Carra and Schultz
[2012] FMCAfam 930
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARRA & SCHULTZ | [2012] FMCAfam 930 |
| FAMILY LAW – Parenting – whether one parent withholding a child from the other by itself amounts to family violence in accordance with the definition introduced by the 2011 amendments to Family Law Act – filing of Notice of Child Abuse, Family Violence or Risk of Family Violence in inappropriate circumstances. |
| Family Law Act 1975, ss.4AB, 67Z(3) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 |
| Applicant: | MR CARRA |
| Respondent: | MS SCHULTZ |
| File Number: | DGC 1700 of 2012 |
| Judgment of: | Hughes FM |
| Hearing date: | 6 July 2012 |
| Date of Last Submission: | 6 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weerappah |
| Solicitors for the Applicant: | Bayside Solicitors |
| Counsel for the Respondent: | In Person (via telephone link) |
ORDERS
The notice of Child Abuse, Family Violence or Risk of Family Violence is withdrawn.
The Registrar of the Federal Magistrates Court at Melbourne is requested to advise the Department of Human Services that, in the view of the Court, the Notice should not be acted upon by the Department as it was not appropriate in the circumstances of the case.
The matter remains listed on 24 August 2012 at 9.30 am for mention or interim hearing.
IT IS NOTED that publication of this judgment under the pseudonym Carra & Schultz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 1700 of 2012
| MR CARRA |
Applicant
And
| MS SCHULTZ |
Respondent
REASONS FOR JUDGMENT
On 7 June 2012, the father filed an application seeking orders enabling him to spend time with his six year old daughter. Along with an affidavit in support, he filed a Notice of Child Abuse, Family Violence or Risk of Family Violence (“the Notice”) which alleged that the mother of the child had engaged in family violence according to the definition introduced by amendments to the Family Law Act which took effect that day.
The first return date of the application was 4 July 2012. Early in the day, the father’s solicitor confirmed that the only behaviour alleged to constitute family violence was the mother’s failure or refusal to allow the father to spend time and communicate with the child, except through occasional telephone calls. There was no previous history of violence alleged. Before the matter was stood down I indicated an intention to have a discussion with the father’s solicitor about the appropriateness of the filing of the Notice when the matter was recalled.
Later in the day, the mother was ordered to file responding material and the matter adjourned to 24 August 2012. I omitted to return to the issue of the Notice. I arranged for the matter to be relisted two days later, on 6 July 2012, for that purpose. The mother, who was unrepresented, participated by telephone that day.
After hearing submissions from the father’s solicitor, I ordered that the Notice be withdrawn and that the Registrar of the Court advise the Department of Human Services that, in the view of the Court, the Notice should not be acted upon as it was not appropriately filed in the circumstances of the case. Although brief reasons for decision were given on the day, I indicated I would provide more formal reasons for decision at a later date. These are those reasons.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 introduced a number of changes to the Family Law Act concerning family violence. One significant change was to the definition of “family violence”; another was to introduce a definition of “exposure to family violence”. Those definitions are set out in s.4AB as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child’s family.”
Subsections (1) and (3) are the operative parts of the definitions as they set out what is meant by family violence and exposure to family violence. Subsections (2) and (4) set out non-exhaustive examples of behaviour which may come within the definitions. The examples do not form part of the definitions. Presumably, the inclusion of the examples was designed to have an educative effect by illustrating the types of behaviour which might constitute family violence or exposure to it.
The father relied upon the example given in sub-paragraph (2)(i) of the definition of family violence, namely, “preventing the family member from making or keeping connections with his or her family, friends or culture”. This example appears to be directed at a situation where one party coerces or controls another by keeping them in a state of social and/or emotional isolation by cutting them off from family and friends. The father in this case argued that, by preventing him from spending time with his daughter, the child’s mother was engaging in family violence. In my view, however, the argument is misconceived. The withholding of time or communication with a child, without more, does not constitute family violence. The essence of the definition of family violence is behaviour which “coerces or controls” a family member “or causes [them] to be fearful”. There is no evidence in this case that the father was coerced, controlled or felt fearful.
It is possible to envisage a different context within which the withholding of a child may amount to family violence. One can imagine, for example, a scenario in which a parent flees from violence and does not take a child with him or her through lack of opportunity or because they have no immediate arrangements for appropriate alternative accommodation. If the other parent prevents the fleeing parent from spending time or communicating with the child as a means to coerce or control the fleeing parent or to cause them to be fearful about their own or the child’s safety, it may well amount to family violence.
In this case, there is no evidence that the mother is seeking to coerce or control the father. On the contrary, there is evidence in the father’s own material that there may be good reason for the mother preventing the child spending time or communicating with him. The father (appropriately) disclosed that there have been previous parenting orders in relation to the child. He annexed to his affidavit a copy of final orders made by consent on 20 August 2009. Those orders provide for the parties to attend counselling and apply for acceptance into a supervised contact program. The orders note that previous orders for the father to spend supervised time with the child remain in force. No explanation was given as to why the supervised time was ordered. In these circumstances it is important for the mother to have the opportunity to file responding material. That is what was ordered on 4 July 2012.
When a Notice of Child Abuse, Family Violence or Risk of Family Violence is filed, the registry manager must notify the relevant child protection authority.[1] This is usually done by forwarding a copy of the Notice to the authority. This enables the authority to carry its statutory responsibility to ensure the safety of the child. If every parent who alleges the other is withholding a child files such a Notice, regardless of whether or not there is associated coercive or controlling behaviour, the child protection authorities will be swamped with Notices and have their genuine child protection work hampered. For that reason the father was ordered to withdraw the Notice.
[1] S.67Z(3) Family Law Act 1975
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Hughes FM.
Date: 31 August 2012
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