PATAU & DALLON
[2015] FCCA 1841
•25 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATAU & DALLON | [2015] FCCA 1841 |
| Catchwords: FAMILY LAW – Practice and procedure – transfer to the Family Court of Australia – consideration of rule 8.02 of the Federal Circuit Court Rules 2001. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60CC(2A), 67Z, 67ZBA, 67ZBB |
| Deacon & Castle [2013] FCCA 691 Leveque v Leveque (1983) 54 B.C.L.R 164 Other Articles Cited: Legal Aid Commission’s Family Law Practice Standards ‘Unacceptable risk – A Return to Basics’ the Hon. John Fogarty A.M ‘Family Violence The Impact On Parents And Children (and how to improve practice through awareness)’ delivered by Judge Joe Harman, Federal Circuit Court of Australia, on behalf of the Toongabbie Legal Centre 2 November, 2012 Holt, S, Buckley H, Whelan, S, ‘The impact of exposure to domestic violence on children and young people: A review of the literature’ Child Abuse & Neglect 32 (2008) 797–810 K, Wilcox, ‘Family law and family violence: research to practice’, Australian Domestic and Family Violence Clearinghouse 2012 M, Flood, ‘An assault on our future: The impact of violence on young people and their relationships’ November 2008 D, Higgins, R. Kaspiew, ‘Child protection and family law… Joining the dots’ National Child Protection Clearinghouse Paper Issue No. 34, 2011 Donna L. Ansara and Michelle J. Hindin, ‘Psychosocial Consequences of Intimate Partner Violence for Women and Men in Canada’, Journal of Interpersonal Violence, May 2010 R. Kaspiew, M. Grat, R. Weston, L. Moloney, K. Hand, L. Qu, ‘Evaluation of the 2006 Family Law Reforms’ Chisholm J “Family Courts Violence Review” November, 2009 |
| Applicant: | MS PATAU |
| Respondent: | MR DALLON |
| File Number: | SYC 2652 of 2007 |
| Judgment of: | Judge Harman |
| Hearing date: | 25 June 2015 |
| Date of Last Submission: | 25 June 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 25 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Forshaw of Forshaw Lawyers |
| Solicitors for the Respondent: | Mr Gillard of Gillard Consulting Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Mr MacDiarmid of Mark MacDiarmid Family Law Specialist |
ORDERS
By consent Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Independent Children’s Lawyer to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
Of the Court’s own motion, these proceedings are transferred to the Family Court of Australia at the Parramatta Registry and the Court requests that the Registrar list the proceedings with such expedition as is possible for the purpose of procedural directions and allocation of the first day hearing (Less Adversarial Trial Event).
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
EXHIBIT ‘A’
The child [X] born [omitted] 2003 (‘the child’) live with the Father.
The child spend time with the mother as agreed between the parents and failing agreement:
(a)Commencing on Friday 3 July 2014, each alternate Friday from 3.20pm until 5.20pm;
(b)Commencing on Tuesday 7 July, each alternate Tuesday from 3.20pm until 5.20pm.
For the purposes of the preceding Order changeover shall occur as follows:
(a)On school days the mother shall collect the child from the school office of the child’s school ([omitted]) (‘the school’) at the commencement of time and the mother shall deliver the child to the father at the front gates of the school at the conclusion of such time;
(b)On non-school days the mother shall collect the child from the father outside the IGA at [omitted] Shopping Centre at the commencement of time and the mother shall deliver the child to the father at the same place at the conclusion of such time;
(c)Upon changeover being affected the parent with whom the child is not spending time will immediately remove themselves from the vicinity of the child and the other parent.
A supervisor from Connecting Families at Merrylands (telephone 8036 6121)(‘Connecting Families’) shall be present during the mother’s time with the child pursuant to Order 2a and 2b above, and:
(a)Such time is to be reportable by the supervisor;
(b)Each parent will forthwith complete and return to Connecting Families any necessary intake form and thereafter comply with any applicable policies of and directions from Connecting Families;
(c)The parents are to be equally responsible for any fee payable to Connecting Families for the supervision provided for pursuant to this order and the Court notes that the cost per visit will be $121.00 in total.
IT IS NOTED that publication of this judgment under the pseudonym Patau & Dallon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
SYC 2652 of 2007
| MS PATAU |
Applicant
And
| MR DALLON |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to future parenting arrangements for a young child, [X], born [omitted] 2003. She is 12 years of age.
The parties to the proceedings are [X]’s parents, being her mother,
Ms Patau, who is the Applicant, and her father, Mr Dallon, who is the Respondent.
The parties have some history of litigation, although there has been a significant break therein. These proceedings were commenced by an Application filed 19 March 2015.
The parties were first involved in proceedings before the Family Court of Australia commenced by an Application filed 16 April 2007. Those proceedings reached a conclusion at a nine-day hearing before a judge of the Family Court in June and July of 2008. At the conclusion of that hearing, a number of Orders with respect to [X]’s future care were made. They included an Order that the parents have equal shared parental responsibility, an Order that [X] live with her mother and spend time with her father for nominated periods of time. Those periods initially commenced with time at a supervised Contact Centre before building to unsupervised and overnight periods of time on weekends and during school holidays. A number of other Orders were made which are not relevant for present purposes.
At some point in time between the conclusion of those proceedings and the commencement of these proceedings arrangements for [X]’s care would appear to have broken down. The basis or bases for that need not be addressed by me today, nor could they be on the available evidence. What is clear, however, is that the child has now passed to live in the father’s care. The child has not, since doing so, spent any time or significant time, nor had any communication or significant communication, with her mother, with whom she previously lived. The parties are substantially at odds as to why that is so.
The mother, in her case, would suggest that the father has, since the conclusion of the last proceedings, engaged in a course of conduct which has, whether intended to do so or otherwise, undermined the relationship between the child and the mother and consequently the child’s placement with her. The father, for his part, suggests that the mother’s behaviour towards the child is the sole basis upon which the child’s relationship with her mother has broken down.
What is clear is that at or about the June long weekend in 2014, a little over a year ago, certain events occurred between the parents at the child’s school and involving the child. As a consequence of those otherwise far from extraordinary events Officers of Police, Department of Family and Community Services workers, medical practitioners and a psychotherapist became involved primarily at the father’s instigation.
Since that time it would seem that the child has had little or no time with her mother and it is suggested that the child is now “psychologically harmed” through some or various causes none of which are articulated in the evidence presently before the Court.
The issues that arise today have been resolved, on their face, by consent Orders entered into between the parties. Those Orders provide for a regular but frugal regime of time between the child and the mother, such time to be supervised.
I am conscious that in making an Order for supervision, as I have done with the consent of both parties and the Independent Children’s Lawyer, it might be inferred that the Court has made a finding, or been concerned that evidence exists to suggest that a finding would be available, of unacceptable risk.
In that regard, I incorporate the relevant portions of my decision in Deacon & Castle [2013] FCCA 691, discussing the aetiology of the present unacceptable-risk test, as addressed by the High Court, Full Court and in extrajudicial and academic writings.
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
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. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the 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.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis].
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture.
I make clear that I have not made any finding, nor am I satisfied that there is evidence that would support a finding, of unacceptable risk.
The Order has been made by consent as it is the best that can be achieved for this child at this time and until full and proper investigation is undertaken.
I make clear that there is, in the material filed, no evidence that could or would support a finding of unacceptable risk. That is of some particular significance and importance and impacts, in part, upon the transfer of the proceeding, of the Court’s own motion, to the Family Court of Australia.
The Importance of Family Violence
Notices of Risk have been filed by each of the parties.
Notices of Risk are filed consistent with the obligation imposed by the Family Law Act 1975[1] as well as the obligation since 12 January 2015 extant within the Federal Circuit Court Rules 2001[2] for each party to parenting proceedings to file a Notice of Risk, irrespective of whether an allegation of risk is raised or not.
[1] Family Law Act 1975, section 67Z.
[2] Federal Circuit Court Rules 2001, rule 22A.02.
The Notice of Risk filed by the mother 19 March 2015 alleges that the child has “….been exposed to family violence and prevented from keeping a connection with the mother”. They are allegations, (whilst not particularised as to the facts alleged), that fall within the section 4AB definition of family violence in the Act. The mother repeats those same allegations in support of suggested abuse of the child.
For those allegations to fall within the definition of abuse within section 4 of the Act, it would be necessary for the evidence to establish that the child has suffered “serious psychological harm” as a consequence of exposure to those behaviours. Whether that is ultimately made out or not I need not determine. I simply observe that from the manner that the allegation is pleaded within the Notice of Risk, it is not apparent how that could be so.
The Notice of Risk filed by the father 29 May 2015 alleges that the child has experienced abuse in the following terms, “The child reports being hit and a denial care, including food, by the mother”.
Certainly, a physical assault upon the child falls squarely within the section 4 definition of abuse in the Act. However, the lack of particularisation creates difficulties for the Court in a number of respects.
Firstly, it is difficult for the Court to fulfil its obligations [3] to fully and properly investigate matters which arise from the filing of the Notice of Risk and so as to ensure that Orders are made and directions given as to the obtaining or commissioning of evidence and to ensure that appropriate Orders are made for the protection of the child or any other person. Those are obligations specifically imposed upon the Court[4].
[3] Family Law Act 1975, section 67ZBB.
[4] Family Law Act 1975, section 67ZBB(2).
The Court is specifically obliged to inquire into such matters[5]. That is an inquiry which has been undertaken by the Court this morning in the absence of either party having filed evidence. Any enquiry by the Court has been dismissively and pejoratively referred by the father’s representative as “….a waste of five minutes of time”.
[5] Family Law Act 1975, section 67ZBA.
I make very clear that the Court’s obligations with respect to family violence are serious and are taken seriously by the Court. There is very little basis upon which one would challenge that this is appropriate.
As would be apparent from present media attention devoted to the issue of family violence and, in particular, the means by which family violence and allegations of abuse are addressed by “family Courts”[6], as they have come to be known, family violence is important. That is if the death of two women per week at the hands of their partners or the deaths of children at the hands of their parents does not make the importance of family violence sufficiently clear to those such as the father’s representative.
[6] Being the Family Court and the Federal Circuit Court of Australia in its family law jurisdiction.
Within the last week, questions have been raised in the Houses of Parliament on the issue. Within the last week statements have been made by Australian of the Year, Rose Batty, a person who is, perhaps, better placed and informed to understand whether a discourse and inquiry into the possibility that a child has been abused or exposed to family violence is or is not a “waste of five minutes of time” as the father’s representative describes it.
Inquiring into allegations of family violence is certainly not a waste of the Court’s time, whether it is five minutes, five weeks, five months or five years. It is the most profound and significant allegation that can be raised.
That a legal practitioner representing the interests of a party and guided by the child’s best interests as paramount would describe the Court’s inquiry into allegations of family violence with scorn, derision and disrespect (both as to the issue and as to the Court), to describe it as “a waste of five minutes of time” beggars belief. Such attitudes have no place before this Court.
In relation to the impact and effect upon children of family violence, (each party apparently suggesting that each parent has engaged in abusive or behaviour typified as family violence), one need look no further than the Federal Circuit Court website under the heading “Exposure to Family Violence and its Effect on Children” stating:
Effects of family violence on children
Children of all ages have been found to have more problems when they have been exposed to family violence, particularly coercive and controlling family violence.
Research has consistently found that children who are exposed to family violence have higher levels of emotional and behavioural problems than children who have not. Children who are in violent homes are also at a greater risk of physical abuse or having their physical and emotional needs neglected.
Younger children are more vulnerable than older children because they are with their parents more frequently, and are more dependent on their parents for care and protection. Teenagers exposed to family violence may be more aggressive to their parents and other acquaintances and constantly be at greater risk of retaliation.
Children exposed to family violence are at greater risk of:
·having difficulties controlling their emotions
· developing depression or antisocial problems such as delinquency or violent behaviours, particularly as teenagers
·developing poor relationships with both parents
·developing poor reading and language skills, and
·having difficulties making and maintaining friendships.
The Family Violence Best Practice Principles Edition 3.1 – April 2013 speaks to the same issues.
A body of research was summarised by me in a recently delivered paper[7] and which I incorporate herein for the elucidation of the parties and those representing them:
[7] ‘Family Violence The Impact On Parents And Children (and how to improve practice through awareness)’, delivered by Judge Joe Harman, Federal Circuit Court of Australia, on behalf of the Toongabbie Legal Centre 2 November, 2012.
Social science and neurological research on the impact of family violence
In a 2008 meta-analysis of family violence research Stephanie Holt, Helen Buckley and Sadhbh Whelan[8] concluded:
[8] ‘The impact of exposure to domestic violence on children and young people: A review of the literature’, Child Abuse & Neglect 32 (2008) 797–810 at 797.
Children and young people may be significantly affected by living with domestic violence, and impact can endure even after measures have been taken to secure their safety
The same authors also found:[9]
[9] Ibid at 797.
Children and adolescents living with domestic violence are at increased risk of experiencing emotional, physical and sexual abuse, of developing emotional and behavioural problems and of increased exposure to the presence of other adversities in their lives
More limited views of family violence, focused on physical acts, as well as prior views that exposure to family violence occurred only when physical violence was directly witnessed by children, have changed significantly since the FLA was first enacted. The above authors highlight this:[10]
[10] Ibid at 798.
Influencing this shift has been a changing perception and understanding of children’s position within this abusive context. Where previously children were thought of as being tangential and disconnected to the violence between their parents, and commonly labelled “silent witnesses” (McIntosh, 2003), more recent qualitative research has disputed this opinion, finding children dynamic in their efforts to make sense of their experiences, while navigating their way around the complexity and terror intrinsic to domestic violence (McIntosh, 2002; Mullender et al., 2002)
In speaking to this shift in view and the bases for it Karen Wilcox has opined:[11]
[11] K, Wilcox, ‘Family law and family violence: research to practice” Australian Domestic and Family Violence Clearinghouse 2012 at page 1.
Children’s wellbeing depends, among other things, on them being protected from harm, including the harm of exposure to domestic violence or exposure to triggers of trauma arising from previous abuse
If that is accepted as so then surely to meet the requirements of s.60CA (that a child’s best interests be regarded as paramount) then a child’s protection from family violence and exposure thereto must be prioritised.[12]
[12] Indeed, this is now mandated by section 60CC(2A).
The same study by Wilcox highlighted:[13]
[13] Ibid at page 2.
Domestic violence practitioners acknowledge the many difficulties that may prevent women from talking about or disclosing their experiences of domestic violence. Shame, the anticipation of negative judgment, cynicism or disbelief by the practitioner and the consequences of living with abuse combine to provide real and understandable disincentives to disclosure (Australian Bureau of Statistics 2006; Laing 2010; Mouzos & Makkai 2004).
Wilcox also drew the following from a consideration of research:[14]
[14] Ibid at page 3.
The co-occurrence of domestic violence, child abuse and child sexual assault is well documented (Bancroft, Silverman & Ritchie 2011; Edleson 1999; Ford 2008; Hamby et al. 2010; Humphreys et al. 2008; Potito et al. 2009). Women experience these forms of violence as part of the perpetrator’s relationship dynamic (Laing 2010, p. 34).
Thus, (Silverman 2003, p. 233) if you ask the right questions, you will find that where there’s children involved, there are bad things going on for those children. The same characteristics of an individual that lead them to desire or use force to control their partner, absolutely lead them to desire that same control and to be likely to perpetrate that same neglect or abuse of their children.
In addition, abusers often damage the relationship between children and their mothers (Buchanan 2008; Bancroft & Silverman 2002; Lapierre 2010; Morris 2009). The stress of living with violence can disrupt attachment between children and their primary caregiver (McIntosh 2003; Lapierre 2010) and, additionally, the relationship can be deliberately undermined (Buchanan 2008; Bancroft, Silverman & Ritchie 2011; Lapierre 2010).
Children are also impacted by their mother’s diminished wellbeing and parenting capacity, which results from the abuse and what Laing (2010, p. 75) has called ‘mothering under adverse conditions’. She notes, they were coping with financial pressures, in many cases with ongoing harassment, with the emotional impact of their experiences of abuse and with the losses they had suffered in order to be safer, such as their homes. Managing parenting arrangements was a further source of stress.
Where there is ongoing contact with abusers post separation (through parenting arrangements), mothers can feel and be powerless or unable to protect their children from harm, and this causes them additional stress and feelings of responsibility (Lapierre 2010; Laing 2010). If mothers are not allowed to protect their children from abuse or ongoing stressful contact, this can also have a negative effect on the mother/child relationship (Laing 2010).
Holt, Buckley and Whelan[15] opine with respect to the impact of family violence as follows:
[15] Ibid at page 799.
The literature reviewed has unequivocally established the interconnectedness between men’s abuse of women and child abuse (Connolly et al., 2006; Cunningham & Baker, 2004; Edleson, 1999; Guille, 2004; Hester et al., 2000). At its most basic level, living with the abuse of their mother can be considered a form of emotional abuse, with negative implications for children’s emotional and mental health and future relationships (Brandon & Lewis, 1996).
Consistent with the present terminology of the FLA the same authors opined:[16]
[16] Ibid at page 800.
many authors agree that children can “witness” in ways that go beyond direct observation, such as overhearing arguments or observing its aftermath, for example seeing bruises and cuts and broken furniture (Cunningham & Baker, 2004; Mullender et al., 2002). Opinion diverges however on the effects of such witnessing on the child, with studies demonstrating marked variability in the results (Edleson, 1999; Shipman, Rossman, & West, 1999), depending on the variables measured and the risk and protective factors considered. Some authors highlight the importance of discerning whether the child has been exposed by directly observing or hearing inter-parental violence, noting the absence of this distinction from many earlier studies (Kaufman Kantor & Little, 2003). However, Jouriles et al.’s (1998) research with 155 exposed 8–12-year-olds revealed that the severity of the violence, as reflected in the use of knives or guns influenced how traumatic this was for children, regardless of whether they saw the assault or not. Dispute concerning the validity of the term “witnessing” has resulted in the adoption of the more encompassing term “exposure” (Wolak & Finkelhor, 1998)
Importantly the above authors have observed:[17]
[17] Ibid at page 800.
The ending of the relationship does not necessarily equate with an end to violence exposure, as reflected in the assertion that “separation is not a vaccination against domestic violence” (Jaffe et al., 2003, p. 29). Violence has been found to continue after separation and may actually increase in severity and lethality, across a broad range of research methodologies and populations.
Too often the ending of the relationships is asserted as the conclusion of risk. This oversimplifies the nature of risk and the impact of continued exposure to an abuser can have upon a victim whether adult or child. Relevant research makes clear that it is erroneous to assert that practical arrangements, such as keeping parents apart, will ameliorate risk.
The termination of a relationship is not necessarily the conclusion of abuse in a relationship. Similarly, the negative impacts of abuse may continue post separation as encapsulated in the following:[18]
[18] Ibid at page 800.
The empirical evidence clearly states that the quality of parenting and ability of both parents to meet their child’s needs are compromised in domestic violence households (Buchbinder, 2004; Levendosky & Graham-Bermann, 2001; McIntosh, 2002; Mullender et al., 2002). For women, continuing abuse affects their relationship with their children (Mullender et al., 2002) and can impact negatively on their parenting capacity (Stephens, 1999) and on the quality of the attachment between them (Cleaver et al., 1999; Levendosky, Huth-Bocks, Shapiro, & Semel, 2003).
The same research also assists in understanding the proposition that women who allege violence and abuse will still make children available[19] and comments as follows:
[19] See also the research of Michael Flood such as ‘An assault on our future: The impact of violence on young people and their relationships’, November 2008.
‘Failure to protect’ is a charge often levelled at women, either the failure to recognize the abuse of her child or the failure to leave the violent relationship and thereby end its impact on the child (Farmer & Owen, 1995). Bell (2003) questions why mothers often attract as much if not more anger and blame than the abuser himself, while both Mullender et al. (2002) and Margolin, Gordis, Medina, & Oliver (2003) found evidence that women do make considerable efforts to protect their children, and may in fact employ more authoritarian parenting tactics to ensure their children are well-behaved, to avoid aggravating the abuser
Wilcox also comments with some force that:[20]
[20] Ibid at page 4.
Each time the child is exposed to either the abuser or situations which remind the child of previous stressful experiences (such as witnessing ongoing parental conflict or violence), the trauma response can be triggered (Perry 2004; Zerk et al. 2009). In this way, the effects of domestic violence are exacerbated if children are not protected from ongoing trauma or trauma triggers (Perry 2009). Perry (2004, p. 3) adds that a child who has been traumatised lives in an ‘aroused state, ill-prepared to learn from social, emotional, and other life experiences’. Children have described their own experiences of exposure to family violence as feelings of confusion, fear (often an ongoing fear of their father) and anger (Bagshaw 2007).
The interconnection and overlap between family violence and abuse is now better recognised and understood. This extends to and includes the inclusion of children’s exposure to family violence as a serious child protection issue. This was noted by Daryl Higgins & Rae Kaspiew as follows:[21]
[21] ‘Child protection and family law… Joining the dots’, National Child Protection Clearinghouse Paper Issue No. 34, 2011 at page 2.
Family violence has been a major contributor to the massive growth in child abuse reports that statutory child protection systems across Australia have experienced in the past decade. Along with parental mental illness and substance misuse, family violence is recognised as the key characteristic of families about whom notifications are made (Allen Consulting Group, 2003). This is particularly the case now that family violence is included within the mandatory reporting obligations in three jurisdictions: New South Wales, Northern Territory, and Tasmania (see Higgins, Bromfield, Richardson, Holzer, & Berlyn, 2010).
Research evidence suggests that often this pre-separation inter-parental violence continues—or is even exacerbated—by the relationship separation (see Braaf & Sneddon, 2007; Kaye, Stubbs, & Tolmie, 2003).
Child protection concerns may arise in two main ways in separated families:
1. where the child is alleged to be currently at risk from spending time in either parent’s household, through exposure to child abuse, neglect or family violence; and/or
2. where concerns have arisen about the treatment of the child (child abuse, neglect, exposure to family violence) by either or both parents prior to separation and this history is argued to be relevant to post-separation parenting arrangements.
Higgins and Kaspiew were somewhat inaccurate in then positing the following:[22]
[22] Ibid at page 7.
In family law disputes, the following questions are central, yet are not necessarily directly covered by any of the relevant investigative agencies:
§ ..Is the child at risk of harm in the household of either parent (or other caregiver)?
§ ..Would the child be safe if he/she was to spend time unsupervised with the parent against whom allegations of abuse have been raised?
The propositions enumerated above are central to the determination of all parenting applications under the FLA on both an interim and final basis.[23]
[23] Family Law Act 1975, section 60CC(2A) prioritises safety over any consideration of the child’s meaningful relationship with a parent. Further, s.67ZBB of the Act requires that a Court consider the child’s (and caring parent’s) safety.
Importantly and as regards the development of relationships between children and parents (the focus upon the development of a meaningful relationship between parents and children being a primary consideration under s.60CC(2)(a)) Holt, Buckley and Whelan commented:[24]
[24] Holt, S, Buckley H, Whelan, S,‘The impact of exposure to domestic violence on children and young people: A review of the literature’, Child Abuse & Neglect 32 (2008) 797–810 at 800-801.
Holden (2003) suggested that maternal stress and depression result at times in an emotionally distant, unavailable or even abusive mother, whose emotional energy and time for her children are severely compromised. Holtzworth-Munroe, Smutzler, and Sandin’s (1997) review of the literature estimated that one- to two-thirds of abused women experience post-traumatic stress disorder, low self-esteem, depression and anxiety. This may compound the behavioural problems of the child and increase the impact of the violence for the child (Levendosky & Graham-Bermann, 1998).
Research also indicates that domestic violence impacts negatively on the woman’s ability to develop authority and control over her children, culminating in some cases in physical aggression by adolescents towards their parents (Jackson, 2003; Ulman & Straus, 2003).
Clearly, family violence in a relationship is potentially circumjacent to a child’s relationship with both parents. It is, indeed, difficult to contemplate the development of a healthy or meaningful relationship between an abusive/violent parent and a child. Indeed, this is taken up by the same authors and addressed by the following:[25]
[25] Ibid at 801.
Guille’s (2004) comprehensive literature review highlights the lack of attention to the father–child relationship in domestically violent families, revealing minimal investigation into the abuser’s perception of his violence or his relationship with his children. What little information does exist suggests that when compared to their non-violent counterparts, these fathers are less likely to have been involved with their children and more likely to have used negative child rearing practices, such as slapping; are more controlling and authoritarian, and less consistent (Bancroft & Silverman, 2002); are more often angry with their children (Holden et al., 1998); are less likely to allow freedom of expression, creativity and structure in their children’s lives (Margolin et al., 2003); and are poor role models with regard to relationships and conflict resolution (Bancroft & Silverman, 2002).
Fathers are characterized as individuals with low self-esteem and a poorly developed sense of identity that results in neediness, dependency, a lack of trust in others, and an inability see the impact of their violence on their children (Mullender et al., 2002), or to see violence towards women as child abuse and vice versa (Hearn, 1998). Peled (2000) also postulates that the instrumental approach of abusive men’s post-separation parenting behaviour results in a construction of fatherhood in terms of rights to children, with little emphasis on nurturance. Some experts question if the risks for children outweigh any possible benefits [emphasis added] (Guille, 2004; Humphreys &Mullender, 2002; Jaffe, Crooks, & Bala, 2005; Jaffe & Geffner, 1998; Levin & Mills, 2003; Lundy & Grossman, 2005; Saunders & Barron, 2003).
The complexity of the impact of violence upon children and their relationships with their father is also highlighted:[26]
[26] Ibid at 802.
The empirical evidence highlights the complex relationships children who grow up with inter-parental violence have with both of their parents (Edleson, 1999; Peled, 2000; Levendosky et al., 2003; Holden, 2003). Peled (2000) postulated that children view their abusive fathers in two contradictory ways—as the “good, loved father” and as the “bad, abusive father”—but seldom maintain both views simultaneously.
One might expect that a child who has experienced their father as violent and abusive might be rejecting of their father and a relationship with him. If it were only so easy. That complexity must be remembered and so that evidence or observation of an apparently close relationship is not assumed as proof of the absence of family violence. The two can be entirely consistent.
As regards the impact specifically upon children of exposure to family violence these authors opined:[27]
[27] Ibid at 802.
The empirical evidence suggests that growing up in an abusive home environment can critically jeopardize the developmental progress and personal ability of children (Martin, 2002; McIntosh, 2002), the cumulative effect of which may be carried into adulthood and can contribute significantly to the cycle of adversity and violence (Cunningham & Baker, 2004; Levendosky & Graham-Bermann, 1998). Exposure to domestic violence may have a varied impact at different stages (Cunningham&Baker, 2004), with early and prolonged exposure potentially creating more severe problems because it affects the subsequent chain of development.
Infants and toddlers are totally dependent upon others for care and their lives are organized around the primary attachment relationship to a care-giver, usually their mother. Distress may manifest itself behaviourally in excessive irritability, regressed behaviour around language and toilet-training (Osofsky, 1999); sleep disturbances, emotional distress and a fear of being alone (Lundy & Grossman, 2005)
And:
Both Rossman (1998) and Huth-Bocks, Levendosky, and Semel (2001) posit that pre-schoolers who witness violence have more behavioural problems, social problems, post-traumatic stress symptoms, greater difficulty developing empathy, and poorer self-esteem than non-witnesses. The effects of domestic violence are amplified for these young children, who are completely dependent on parents for all aspects of their care and may therefore witness greater amounts of violence than older children (Huth-Bocks et al., 2001). Not surprisingly, research with their mothers found this age group to exhibit more problems, with care-giving more difficult than any other age group (Levendosky et al., 2003). Their developmentally limited ability to verbalize the powerful emotions they are experiencing may manifest itself in temper tantrums and aggression, crying and resisting comfort, or despondency and anxiety (Cunningham & Baker, 2004)
Contrary to the suggestion that older children are less impacted and more resilient the authors suggest:
School-age children (6–12 years) are involved in developing a more sophisticated emotional awareness of themselves and others, in particular of how the abuse is affecting their mothers (Daniel, Wassell, & Gilligan, 1999). They are also able to think in more complex ways about the reasons for the violence, and may try to predict and prevent the abuse based on this reasoning.
....For school-age children, academic and social success at school has a primary impact on their self-concept. As children rely increasingly more on influences outside the family as role models and as indicators of their own worth (Daniel et al., 1999), most children will hide their “secret” from everyone, because if others found out, the shame would be devastating, further compounding the imbuing sense of sadness and vulnerability (Alexander, MacDonald, & Paton, 2005).
For older, adolescent children the research produces an equally stark picture:[28]
[28] Ibid at page 803.
Adolescence may mark the point when the impact of domestic violence extends beyond the boundary of the family, with difficulty forming healthy intimate relationships with peers due to the models they experienced in their family (Levendosky, Huth-Bocks, & Semel, 2002). Research suggests exposed adolescents are less likely to have a secure attachment style and more likely to have an avoidant attachment style, indicating perhaps that they no longer feel trust in intimate relationships (Levendosky et al., 2002). Reflecting on the findings of their research, Levendosky and her colleagues (2002) speculated that abusive patterns in intimate relationships initiated in adolescence, may well lead to violence on the part of men and victimization on the part of women in their adult relationships
In a 2002 paper “Domestic Violence and Its Impact On children’s Development” delivered on behalf of the NSW Department of Community Services (as they then were) the following statement was appropriately made:
Childhood is regarded as a period of special protection and rights in western culture. Children’s development is expected to unfold within a secure and nurturing environment. Where the environment is infected by violence and fear, all the normal tasks of growing up are likely to be adversely affected. For example, exposure to violence can result in ‘regressive’ symptoms such as increased bedwetting, delayed language development and more anxiety over separation from parents (Osofsky, 1995, cited in Margolin & Gordis, 2000).These symptoms may affect children’s ability to learn to get along with other children or to concentrate in school
An extensive survey of the research evidence has shown how strongly the experience of violence is associated with adverse outcomes for children’s development (Zeanah, Danis, Hirshberg, Benoit, Miller & Heller, 1999; Mathias, Mertin, & Murray, 1995; Cummings &Davies, 1994; Margolin & Gordis, 2000). Marital conflict has been found to be the strongest risk factor for behavioural problems (Marshall & Watt, 1999)
Importantly the same paper identified the then “new” neuroscience emerging with respect to neuroplasticity and the impact of family violence on brain development (and thus personality, intelligence and behaviour) as follows:
…research on brain development suggests that exposure to extreme trauma will change the organisation of the brain, resulting in difficulties in dealing with stresses later in life (Perry, 1997).
It seems to work this way:
Raised levels of the steroid hormone cortisol are a normal response to stress in humans. Frequent and prolonged exposure to elevated cortisol levels may affect the development of a major stress-regulating system in the brain (Cynader and Frost, 1999) either heightening the stress feedback system (leading to hypervigiliance, chronic fear and anxiety, negative mood and problems in attending) or reducing it, leading to depression(De Bellis et al, 1994; Hart et al 1995, 1996; Putnam and Trickett, 1997, all cited in Margolinand Gordis, 2000).
Chronic stress can cause depression of the immune function as well as other body systems controlled by the brain (Coe, 1999).It is not surprising, then, that observed changes in infant behaviour include irritability, sleep disturbances, more extreme ‘startle’ responses and more minor illnesses (Osofsky &Scheeringa 1997, Zeanah & Scheeringa, 1997, cited in Margolin & Gordis, 2000).
The paper also addressed, as has the research discussed above, one of the more significant consequences of family violence upon children being:
…the more serious the level of partner violence, the higher the likelihood of insecure, specifically disorganised, attachments. It seems that frightening or frightened behaviour of the caregiver might promote disorganised attachment.
Whilst typologies of family violence can be problematic in practice (see below) there is some validity to them in differentiating between and understanding the impact of violence on a victim. This is succinctly addressed by Ansara and Hindin[29] as follows:
[29] Donna L. Ansara and Michelle J. Hindin, ‘Psychosocial Consequences of Intimate Partner Violence for Women and Men in Canada’, Journal of Interpersonal Violence, May 2010 at 1630.
One of the more widely cited theories was proposed by Michael Johnson (Johnson, 1995, 2008; Johnson & Ferraro, 2000), who described a typology of [Interpersonal violence] IPV that differentiates the gender symmetric pattern of situational couple violence from the gender asymmetric pattern of intimate terrorism. Situational couple violence is hypothesized to describe typically low-level, episodic aggression perpetrated equally by women and men in response to conflict or disagreements. In contrast, intimate terrorism is hypothesized to describe an ongoing pattern of violence, coercive control, psychological aggression, isolation, threats of violence, and intimidation primarily perpetrated by men against female partners. Although the severity and chronicity of the violence is on average greater for intimate terrorism than for situational couple violence, the fundamental distinction between these subtypes is the underlying motive to control the partner. A related theory proposed by Evan Stark (2007) distinguishes fights and assaults from a chronic pattern of coercive control. He suggests that the target of measurement should be the ongoing pattern of control, threats, intimidation, humiliation, economic abuse, and other such acts, rather than the presence or absence of physical violence. He argues that coercive control is primarily perpetrated by men to subordinate and entrap women. The disproportionately negative effect that intimate terrorism or coercive control are hypothesized to have on women’s psychological well-being is a consequence of the cumulative effects of psychological abuse, isolation, threats of violence, incessant surveillance and monitoring, and the persistent fear of harm or violence as opposed to the acute effects of a physical assault
The same authors concluded:[30]
…experiencing any pattern of IPV is associated with a range of negative psychosocial outcomes for women and men. However, they also demonstrate the increasingly negative impact and perceived dangerousness for more chronic and severe patterns of violence and control. This finding was particularly pronounced for women as they experienced the most chronically abusive and controlling pattern documented in the study. In general, the psychosocial impact of IPV was greater for women than for men.
And the same authors opine:[31]
…the psychosocial consequences of IPV, particularly for the more severe patterns of violence and control for women, extend beyond fear to include changes in affect or mental health, sense of self-worth, and interpersonal functioning. Reactions, such as depression/anxiety attacks, sleeping problems, shame/guilt, feeling victimized, upset/confused/frustrated, hurt/disappointment, experiencing lowered self-esteem, and difficulty relating to other men, were differentially reported across the IPV patterns.
The results are also consistent with other research, indicating that some of the most frequently reported mental health consequences of IPV for women are depression and anxiety, which include sleeping problems or other stress related responses such as posttraumatic stress disorder (Bohn & Holz, 1996;Golding, 1999).
According to Evan Stark’s theory of coercive control (Stark, 2007), prolonged exposure to intimidation, degradation, humiliation, verbal and emotional abuse, isolation, surveillance, and the pervasive threat of violence are much more likely to become internalized and to negatively affect women’s sense of self-worth compared to exposure to periodic or even ongoing fights or assaults. The results of the current study reveal that women who experienced the most severe pattern of violence, control, and verbal abuse were significantly more likely than women in either of the physical aggression classes to report feeling victimized, ashamed/guilty, and experiencing lowered self-esteem.
[30] Ibid at 1639.
[31] Ibid at 1640.
The Notice of Risk
The Notices of Risk, plural, that have been completed by the parties are of little assistance to the Court.
The basis upon which this Court amended its Rules to introduce a Notice of Risk specific to this Court and to compel its filing in each case follows upon a significant body of research since the 2006 amendments to the Family Law Act 1975 including work undertaken by AIFS[32] and by Chisholm J[33].
[32] R. Kaspiew, M. Grat, R. Weston, L. Moloney, K. Hand, L. Qu, ‘Evaluation of the 2006 Family Law Reforms’
[33] Chisholm J “Family Courts Violence Review” November, 2009.
What was apparent from the above research was the failure by parties to comply with their obligations, imposed by legislation, to file Notices of Risk where an allegation of child abuse or family violence were raised.
The Court was also concerned, as was apparent from Chisholm J’s research, that Notices of Risk were poorly completed when actually filed and regularly made allegations which fell outside of the definitions of family violence and abuse as in this case whereby the bald assertion is made that the child is at “risk of abuse” as “the mother has been diagnosed with a depressive condition”.
The Notice of Risk, as introduced by this Court as a mandatory obligation, is important for triage and case management and in ensuring the Court’s compliance with section 67ZBB of the Act.
The Notice of Risk is also required to ensure that relevant child welfare agencies are aware of that which is alleged and so that if it requires investigation and is found to meet the “immediate risk of harm” threshold as referred to in the Children and Young Persons (Care and Protection) Act 1998[34], appropriate steps and actions can be taken.
[34] See for example section 43 Children and Young Persons (Care & Protection) Act 1998.
I make clear for the benefit of these parties, who will each need, before the matter comes before a Judge of the Family Court of Australia and utilising that Court’s form, to file a fresh Notice of Risk, that in completing the form, it should be treated and approached as a pleading. It should contain “a statement, in summary form, of the material facts on which a party relies but not the evidence by which those facts are to be proved”.[35]
[35] For an example of a definition of “pleading” see Order 11, Rule 2 of the Federal Court Rules 2011.
What a Notice of Risk should not include is that which is contained in these notices - general and non-specific allegations which are not admissible and which do not have any meaning within the Act or at law.
In completing a Notice of Risk allegations should be pleaded, a concept with which family law practitioners have perhaps become unfamiliar through their specialised practice or otherwise. It is common practice in other jurisdictions, including those who practice in tort.
The Notice should be completed so as to stick to facts and offer a summary of facts not allegations or opinions.
The Notice should be erudite and concise.
The Notice should not be a “cut and paste” from the Affidavit filed by that party. It must be observed that in this case that would not be possible as the Affidavit filed by the husband does not lead any evidence which could possibly support a finding of abuse, neglect or family violence in any event.
A Notice should contain statements of fact which fall within the definitions but which do not simply repeat them.
The Notice should, in short, be completed as though it is important, because it is.
What is also important regarding the completion of the Notice of Risk is to ensure that the parties perhaps have some regard to the impact on the child of the behaviour suggested to constitute family violence or abuse and clear regard to the purpose of the Notice to ensure that the Court can comply with its obligations as to resource allocation, obtaining and commissioning evidence, making Orders for the protection of parties and utilising the Court’s time effectively.
In completing the Notice of Risk practitioners representing parties should ensure that they meet their ethical obligations as set out not only within the New South Wales Professional Conduct and Practice Rules (Solicitors’ Rules) 2013 and the Australian Solicitors’ Conduct Rules 2011, (which largely are identical), but also to ensure that they meet, these parties each being legally aided, that required of them as Family Law General Panel Solicitors in accordance with the Legal Aid Commission’s Family Law Practice Standards.
The Notices of Risk, as they are presently drafted, do not assist. They do not assist the Court. They do not assist this child’s best interests. They do not assist the parties.
Transfer to the Family Court
The proceedings will be transferred to the Family Court of Australia.
In considering transfer I must address each of the matters in rule 8.02 of the Federal Circuit Court Rules 2001 as well as the protocol between this Court and the Family Court of Australia.
Certainly, the matter does not fall within items 1 to 7 of the protocol between the Courts as published 12 April 2013. I am satisfied, however, that the matter falls squarely within item 8.
If the matter proceeds to a final hearing it is likely it would take in excess of four days of hearing time.
I am satisfied, by reference to the last engagement in litigation of these parties, a hearing of some nine days before a Judge of the Family Court of Australia, that a similar or, at least, not dissimilar amount of time is likely to be required to dispose of this controversy.
In these proceedings, to paraphrase from terminology that has become commonplace in social science, the mother would appear to be advancing an allegation that the father is engaged, as Gardner and others have described, in “alienation” of the child from her. The father would appear to be suggesting that the child has naturally reacted to, and, thus, become “estranged” from, the mother and “aligned” with him as a consequence thereof, by reference to the work of Johnson and others. That is so notwithstanding that the father offers little or no evidence in his two page Affidavit to support that allegation.
The above allegations are matters which, by reference to appropriate authority, would, if maintained as allegations, require the production of expert evidence and, in all probability, evidence of an expert outside of the skill set of a Family Consultant. That would further extend the time needed for hearing as well as the preferred methods of case management.
I propose to briefly address each of the factors in rule 8.02.
Whether the proceedings are likely to involve questions of general importance
I am conscious that there will be significant potential for these parties, and each of them, to raise or seek to introduce issues arising from social science research. I do not propose to engage in the controversies regarding that issue for this purpose. However, those social science resources, whilst available in both Courts, will be more likely better able to be obtained, advanced and addressed through the Family Court of Australia and its processes and procedures.
Whether the proceedings, if transferred, are likely to be heard and determined at less cost and more convenience to the parties
The cost to these parties is a somewhat moot point. The cost will be borne by the public purse.
Both parties and the Independent Children’s Lawyer are legally aided. Accordingly, there is no real consideration of cost, within its financial sense only, for these parties.
The issue of cost perhaps arises from that discussed eruditely and sensibly by Kirby J. The cost to these parties and, in fact, this child extends beyond money. There is the cost of ongoing conflict, ongoing litigation, lost opportunity, damaged relationships and the like.
Irrespective of where the truth may lie as regards the parties’ allegations, certainly the cost for this child is significant. She has now been present during various squabbles – to describe them as euphemistically as possible – between her parents at her school, a place that should be considered a place of safety for her. She has been engaged in stand-offs between her parents at the school, involving school staff, Police, Officers of the Department of Family and Community Services, doctors and psychotherapists and all in her presence.
It is not difficult to understand that these events may well have impacted upon this child. Each of the parents might seek to reflect at some point in time, if they are capable of it, on how they have contributed to that impact upon this child.
The cost to this child of significant delay will be disastrous. I make clear that the proceedings are not transferred purely because the matter can be heard more quickly in the Family Court of Australia. There are many other more significant factors. However, it is a reality.
If these proceedings were adjourned in my list today, a mention date could not be found before November 2015. If the matter then required hearing time, there would be no dates to allocate.
The 2016 calendar has recently been completed. The dates available for hearings of matters in Parramatta for that calendar in 2016 are 63 days in total. The callover of matters requiring hearing dates, matters already able to be allocated dates and ready to proceed, will commence on 6 July 2015. 121 matters reside within that callover. The hearing dates available from now until January, 2017 will likely be exhausted on day 1 or 2 of that callover.
This matter could not have any hope or expectation of receiving hearing dates before 2017 and possibly 2018. That is a wholly unacceptable state of affairs from the Court’s perspective. It is disastrous, verging upon abusive, for this child.
This child has been caught in such a maelstrom of controversy between her parents that the best that they have been able to achieve for her for in the last 12 months has been no time or communication between her and her mother, (although on the father’s allegation, once he sees fit to place evidence before the Court capable of allowing the Court to assess whether a risk might exist or that something might have occurred in the past that would have been disadvantageous to this child, time is alleged to be inappropriate).
This child will, for two if not three years, be in a position of grave uncertainty. By the time this Court can return to the matter and hear it properly with the resources the case requires – no doubt resources greatly compounded and duplicated during that period of delay – the child will have aged from 12 to 14 or possibly 15 years of age. That is unacceptable in a civilised, first-world country, yet it is the best that can be done by the Court with its present resources. It is beyond my power or control to effect any change in that regard.
It may be possible to allocate time to the matter earlier, subject to the matter being made ready and available. I have little confidence that would be done expeditiously as an adjournment of two months has not assisted in the father placing proper evidence before the Court. To allocate earlier hearing time to the matter would, however, involve displacing other work.
If the matter is going to take more than four days to hear, that would, in reality, involve disadvantage to at least 14 to 20 other sets of litigants whose matters are not necessarily less important as listing this matter would displace and vacate the hearing dates they have. That would also involve the artificial judgment being made as to why this matter is more urgent than those who have already waited two years and as to why they must be further delayed and disadvantaged whilst this matter proceeds.
All of those issues can be resolved through a transfer to the Family Court of Australia. However, again, I make clear it is not the more expeditious determination of the matter with that Court’s resources, which I do not suggest are any more ample than this Court’s, which warrants the transfer.
Whether the proceedings will be heard earlier in the other court
Clearly, they will.
The availability of particular procedures appropriate for the proceedings
That is, in essence, the basis upon which transfer is made. This matter cries out for strident and expeditious judicial case management. It may well, if the husband chooses to file evidence suggestive that the child has been abused or is at risk of abuse, although he has not done so to date, warrant the matter being included with a Magellan list. That is not available in this Court at all.
If transferred to the Family Court of Australia, the matter will be dealt with in a Less Adversarial Trial. That will enable a Judge, from the beginning of the hearing of the matter, to obtain evidence, determine what further evidence is necessary, hear from the parties, their lawyers and the Independent Children’s Lawyer, obtain Family Consultancy input even if that is only to assist in interpretation and consideration of expert evidence or possibly in addition thereto. None of that is reasonably available within this Court either at all or in a timely fashion within present resourcing.
It is those resources which, I am satisfied, would best meet the needs of this child, whose interests are paramount in all that is done.
This case needs to be determined in a timely fashion. The case needs to be heard within a time and using an amount of time necessary to do justice to the parties and to the child’s interests. That simply cannot occur at present in this Court in this case and, regrettably, many others.
The wishes of the parties
Transfer is not opposed by the Independent Children’s Lawyer or the mother. The father’s representatives have not had the opportunity to obtain instructions as yet, but in any event, I am satisfied, even if opposed, the matter belongs in the Family Court. It has all the hallmarks of a matter that will require significant and substantial hearing, significant resources, (both Family Consultancy and possibly externally), and would greatly benefit from the availability of judicial management from the outset of a hearing over a number of events, including a final event that would enable this child’s needs and interests to be more fully and properly ascertained and addressed than this Court’s resources presently allow.
It is for those reasons that the Order for transfer is made.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 3 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Procedural Fairness
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Costs
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Jurisdiction
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Remedies
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