Dodd & Ferrell
[2022] FedCFamC2F 1763
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dodd & Ferrell [2022] FedCFamC2F 1763
File number(s): ADC 4059 of 2022 Judgment of: JUDGE BROWN Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – Interim parenting proceedings – child aged 2 years old – father seeks supervised time spending – mother proposes no time spending – where father is facing criminal charges – significant issues relating to family violence – where the child has been exposed to family violence – coercive and controlling behaviour – nature of interim hearing – assessment of risk – matters to be considered Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 69ZW, 91B
Intervention Orders (Prevention of Abuse) Act 2000 (SA)
Cases cited: Amador & Amador [2009] FamCAFC 196
B & B (1993) 16 Fam LR 353
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Garrod & Davenort [2018] FamCA 825
Goode & Goode (2006) FLC 93-286
In The Marriageof Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 18 Fam LR 255
Jurchenko & Foster (2014) 51 Fam LR 588
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 Fam LR 518
SS v AH [2010] FamCAFC 13
W & W (abuse allegations: unacceptable risk) [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 98 Date of hearing: 14 December 2022 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Andrew Hill & Co Counsel for the Respondent: Ms Lindsay Solicitor for the Respondent: Women’s Legal Service Counsel for the Department for Child Protection: Ms Sanders Solicitor for the Department for Child Protection: Crown Solicitor’s Office ORDERS
ADC 4059 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DODD
Applicant
AND: MS FERRELL
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
20 December 2022
THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the interests of the child X (hereinafter referred to as “the child”) born in 2020 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia at [email protected] within 7 days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said child such as to be in a position to make submissions to the Court on the adjourned date.
2.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
3.The child live with the mother.
4.The mother be conferred with sole parental responsibility for the child.
5.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the child are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
6.Part 1 of the event will occur by video, using Microsoft Teams, on 20 March 2023 with:
(a)the applicant father to attend at 9.00am;
(b)the respondent mother to attend at 10.30am; and
(c)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
7.Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide at 9.00am on 22 March 2023. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
8.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
9.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
10.Not later than 4.00pm on 6 January 2023 the parties must provide their contact telephone numbers and email addresses to [email protected]
11.Pursuant to order 5 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the idiosyncratic implications for both mother and the child of being exposed to family violence;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child
12.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
13.The Court Child Expert will be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Information provided to the Court by the respective Family Law Information Sharing Officers from SAPOL and the Department of Child Protection;
14.The mother be restrained and an injunction granted restraining her from relocating the child’s principal place of residence from the metropolitan area of Adelaide, in the State of South Australia.
15.The father be restrained and an injunction granted restraining him from contacting and/or making threats against the mother and to the mother’s family.
16.Unless otherwise directed the Department for Child Protection is excused from further attendance.
17.Further consideration of the matter is adjourned to 13 April 2023 at 9.30am for directions NOTING the proceedings will be conducted face to face at Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dodd & Ferrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to interim parenting proceedings in a case concerning very significant issues of family violence, which involve a child of tender years. The child concerned is X born in 2020. The parties to the proceedings are X’s parents – his father, Mr Dodd, and his mother, Ms Ferrell.
The father has not spent time with X since June of 2022. This marks the date of the parties’ final separation, although they separated earlier in July of 2021, following a violent incident between them. It is the mother’s position that neither the July 2021 matter nor the more recent one can be regarded as being isolated incidents but rather each is symptomatic of a long-standing pattern of the father and his family exercising violent control over her, to which X has also been exposed.
This incident of July 2021 resulted in Mr Dodd being charged and convicted of aggravated assault of Ms Ferrell and being sentence to a term of imprisonment of 3 months and 14 days, which was wholly suspended pursuant to a 15 month supervised good behaviour bond. Necessarily, given the incident attracted a custodial sentence, it must be regarded as extremely serious in nature.
Concurrently with the criminal proceedings, Ms Ferrell was granted a final intervention order, pursuant to the provisions of the Intervention Orders (Prevention of Abuse) Act 2000 (SA), on 22 July 2021, by the Suburb B Magistrates Court, which named Mr Dodd as the defendant.
More recently again, Mr Dodd has been charged with breaching the intervention order and a further assault of the mother. These matters, along with breach of the July 2021 bond proceedings, are currently listed on 17 January 2023. I have not yet been advised what the father proposes to do in respect of his outstanding criminal matters. For obvious reasons, I cannot predict what their outcome will be.
It is in this context that the current interim controversy arises between the parties. From the mother’s perspective, it is premature for the court to consider the father spending any time whatsoever with X, given the gravity of the charges against him and what she would characterise as a deeply concerning pattern, arising over many years, of the father exerting coercive and controlling family violence against her.
On the other hand, the father urges the court to consider the benefits arising for X of him maintaining some level of relationship with his father, in these difficult circumstances. He accepts that his behaviour must be regarded as being unacceptable. However, he asserts that the parties’ relationships with one another was marked by the mother also being violent towards him, from time to time.
It is his position that, in prior period of separation, as well as before the parties’ final separation in June of this year, he regularly spent significant periods of time, with X, including overnights. As such, he contends that X is likely to benefit from maintaining what he (the father) would characterise as a meaningful and significant relationship between the two.
In these circumstances, Mr Dodd proposes that he spend time, with X, on alternate Saturdays, between 11.00am and 3.00pm. At this stage, given the gravity of his circumstances, he concedes that the time needs to take place in the presence of an independent supervisor and, in this respect, he proposes his mother, Ms C, who knows X well and who would be protective of him.
As a reluctantly proposed alternative, if the paternal grandmother is deemed to be unsatisfactory by the court, he then proposes an order be made for professional supervision to be provided by a publically funded Children’s Contact Centre or “CCC”. The chief detriment of such an outcome being, from his point of view, that there are significant delays in parents being accepted into any CCC program offered in suburban Adelaide, at the present time.
At this juncture, neither of these options are acceptable to Ms Ferrell. In the submissions of her counsel, Ms Lindsay, given the gravamen of the family violence occurring in this case, it remains a possibility that the court will not be disposed to make any time spending orders in respect of X and his father, at this stage or any other. Certainly, as indicated above, she regards it as premature to consider time until the father’s situation, vis-a-vis his criminal charges, is known.
More significantly, although Ms Ferrell concedes that she knows the paternal grandmother, and indeed, in the past, she (Ms C) has provided the mother with accommodation and assisted her, to some degree, in respect of arrangements to do with X, it is her position that Ms C was complicit in exercising coercive control over her, in conjunction with the father, during the course of the parties’ relationship. As such, she does not trust the paternal grandmother.
As with many cases, arising at the interim stage, this is a case centred on risk and its assessment. The risk arising from the child being exposed to family violence and its sequelae; the risk of disruption to X primary care relationship being balanced against the risk of him losing a meaningful level of relationship with his father.
The court’s responsibility is to assess that risk and put in place a response proportionate to the degree of risk so assessed. In this case, the risk is multi-faceted and complex and comprises the following elements:
·Issues to do with the personal and emotional safety of Ms Ferrell as a person who asserts she has been the subject of serious and protracted family violence;
·Given she is X’s primary provider of care and Mr Dodd is currently unable to discharge these responsibilities, the implications for Ms Ferrell’s sense of personal resilience if orders are made for the father to spend time with X, which cause her to feel unsafe and threatened and the ramifications of this for X and Ms Ferrell’s capacity to provide the best standard of care for X;
·The risk of X losing the capacity to have a meaningful level of relationship with his father, due to delays in CCC’s; and
·The risk or otherwise of Ms C as a supervisor.
At the outset, it is important to point out to all concerned, that I am not deciding the case today on a final basis. In addition, there is much evidence that remains outstanding. My focus must remain on what I consider to be the best outcome for the child concerned, at this stage, notwithstanding the incomplete and provisional nature of much of the evidence.
THE PROCEEDINGS TO DATE
The father commenced the proceedings on 6 September 2022. At this stage, he conceded that X should live with his mother. He had no specific proposals as to how X should engage with him other than it should be on such conditions as ordered by this Honourable Court. Significantly, he sought orders restraining the mother from using illegal drugs, whilst the child was in her care. In this context, he asserts that the mother used MDMA, ecstasy and cannabis during the parties’ relationship.
The mother responded to this application on 17 October 2022. At this stage, she sought the appointment of an Independent Children’s Lawyer and that the father should undertake a suitable parenting course; drug and alcohol counselling; and some form of anger management therapy; prior to his application being entertained by the court. It is her position that the father has a significant history of drug use, including methamphetamines.
Prior to being listed before me, for interim hearing, the matter has been subject to the case management of various court officials, who have attempted to assess what is an appropriate administrative response to the degree of risk, for X, arising from each of his parent’s allegations against the other of misconduct.
In these circumstances, a formal invitation has been proffered, by the court, to the Department for Child Protection,[1] pursuant to the provisions of section 91B of the Family Law Act 1975 (Cth),[2] for it to intervene in the proceedings.
[1] Hereinafter referred to as “the DCP” or “the Department”.
[2] Hereinafter referred to as “the Act”.
As a consequence, the DCP have provided the court with several reports regarding their involvement with the family, which involvement has been reasonably extensive. In addition, those advising the mother have accessed documents held by SAPOL, in respect of the police’s involvement with the parties in this matter. These documents have been produced pursuant to the provisions of section 69ZW of the Act.[3] As a consequence of these interventions, it is clear that the parties have a reasonably large documentary footprint with SAPOL and DCP.
[3] See affidavit of Ms D filed 9 December 2022.
As yet, an Independent Children’s Lawyer has not been appointed for X. The parties agree that this should happen as soon as practicable and I will make an order to this effect. This is clearly appropriate, given the serious issues, which arise in the case and the overwhelming probability that it has a long way to run, before it is concluded.
THE NATURE OF AN INTERIM HEARING
The case came on for interim hearing, before me, on 14 December 2022. At this stage, it is useful to point out to the parties what is the nature of an interim case. The important thing to point out is that the decision, which will be made, at this stage, is provisional in nature. Thus it can be changed and modified, if and when new information and evidence comes to hand.
In addition, as is apparent, the case arises at a point of crisis in the life of the family. As such, there is a lack of evidence, particularly in the form of a detailed assessment of the nature of the relationship between X and each of his parents and indeed others who are likely to be interested in the outcome of the case, particularly his paternal grandmother, who has not as yet filed an affidavit.
This case, almost certainly will require a detailed family report, to be prepared by an independent outside expert. It is likely that there will be a need for some form of professional psychological assessment of each of the parents in the case, given the issues which it throws up.
Most significantly, neither party, at this stage, has been subject to cross-examination and scrutiny applied to them in respect of issues relating to their past conduct and its implications for their capacity to be involved in X’s care and to what degree.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[4]
[4] See Goode & Goode (2006) FLC 93-286 at 80,901 [68].
If the parties themselves are unable to resolve the case, there will be a final hearing, some stage in the future, which will involve a more thorough canvassing of evidence, particularly in terms of expert evidence.
The Full Court, in the case of Marvel & Marvel (No 2)[5] summarised the difficulties arising for the court at the interim stage and said as follows in respect of the nature of the approach to be taken and the rationale for such an approach:
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.
[5] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
Accordingly, at this stage, the focus of the court is on assessing the degree of risk arising for X, given the very serious allegations made by each party. As such, the court must look to the best evidence available to it, which at this juncture is most likely to be that provided by the police and DCP. This evidence is professional and independent. However, I concede that neither source of evidence can be regarded as comprehensive.
HOW THE COURT DETERMINES A CHILD’S BEST INTERESTS
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[6]
[6] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Accordingly, the legislature has directed the court, in respect of how a child’s best interests are to be secured, to give pre-eminence to protective concerns raised in respect of the child’s exposure to abuse, neglect and family violence. Although the court cannot overlook the benefits likely to accrue to a child from meaningfully interacting with a parent, it must give greater weight to protecting children.
At this stage, Mr Dodd approaches the case from the first primary considerations. He asserts that, up to this stage, he has been significantly involved in X’s care and thus any protective issues can be addressed by some form of supervision, in the form of his mother, which will militate the detriments arising for X of not being able to engage with his father for potentially many months and so being deprived of the hitherto meaningful level of relationship the two have shared.
On the other hand, Ms Ferrell approaches the case from the stance of protective concerns. It is her position that, due to the father’s conduct, she is X’s uncontested primary carer and issues to do with his protection, which includes her feeling safe and secure, must be given priority.
In these circumstances, she contends that the father’s proposal represents a level of risk to X, which would be unacceptable for the court to take at this stage, given the nature of the family violence arising in the case. In B and B[7] the Full Court said as follows:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[7] B & B (1993) 16 Fam LR 353, 368 (Fogarty, Baker & Purvis JJ).
SAPOL & DCP DOCUMENTS
The mother has a minor record with police, with street-type offences, which resulted in no convictions being recorded. SAPOL records indicate they were called to the parties’ home in June 2019 and reported the father had struck the mother in the face. She was reported to have been in the corner of a room, protecting her abdomen as she was twenty weeks pregnant. Later the mother indicated she did not want to proceed with a complaint and the police considered that they had insufficient evidence to proceed without her testimony.
SAPOL records indicate involvement in another incident in November 2020 in which the father admitted punching the mother following an altercation between the two in a moving car. X was present. The mother indicated she did not wish to proceed with a charge as she was concerned about its implications for the father’s employment prospects.
The incident of July 2021 involved the father’s arrest. He is reported to have punched the mother multiple times in the arms, thighs and ribs, resulting in severe bruising and breathing difficulties. X was present. As indicated above, this incident resulted in a suspended gaol term.
The DCP reports indicate that they have received concerns for X since April 2019, when he was in utero. As a consequence, the Department reported as follows:
Departmental records indicate that [Mr Dodd] has an evidenced pattern of perpetrating chronic, persistent and ongoing domestic violence toward [Ms Ferrell] in the presence of X including strangulation and threats to kill. The department consider that the paternal grandmother to [X], ([Ms C]) has potentially perpertrated family violence toward [Ms Ferrell] through coercive control due to her role as property manager of [Ms Ferrell]'s previous housing.[8]
[8] See report from the Department for Child Protection dated 25 November 2022 at page 1.
Departmental involvement can be summarised as follows:
·The parties relationship was characterised as high risk and involved multiple separations, including periods when Ms Ferrell was living in supported secure accommodation;
·Concerns were raised in May 2020 of conflict between the parties and of Ms Ferrell kicking Mr Dodd out of her house;
·31 August 2020 reports of property damage by the father and assaulting the mother in the context of illicit drug use by the father;
·17 November 2020 reports of the father assaulting the mother including punching her, strangling/choking her and pulling her hair. The mother reported weekly violence;
·January 2021 reports of the father attending at the mother’s home and concerns of violence escalating;
·March 2021 concerns that X had ingested toothpaste in the mother’s care;
·13 May 2021 reports the parties had assaulted each other. Ms Ferrell sustaining a broken toe;
·19 July 2021 SAPOL charge the father;
·23 August 2021 reports of the mother being under the influence of cannabis and presenting as erratic and paranoid. The mother not having a useable kitchen and being neglectful of X;
·9 September 2021 during a departmental visit to the mother’s home, she discloses her accommodation is provided by paternal grandmother. Home found to be in an appropriate state of cleanliness;
·13 December 2021 further report of father assaulting the mother when he came to her home to do gardening and she wished him to leave. X present;
·24 December 2021 mother reported to have been strangled by father, who had threatened to kill her. X present;
·9 June 2022, concerns raised that the father had moved into the mother’s home, despite a current intervention order;
·13 June 2022 father arrested following complaints of assault and threats to kill;
Thereafter, it is the Department’s position that it has provided Ms Ferrell with extensive assistance through the Child & Family Assessment & Referral Network.[9] This assistance has included help with accommodation, employment and education. It is the Department’s view that through her provision of accommodation to the mother, the paternal grandmother has aided the father to exert coercive and controlling family violence over Ms Ferrell.
[9] Hereinafter referred to as CFARNS.
THE MOTHER’S EVIDENCE
The mother has provided documentary evidence that she commenced employment, as a part-time retail assistant on 5 September 2022. She has a childcare place for X. On 21 October 2022, she signed a tenancy agreement with a Women’s Housing Cooperative. She has a place at E University to do a course of studies in the 2023 Academic Year.
The mother was born in 1998. The parties began to live together in 2019, moving into the father’s parents’ home. From the mother’s perspective, she was not stable. When she discovered she was pregnant, she was living in a youth homeless shelter. The parties then lived together during the pregnancy. The mother alleges that the father was arrested on a number of occasions for assaulting her but she withdrew charges.
It is the mother’s case that due to the father’s behaviour, which included damaging property, she could not secure private property rental premises. It was in this context that the paternal grandparents purchased a property for her and X in Suburb B. It is the effect of Ms Ferrell’s evidence that the father’s violence towards her escalated at this property. She confirms the parties separated temporarily in June of 2021, after the father was charged with assaulting her but reunited in the following September, living in the Suburb B home.
A further incident of violence occurred on Christmas Eve 2021, in which the mother complains she was choked in the presence of X, which caused him to become very distressed. By-standers intervened and the Police were called. It is the mother’s position that she was prevailed upon by the paternal grandmother not to proceed with a charge because it would spoil everyone’s Christmas.
It is the mother’s evidence that the violence escalated during the first half of 2022 until the parties finally separated in June of 2022, at which stage, she sought assistance from CFARNS. Initially, the mother deposes that she was open to the paternal grandparents spending time with X. However, it is her position that they did not support and made unfounded allegations that she was an unfit parent, who had fabricated allegations of domestic violence.
THE FATHER’S EVIDENCE
The father was born in 1998. He describes the parties’ relationship as being volatile, with Ms Ferrell often being verbally and physically abusive towards him. He asserts that she has damaged his car and brandished a knife at him. He alleges that she has manipulated the DVO against him to have him removed from premises unfairly by police. As indicated above, he asserts that the mother used illicit drugs during the parties’ relationship. He alleges that Ms Ferrell suffers from long-standing but unspecified mental health issues manifested by self-harming behaviour.
It is his position that, until recently the mother and the paternal grandmother had a supportive relationship with one another. He fears that the mother may move X to Queensland, where she spent the first part of her life. The mother confirms that she was diagnosed with a borderline personality disorder when she was 17. She has deposed that she is currently receiving counselling as a consequence of the trauma of being the subject of family violence. She denies any intention to move permanently out of South Australia.
The mother concedes that at times in the past, her relationship with the father’s family has been good. However, at the present time, it cannot be characterised in positive terms. In this context, it is significant that I have no evidence from the paternal grandmother and thus no capacity whatsoever to assess her ability to manage what must be regarded as a highly complex dynamic between the parties, involving a child of tender years, in the context of very serious issues of family violence.
Counsel for the mother, Ms Lindsay, describes her client as being extremely vulnerable but as a person who has taken significant steps to secure her own safety and that of X by accepting the assistance provided to her by CFARNS. As such, she submits the court’s focus should be on ensuring this progress is not jeopardised at this stage, which would axiomatically not be in X’s best interests.
On the other hand, counsel for the father, Mr Tredrea, characterises the family violence between the parties as being situational in nature. He asserts that if the parties do not come into contact with one another, the risk of X being further exposed to family violence is minimal and the evidence indicates that Ms Dodd will be capable of overseeing such a process.
OTHER RELEVANT LEGAL CONSIDERATIONS
In this context, as indicated in the introduction to the judgment, issues arise as to the nature of the risk identified and its quantification. This assessment must be done at the interim stage and cannot be deferred until final hearing, notwithstanding the provisional and often controversial evidence available at an interim, particularly an early interim stage. In addition, when further evidence comes to hand, it may be necessary for the level of risk to be revisited. Most usually, this occurs after the production of a family report or a Children’s Contact Centre Report.
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in section 4AB(1). The essential elements of the definition are that the behaviour in question, to amount to family violence must coerce or control another family member. The behaviour need not be violent, in itself, or cause fear in the person to whom it is directed. It is a definition directed towards coercion.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
•overhearing threats;
•seeing or hearing an assault;
•comforting or providing assistance to a member of the child’s family, following an assault;
•cleaning up after property has been damaged; and
•being present when police attend an incident involving an assault.
Again, these examples are not definitional of whether a child has or has not been exposed to family violence. What is pivotal is that the child concerned experiences its consequences. In this case, although X must be regarded as extremely young and, as such, cannot be regarded as being cognitively developed, including in terms of his memory, it must be the case that he has been exposed to family violence in the sense envisaged by the Act.
His parents are living apart and have had no contact with one another because of an incident of family violence. He has been exposed to shouting between his parents and their fear of and anger towards one another. He does not have the cerebral development to understand this behaviour but he has the capacity to feel and respond to it. For obvious reasons, such exposure cannot be regarded as being in anyway helpful to him.
Family violence, by definition, occurs most usually within the family and as such is not open to outside scrutiny. Most usually, it occurs behind closed doors within the private confines of a family home. Accordingly, it is very often difficult, if not impossible, for there to be independent verification that family violence has occurred for protracted periods, during a relationship, if relevant authorities have only been involved in one extreme event, which cannot be concealed. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic”.[10]
[10] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [21] (Ryan J).
In this case, in my view, at this stage, there is ample evidence to support Ms Ferrell’s allegations of family violence, given the involvement of DCP and SAPOL and the fact that the father has been convicted of assaulting the mother and is currently facing charges of the same nature. It is the mother’s case that an incident of the coercion and control to which she has been subject to relates to her past accommodation insecurity and the paternal grandmother has played a role in this.
Family violence is not homogenous in its qualities and can arise in a variety of contexts. As outlined above, it is centred on issues of power and control in intimate relationships and the implication of such behaviour for children and their carers. In this context, it is well recognised, including by the legislature through the provisions of the Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[11] Not all incidents of family violence will be necessarily damaging for a child.
[11] See JG & BG (1994) 18 Fam LR 255, 261 (Chisholm J).
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[12]
[12] See In The Marriageof Patsalou (1994) 18 Fam LR 426, 428 (Baker J).
As indicated above, Mr Tredrea characterises the violence between the parties as being situational and characterised by regrettable behaviour on the part of both parties. At this stage, I am not able to reach a conclusion in this regard. However, it is the father who has been charged rather than the mother. In addition, the assessment of the DCP point to the father’s conduct as being the more significant in the context of its concerns about X’s safety and emotional integrity. This is significant given the extent of their involvement with the family.
In this context, the court must assess the risks arising for X of the various outcomes available in the case, which range from no time with his father for the next few months to a process involving a lay supervisor, in the form of Ms C. The first option, on the father’s case, having serious implications for X’s well-being in terms of his maintaining a meaningful level of relationship with his father; whilst the second option represents an appropriate compromise between protective concerns and on-going paternal/child relations.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[13] Brown J indicated that a meaningful parental relationship is one which is important, significant and valuable to the child concerned.
[13] See Mazorski v Albright (2007) 37 Fam LR 518 at 526 [26].
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual. However, as the Full Court has also noted:
[H]aving a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.[14]
[14] See Jurchenko & Foster (2014) 51 Fam LR 588, 618 [123] (Bryant CJ, Thackray and Duncanson JJ).
In Deiter & Deiter (“Deiter”)[15] the Full Court said as follows:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[15] See Deiter & Deiter [2011] FamCAFC 82 at [61].
In SS v AH[16] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, as follows:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[16] See SS v AH [2010] FamCAFC 13 at [100].
In Eaby & Speelman[17] the Full Court endorsed this approach as enabling the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored. In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[17] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
Mr Tredrea asserts that the risk of X being subject to any harmful event, if he spends time with his father subject to his paternal grandmother – the first limb of Deiter – must be regarded as minimal. He asserts that the grandmother is hardly likely to countenance X coming to harm and even if the is some level of difficulty, its severity is not likely to be significant in its implications – the second limb.
In Garrod & Davenort,[18] Bennett J indicated as follows:
There are severe consequences for children who are placed into the care or under the supervision of parents who have been violent. The consequences are no less serious when the violence is not physical.[19]
[18] Garrod & Davenort [2018] FamCA 825.
[19] See Garrod & Davenort [2018] FamCA 825, [341] (Bennett J).
As the various authorities outlined above demonstrate, the court is required to consider any psychological risks, arising for a child, of being exposed to a violent caregiver. These can include the detrimental consequences of having a much loved parent denigrated or undermined or exposure to a person whose mode of interaction with the world at large has the potential to be corrosive for an immature child. Such consequences may be far reaching.[20]
[20] See Amador & Amador [2009] FamCAFC 196 at [95] (May, Coleman and Le Poer Trench JJ).
It is not the role of this court to punish a party or parties for past failings arising from their relationship. Rather its task is prospective in nature, involving an assessment of the risk arising for any particular child of the future occurrence of some particular event, including the possibility of exposure to family violence or some other form of abuse. One of the central tasks, for the court, in applying the jurisdiction conferred upon it, by the Act is assessing risk for children.
I am not in a position to easily dismiss Mr Tredrea’s submission. However, I am also cognisant that I am assessing risk at an extremely early stage, when Mr Dodd still has some way to go until his police charges are likely to be finalised and what their ultimate outcome will be is far from clear.
In addition, protective concerns regarding Ms Ferrell’s sense of personal security, given she is X’s undisputed primary carer, and she is only recently embarked on making wholesale changes to her life, must be given a significant degree of weight. These are all factors, which in my view call for the court to be extremely cautious, at this stage.
The court must be aware of the perils of depriving children of worthwhile relationships on the basis of inchoate fears of harm. As such, risk must be objectively rather than subjectively evaluated. In this court, as with life, it is a question of balancing and assessing the degree of risk arising in any particular situation, in an objective and methodical basis.
At this juncture, I have no independent assessment of what have been the idiosyncratic implications, for both the mother and X, of being exposed to family violence. I will order a Child Impact Report address these issues. In addition, an ICL has not yet been appointed. Again, in my view, these are factors, which must dictate a cautious and conservative approach to a difficult and multi-faceted case.
Clearly any presumption of equal shared parental responsibility arising under the application of the Act is rebutted by the court having reasonable grounds to believe that one of the parties to the proceedings has engaged in family violence [section 61DA(2)].
The second limb of Mr Tredrea’s submission is that the parties should at least be proactively placed in the queue of parents awaiting a place at a CCC, given the regrettable delays involved. In his submission, this can do no harm and is likely to mitigate the damage likely to arise for X of not being able to interact with his father for many months.
In W & W the Full Court indicated that any order involving issues of supervision, whether professional or lay, had the potential to have long term consequences for any child concerned and, as such, required careful consideration. The Full Court declined to provide guidelines as to when supervised time should or should not be order.[21]
[21] See W & W (abuse allegations: unacceptable risk) [2005] FamCA 892 at [115].
CONCLUSIONS
In my view, at this stage, the case throws up complex issues to do with family violence, which have been independently verified and assessed as serious by the DCP and resulted in extensive police involvement. These factors alone call for a cautious and conservative approach to be taken in respect of the assessment of the degree of risk involved.
In addition, it seems inevitable that the case is far from conclusion and will require careful case management. At this juncture, the required response to cases involving family violence, namely the appointment of an ICL and a Child Impact Report, have not been engaged. Again, the absence of these interventions militates in favour of a cautious approach being taken, at this early stage.
It seems to be the case that the child concerned has also been exposed to family violence in the sense envisaged by the applicable legislation. Both he and his unchallenged care giver – his mother Ms Ferrell – must be regarded as being highly vulnerable. Ms Ferrell is significantly disadvantaged but is making great headway in overcoming her difficulties. Again, at this stage, there is limited evidence regarding her personal degree of psychological resilience. This too, in my view, is a factor which calls for the court to be careful rather than otherwise.
I agree that the chance of Ms C actively condoning any harm coming to X is small. In the past, the evidence indicates that, in the difficult circumstances following her son’s arrest, she acted to return X to his mother. In addition, although the circumstances are highly controversial, she has provided some forms of assistance to the mother in the past.
However, on any view, the emotional typography between the mother and paternal grandmother must be regarded as extremely rocky at present. I have not been provided with any evidence from the latter at this stage. The mother’s evidence is she does not trust her. Again, these are factors which militate against the father’s primary proposal. I am concerned that, at present, it presents too many uncertainties and, as a consequence, an unacceptable risk of something going wrong.
It is, in my view, a significant factor that the outcome of the father’s police proceedings is not known. The mother has sought the father’s referral to some form of anger management and family violence counselling. The success of such an intervention depends on the attitude displayed by Mr Dodd and his willingness and openness to personal consideration of his behaviour and its implications for others, including X and his ability to change.
In the past, he has been subject to supervision on a bond, following an earlier incident of family violence. From the mother’s perspective, this intervention did not result in any change in the father’s conduct towards her. The attitude of the magistrate concerned to a breach of this bond, in the context of the father’s previous response to supervision, if he is convicted of the most recent offence, is likely to be a relevant consideration of this court to what orders it makes in respect of the father’s level of involvement with X. In my view, this is a significant factor which militates in favour of the court not making any orders for time spending at present, until more evidence is to hand.
This leaves the CCC and Mr Tredrea’s submission that it can do no harm for the parties to merely enrol, given such an outcome does not tie the court’s hands. I would be more persuaded by this submission if the father was not facing serious charges in the Magistrates’ Court, including a possible breach of a suspended gaol sentence.
In purely objective terms, it is unlikely that X will be physically affected by his parents being required to take the administrative step of enrolling at a CCC. However, this is a complex case and, in my view, close consideration must be given as to the implications of any order on the mother. Again, in my view, this is factor against the court taking even what many would consider a largely token step.
At this juncture, given Mr Dodd is not in a position to interact with X, it is appropriate that Ms Ferrell be conferred with sole parental responsibility for X. I will make the injunctions sought by the father in respect of the child’s place of residence being moved outside of the Adelaide area and by the mother in respect of her personal protection. I will adjourn the further hearing of the matter to a date after the release of the Child Impact Report.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 20 December 2022
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