FAMILY COURT OF AUSTRALIA
| LINDFIELD & ROMANO | [2021] FamCA 158 |
| FAMILY LAW – PARENTING – Where the parties agreed to final parenting orders in 2016 – Where all parties agree earlier orders should be discharged or varied – Where the mother and Independent Children’s Lawyer seek sole parental responsibility for the mother and for the children to live with her – Where the father believes the mother has alienated the children – Where the children presently reside with the mother – Where the children have not seen the father for over five years – Where there is a history of severe parental conflict – Where there is a history of family violence – Where the father has strong sense of grievance, and anger, but limited insight into his own conduct – Where presumption of equal shared parental responsibility does not apply or has been rebutted. FAMILY LAW – PRACTICE AND PROCEDURE – Where order made for the application of s 102NA of the Family Law Act 1975 (Cth) – Where the father obtained legal representation for a limited period – Where legal representation ceased to act prior to final hearing – Where the father given ample warning of the consequences of self-representation – Where the father sought adjournment to obtain further legal representation – Adjournment refused – Where the father unable to cross examine the mother – Where the mother’s evidence generally accepted as unchallenged. |
| Evidence Act 1995 (NSW) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 60CG, 61C, 61DA, 65D, 65DAA, 65DAB, 102NA |
| Amador v Amador (2009) 43 Fam LR 268 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 B & B (1993) FLC 92-357 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Briginshaw v Briginshaw (1938) 60 CLR 336 CDJ v VAJ (1998) 197 CLR 172 Champness v Hanson (2009) FLC 93-407 Cox v Pedrana (2013) FLC 93-537 Gillard & Gillard [2015] FamCAFC 169 Godfrey v Sanders (2007) 208 FLR 287 Goode & Goode (2006) FLC 93-286 In the Marriage of A (1998) FLC 92-800 Jollie & Dysart [2014] FamCAFC 149 Johnson & Page (2007) FLC 93-344 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) FLC 93-405 Morse & Duarte (2017) 58 Fam LR 131 M v M (1988) 166 CLR 69 MRRv GR (2010) 240 CLR 461 M v S (2007) FLC 93-313 Napier v Hepburn; (2006) FLC ¶93-303 N & S and the Separate Representative (1996) FLC 92-655 Potter & Potter ((2007) FLC 93-326 Rice & Asplund (1979) FLC 90-725 R & R (2000) FLC 93-000 Sigley & Evor (2011) 44 Fam LR 439 Stott & Holgar [2017] FamCAFC 152 Tibb & Sheean (2018) 58 Fam LR 351 |
| APPLICANT: | Mr Lindfield |
| RESPONDENT: | Ms Romano |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
| FILE NUMBER: | SYC | 5523 | of | 2010 |
| DATE DELIVERED: | 25 March 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 21 - 24 September 2020 |
REPRESENTATION
| THE… |
Continue reading LINDFIELD & ROMANO
Sign in free to access the full text
Details
- AGLC
- LINDFIELD & ROMANO [2021] FamCA 158
- Case
- [2021] FamCA 158
- Decision Date
CaseChat Overview and Summary
This case concerns the principles governing the determination of unacceptable risk in parenting disputes before the Family Court of Australia. The court's primary focus is always the best interests of the child, and any findings regarding abuse, violence, or risk are ancillary to this overarching consideration.
The legal issues before the court revolved around the standard of proof required for allegations of abuse or violence, and how this standard relates to the assessment of an unacceptable risk of future harm to a child. Specifically, the court considered whether a failure to prove past abuse to a particular standard precluded a finding of unacceptable risk, and how the court should balance the potential harm to a child from future abuse against the benefits of a healthy parent-child relationship.
The court reiterated that findings of past abuse may require proof to a higher standard, such as that articulated in *Briginshaw v Briginshaw*, or under section 140 of the *Evidence Act 1995* (NSW). However, the absence of such a finding does not prevent a determination of unacceptable risk. The court emphasised that the assessment of risk is not a precise scientific calculation but involves a qualitative evaluation of the likelihood of future conduct and the magnitude of potential harm. This requires a careful balancing act, considering the alleged perpetrator's denials alongside the potential detriment to the child, with the ultimate aim of ensuring the child's best interests are met.
The legal issues before the court revolved around the standard of proof required for allegations of abuse or violence, and how this standard relates to the assessment of an unacceptable risk of future harm to a child. Specifically, the court considered whether a failure to prove past abuse to a particular standard precluded a finding of unacceptable risk, and how the court should balance the potential harm to a child from future abuse against the benefits of a healthy parent-child relationship.
The court reiterated that findings of past abuse may require proof to a higher standard, such as that articulated in *Briginshaw v Briginshaw*, or under section 140 of the *Evidence Act 1995* (NSW). However, the absence of such a finding does not prevent a determination of unacceptable risk. The court emphasised that the assessment of risk is not a precise scientific calculation but involves a qualitative evaluation of the likelihood of future conduct and the magnitude of potential harm. This requires a careful balancing act, considering the alleged perpetrator's denials alongside the potential detriment to the child, with the ultimate aim of ensuring the child's best interests are met.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The High Court and the Full Court have made clear that findings about abuse, violence or risk are subservient and ancillary to the Court's determination of what is in the best interests of the child. Different evidentiary considerations may apply in relation to determining an allegation of unacceptable risk as opposed to determining whether a serious abusive, violent or criminal act has occurred: Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”); see also s 140 of the Evidence Act 1995 (NSW) (“the Evidence Act”). Thus findings about the occurrence of violence or abuse may need proof to a higher standard than findings about the existence of an unacceptable risk, although the two may be interrelated: M v M at [76]; Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196; at [94]-[96]. Where a positive finding of abuse cannot be made in accordance with the Briginshaw standard (or the standard in s 140 of the Evidence Act), this does not preclude a finding of unacceptable risk of future harm: Morse & Duarte (2017) 58 Fam LR 131; [2017] FamCA 1039 at [540]. In Napier v Hepburn; (2006) FLC ¶93-303; (2007) 36 Fam LR 395; [2006] FamCA 1316 at [84], and [91], the Full Court said:[84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.…[91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated.... In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court said:We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter ((2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]). More recently in Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198 (“Bant”), the Full Court succinctly stated the law as follows at [38] to [40]: [38] In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said: Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. ... courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. [39] It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357). [40] The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (CDJ v VAJ”) at 218: 151. ...Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. ...
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.