further applications, successfully applying for the initial judge to disqualify herself. He also applied to have the Independent Children’s Lawyer discharged, on the basis of bias, but this application failed. (We wrote about that aspect of this case here.)
He also filed an unsuccessful application seeking to have the mother submit to psychological assessment, and he tried to obtain an adjournment of the final hearing on the basis that he wanted a different Family Consultant to prepare a new Family Report, because he was dissatisfied with the content of the first report. Although he was unsuccessful in obtaining the adjournment on that basis, he was able to secure an adjournment because of the (relatively new) provisions of the Family Law Act which prohibit an alleged abuser from personally cross-examining their alleged victim. As his Legal Aid representation had been withdrawn just prior to the slated final hearing, he was granted the additional time to seek new representation, to avoid him suffering prejudice on that basis.
Parental alienation or parental protection?
It’s undisputed in this case that the mother physically isolated the kids from their father. While she currently has a state law mandated AVO allowing her to keep the children from him for their safety, if the federal Family Law Act were to make orders giving the father access, this would override the state law. As such, she sought family court orders preventing his further contact.
So the family court looked at the mother’s motives. Was the intention of eliminating the father from the kids’ lives to “impair their filial relationship with him”? Or was it to protect them from physical and psychological harm?
The father claimed she had the “intent to deliberately destroy their relationship” for no good reason. But this was contrary to evidence from the Family Consultant and the police and court evidence regarding his violent behaviours.
Mountains of evidence against the father
The judgment takes us through the “overwhelming” evidence as to the father’s past perpetration of family and other violence and his propensity to continue to do so. Bear in mind, the judge considered only “evidence which is either conceded by the father or is indisputably established by independent records”. The judge said, “The controversial evidence can be left to one side”. This means many of the mother’s further allegations (such as cruelty to family pets) were not considered. As such, any potential claims by the father’s supporters of “false allegations by the mother” could never be supported in this case.
So the “completely uncontroversial history” is that he has been convicted of numerous serious criminal offences and has been imprisoned several times. Apart from his convictions for family violence, his crimes include offences such as assault occasioning actual bodily harm, kidnapping, stalking, and a range of instances of intimidation and threats “made to business proprietors, their employees, insurance investigators, real estate agents, tenants, and parents of school children”.
Minimisation and denial
Despite all the tangible proof against him, the father continually denied and minimised his own behaviour. He demonstrated a complete lack of remorse and rejection of responsibility for his behaviour and even alleged that any violence in the relationship with the mother had been “mutual”. But this attempt to suggest the mother was equally violent did not sway the court, partly since he had also inconsistently proposed the children live with the mother or spend substantial unsupervised time with her.
The father told the Family Consultant that spending time with the children was his “God given right”. But in fact, as the court decision ultimately reflected, it’s children who have a right to safety above all. The judge noted, “The children’s best interests remain the paramount consideration and their safety must always be prioritised over idealised family models (s 60CC(2A))”.
You can read this case in full here.
If you would like assistance with a family law matter, particularly with a matter involving family violence with which our firm has substantial experience, please contact Canberra family lawyer Cristina Huesch or one of our other 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.