High Court of Australia
The King v Rowan (A Pseudonym) [2024] HCA 9 (13 March 2024) – High Court of Australia
‘ Appeal against conviction’ – ‘ Defence of duress’ – ‘ Necessity’ – ‘ Threat’ – ‘ Battered women syndrome’
Charges: Incest x 11; act of indecency x 1.
Proceedings: Appeal against conviction and sentence.
Facts: Following a trial by jury in June 2021, the female respondent was found guilty of eleven charges of incest and indecency. The victims were the respondent’s daughters. The prosecution case was that the respondent had committed the offences with her partner, the daughter’s father (‘JR’).
The female respondent, who has a mild intellectual disability (IQ of 70), sought to rely on a defence of duress. Evidence of a forensic psychologist opined the respondent’s behaviour to be consistent with battered women syndrome, and evidence of JR’s controlling behaviour and sexually and physically abusive treatment of the respondent. The respondent was financially and socially dependent on JR. The defence of duress was not left to the jury at the respondent’s trial in June 2021. [26]–[27]
The respondent successfully appealed this ruling in the Court of Appeal. The Court (Kyrou, McLeish and Niall JJA) unanimously held duress should have been left to the jury for their consideration.
Grounds of Appeal: The Crown/prosecution sought leave to appeal the decision of the Court of Appeal on the following sole ground:
•
The Court of Appeal erred in finding that the trial judge had erred in ruling that the respondent could not avail herself of the defence of duress.
Decision and reasoning: Appeal dismissed. The Majority (Gageler CJ, Gordon, Jagot and Beech-Jones JJ) held the Victorian Court of Appeal to have adopted and applied ‘the accepted understanding … of the form of threat necessary to establish duress at common law’, as opposed to the doctrine of duress of circumstances. [53]–[57]
The necessity for the accused to be subject to a threat of infliction of the relevant form of harm if the accused fails to commit the acts that constitute the offence charged has been a consistent feature of the consideration of the common law of duress by intermediate courts of appeal in the common law jurisdictions in this country [37]
Accordingly, the Majority dismissed the appellant’s concern that the Victorian Court of Appeal’s judgment reflected the adoption of the doctrine of duress of circumstances — a relatively recent doctrinal development occurring in England and Wales. The doctrine suggests that pressure on the accused’s will ‘can arise from other objective dangers threatening the accused or others’ and not merely ‘the wrong threats or violence of another’ (R v Martin [1989] 1 All ER 652, 653 (Simon Brown J) [47]. The Majority, however, refused to explores this doctrine as neither party contended the common law of Australia should adopt duress of circumstances. [49]
The Majority further held the evidence adduced before the trial judge — namely, the forensic psychologist’s report — could engender reasonable doubt in a reasonable jury that the prosecution negatived the existence of a threat to inflict the threatened harm if the respondent failed to commit the charged offences:
In this case, the evidence of pervasive violence, intimidation, control and sexual abuse perpetrated by JR on the respondent and their children over a sustained period raised a reasonable possibility that any express or implicit demand JR may have placed on the respondent to join in the sexual abuse of [the daughters] carried with it the implication that serious violence and more severe sexual abuse would be inflicted on the respondent or their children if she refused [62]
In a separate judgment, Edelman J dismissed the appeal, finding there to be a foundation in the available evidence sufficient for the defence of duress to be left to the jury. [113]
Lang v The Queen [2023] HCA 29 (11 October 2023) – High Court of Australia
‘ Appeal against conviction’ – ‘ Murder’ – ‘ Suicide’ – ‘ Unreasonable verdict’ – ‘ People with mental illness’ – ‘ Evidence’ – ‘ Expert testimony’ – ‘ Appeal dismissed’
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: By special leave, Mr Lang appealed an unanimous decision of the Queensland Court of Appeal (McMurdo and Mullins JJA and Brown J) to uphold his conviction following a trial by jury in the Supreme Court of Queensland for the murder of Maureen Boyce.
Mrs Boyce had a sporadic extra-marital relationship with Mr Lang over several years; of which her husband (Mr Boyce) knew. At the time of the incident, Mr Lang and Mrs Boyce were the only two in Mrs Boyce’s apartment. Mrs Boyce suffered from bipolar disorder and longstanding borderline personality disorder [47]. The victim experienced intermittent suicidal ideation, described as a ‘preoccupation with thinking about ending one’s life’ [56].
At trial, Mr Lang accepted only two feasible explanations for Boyce’s death: suicide or murder. A forensic pathologist opined that the injury sustained by Mrs Boyce (a single wound with multiple internal stab wounds) was not self-inflicted.
Grounds of Appeal: Mr Lang appealed the conviction on two grounds:
1.
Unreasonable jury verdict (ie, the verdict of the jury could not be supported having regard to the entirety of the evidence for there is a reasonable possibility that the deceased committed suicide).
2.
Wrongful admission of expert evidence (ie, the evidence of a forensic pathologist, opining that the injury sustained by the victim was not self-inflicted, was wrongly admitted into evidence).
Decision and reasoning: Appeal dismissed, and order confirmed. The High Court unanimously dismissed the first ground of appeal, finding that the jury’s verdict was not unreasonable. Strong and compelling evidence of Mr Lang’s motive, combined with his conflicting testimony to police ([352]-[356]), was sufficient for the jury to exclude the hypothesis that Mrs Boyce died by suicide ([159]–[160]; [158]; [248])
(Kiefel CJ and Gageler J at [2]; Gordon and Edelman JJ at [41], [145]–[185]; Jagot J at [419])
Gordon and Edelman JJ cautioned judicial and prosecutorial/defence care in reasoning Mr Boyce’s death was either a consequence of suicide or murder, in light of the evidence of Mrs Boyce’s mental health, specifically her diagnosis of, and experience with, depression and bipolar disorder (269]-[270]; [284]-[285]):
There is need for great caution in the reasoning that as Mrs Boyce was unlikely to have committed suicide, or more specifically to have committed suicide by the method of stabbing, it is more likely that she was murdered by the appellant. In this case, whoever inflicted the wound, something highly improbable did occur. All of the evidence must be considered, going to the relative likelihood of both hypotheses, in determining whether the prosecution failed to exclude as a reasonable hypothesis that Mrs Boyce committed suicide. In particular, the likelihood of Mrs Boyce deciding to commit suicide cannot be considered in isolation from the likelihood of the appellant deciding to commit murder’ [158]
With respect to Ground Two, the majority (Kiefel CJ and Gageler J at [3], Jagot J at [470]) held that the evidence was admissible. The majority deemed the evidence sufficient to establish that the forensic pathologist’s opinion was based on his expertise.
Gordon and Edelman JJ dissented ([42], [220]–[242]):
‘The problem for Dr Ong’s opinion on this issue, and the reason that it was both inadmissible and of no weight, is that he failed to expose how his expertise was the substantial basis for connecting the facts to which he referred to this opinion’ [234]
BA v The King [2023] HCA 14 (10 May 2023) – High Court of Australia
‘ Appeal allowed’ – ‘ Tenancy/Property’ – ‘ Meaning of 'breaking’
Charges: Breaking etc into any house etc and committing serious indictable offence
Proceedings: Appeal from the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales R v BA [2021] NWCCA 191 (20 August 2021) to acquit.
Facts: The appellant and complainant were in a domestic relationship. They resided together in an apartment, which they occupied as co-tenants pursuant to the Residential Tenancies Act 2010 (NSW). The breakdown of the relationship resulted in the appellant ceasing rent payments and moving out. After forcibly entering the complainant’s apartment, the appellant intimidated and assaulted the complainant (see Kiefel CJ, Gageler and Jagot JJ [4]–[5]).
The trial judge directed a verdict of not guilty on the basis that the accused had a right to enter as a lessee. The Crown appealed this direction, submitting that the trial judge erred in holding that the prosecution was required to establish that the appellant did not have a pre-existing right to enter (as a pre-condition to proof of ‘breaking’). The Court of Criminal Appeal (Brereton JA and Fullerton and Adamson JJ) upheld this appeal and ordered a re-trial.
Grounds of Appeal: The appellant appealed the decision on one ground:
1.
The Court of Criminal Appeal erred in holding that an entry into a dwelling-house pursuant to a pre-existing right to enter will nonetheless involve a “break” if made without the consent of the actual occupant.
Decision and reasoning: Appeal allowed and orders set aside. The majority (Gordon, Edelman, Steward and Gleeson JJ) concluded that the appellant could not break into the apartment by law as he was still a co-tenant, pursuant to the Residential Tenancy Agreement. [42] That is, he possessed a right of exclusive possession over the apartment and therefore had lawful authority to enter it without the complainant’s consent.
This difficult case illustrates the complexities of the concept of “break and entry”, the meaning of which was established in historical circumstances quite different from contemporary society, including when domestic and family violence was generally not treated a criminal [36]
The Crown observed that the complainant was entitled to protect herself from apprehended violence to her person in the security of her own home by refusing to unlock the front door. In a practical sense, this is true. However, the complainant’s power to keep the appellant, as a co-tenant, out of the apartment was not unlimited. The source of the appellant’s liberty to enter the … apartment was the residential tenancy agreement. It was not the complainant’s consent. It was not within the complainant’s power unilaterally to alter the appellant’s liberty to enter. For example, neither the landlord nor the complainant could lawfully change the locks for the premises to exclude the appellant without the appellant’s consent, or without a reasonable excuse [80]
The minority of Kiefel CJ and Gageler and Jagot JJ dissented:
The appellant’s status as a co-tenant under a residential tenancy agreement did not give him a right to forcibly enter the apartment and assault his former partner who resided in the dwelling-house and who had refused him entry [3]
Dansie v The Queen [2022] HCA 25 (10 August 2022) – High Court of Australia
‘Adverse inferences’ – ‘Appeal against conviction’ – ‘Circumstantial case’ – ‘Drowning’ – ‘Evidence’ – ‘Independent assessment of evidence’ – ‘Inference of guilt’ – ‘Murder’ – ‘People with disability and impairment’ – ‘Reasonable hypotheses consistent with innocence’ – ‘Unreasonable verdict’ – ‘Unreasonableness ground’
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: By special leave the defendant appealed the majority decision of the South Australian Court of Criminal Appeal (Parker and Livesey JJ, Nicholson J dissenting) to uphold his conviction following trial by judge alone (Lovell J) in the Supreme Court of South Australia for the murder of his wife. He argued that the trial judge’s verdict could not be supported having regard to the evidence.
Following a stroke in 2005 the female victim was confined to a wheelchair and she could no longer speak. For two years before her death she had been living in a nursing home. The Crown alleged that while on an outing her husband pushed her wheelchair into a pond, resulting in her drowning. Lovell J drew inferences adverse to the appellant’s credit from the appellant's behaviour during interviews with police ‘that his relationship with his wife had changed since she had been living permanently in the nursing home, such that he had come to see her as "taking up his time" and no longer had a caring relationship with her.’ In assessing the appellant’s account of his wife’s death as implausible, Lovell J found support for the prosecution case in circumstantial evidence that he had left his watch, wallet and a spare change of clothes in the car and had done internet searches on funerals in the month before. Lovell J found 2 distinct interconnected motives, financial and relationship, concluding the only rational inference available on the whole of the evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife and therefore his guilt was proved beyond reasonable doubt.
Ground: The majority in the Court of Criminal Appeal erred in how it approached the ground that the verdict was unreasonable or could not be supported having regard to the evidence. In particular, the majority misinterpreted and misapplied the approach required to be taken to that ground in accordance with M v The Queen [1994] HCA 63; (1994) 181 CLR 487 as applied in Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.
Decision and reasoning: Appeal allowed, conviction set aside and the matter remitted for rehearing. Livesey J’s judgment in the Court of Criminal Appeal, with which Parker J agreed, erred. ‘What was missing from this analysis, because it had been eschewed as raising “jury” questions, was any independent consideration of whether the evidence left open reasonable hypotheses consistent with innocence’ [35].
Peniamina v The Queen [2020] HCA 47 (9 December 2020) – High Court of Australia
‘Appeal against conviction’ – ‘Exclusion of provocation’ – ‘Murder’ – ‘Partial defence of provocation’
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: The appeal concerned the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304(1) of the Criminal Code (Qld). Section 304 was amended in 2011 to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is “based on anything” done by the deceased, or anything the accused believes the deceased has done, to end or to change the nature of the relationship or to indicate in any way that the relationship may, should or will end or change. The 2011 amendments placed the burden of proof of the defence on the accused. The issue raised by the appeal is whether in discharging this burden the appellant was required to prove that the provocation was not "based on" anything done (or believed to have been done) by the deceased to change the relationship, notwithstanding that such conduct (or believed conduct) was not the conduct that he claimed had induced his loss of self-control. The appellant killed his wife in circumstances that left it open to find he was angered by a belief that the deceased had been unfaithful and planned to leave him. But the appellant’s case was that, for the purpose of s 304(1), his loss of self-control was ’based on’ the deceased “grabbing [a] knife, threatening [him] with it and cutting his right palm.” The jury found the appellant guilty of murder. On appeal, the Queensland Court of Appeal held that the trial judge was entitled to direct the jury to consider whether the exception set out in s 304(3) excluded the availability of the partial defence under s 304(1).
Grounds of appeal: The Court of Appeal erred in holding that the exclusion of the defence of partial provocation pursuant to the exception in s304(3) was not confined to the provocative conduct of the deceased which the defence relied upon as causative of the appellant's loss of self-control.
Held: Appeal was allowed. The majority (Bell, Gageler and Gordon JJ) found that, correctly understood, s 304(3) excludes the defence of provocation where the accused was in a domestic relationship with the deceased and his/her loss of self-control was induced by anything done (or believed to have been done) by the deceased to change the relationship. Whether the defence does not apply is a question of law.
Here, it was the appellant’s defence that it was the deceased’s conduct with the knife that induced his loss of self-control. There was no evidentiary foundation to suggest that the conduct with the knife was itself a thing done to change the relationship. It was therefore not open to find that the defence was excluded under s 304(3). The trial judge was wrong to direct the jury that, in addition to proving the elements of the defence, the appellant was required to prove that his loss of self-control was not based on anything done by the deceased to change the relationship.
Note: The appellant was subsequently retried and convicted of manslaughter (the sentencing judge found that the jury accepted the partial defence of provocation, and that the appellant’s belief that the victim had been unfaithful was reasonable) and resentenced: R v Peniamina (No 2) [2021] QSC 282 (25 October 2021).
Roy v O’Neill [2020] HCA 45 (9 December 2020) – High Court of Australia
‘Admissibility of evidence’ – ‘Domestic violence order’ – ‘Female perpetrator’ – ‘Implied licence to enter’ – ‘People affected by alcohol misuse’ – ‘Police powers’ – ‘Pro-active policing’ – ‘Whether police had any basis to request to submit to a breath test’ – ‘Whether police have powers to attend the threshold of private property to ensure compliance with a domestic violence order’
Proceedings: Appeal from the decision of the Northern Territory Court of Appeal O'Neill v Roy [2019] NTCA 8 (4 September 2019).
Issue: Scope and limits of implied licence.
Facts: The respondent woman was the subject of a DVO that protected her male domestic partner (Mr Johnson, the victim). The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.
Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.
The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.
The Northern Territory Court of Appeal held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose. The respondent sought special leave to appeal. The application regards the scope of the licence. It was agreed that the content of the implied licence is determined objectively while the infringement of the implied licence is determined by reference to some subjective characterisation of purpose.
Judgment: The Court per Kiefel CJ, Keane and Edelman JJ dismissed the appeal, having earlier granted special leave to appeal subject to noting that the proposed grounds of appeal might be reframed with greater precision HCATrans 43 (20 March 2020). Keane and Edelman JJ observed that the making of a coercive direction is beyond the scope of the licence generally implied by the law to enter the curtilage of a property but that there was no need for a coercive direction here as Ms Roy complied with the request for a breath test. No question of coercion would arise unless and until Ms Roy refused to consent to provide a breath test, and Constable Elliott decided to invoke the power conferred by reg 6(1)(a). [93]
Kiefel CJ held that either of two lawful purposes (to check compliance with a domestic violence order where Ms Roy was known to be invariably intoxicated or to ascertain the state of Ms Roy and Mr Johnson by way of a proactive domestic violence check) was sufficient for the law to imply a licence for Constable Elliott to enter the dwelling unit in question. He was not a trespasser. The evidence of the results of the breath test was admissible.
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 (11 October 2017) – High Court of Australia
‘Crown appeal against sentence’ – ‘Current sentencing practice’ – ‘Instinctive synthesis’ – ‘Manifestly inadequate’ – ‘Sentencing’ – ‘Worst category of case’
Charges: Incest x 2; Sexual penetration of a child under 16 x 1; Indecent assault x 1.
Appeal type: Crown appeal against sentence.
Facts: The charge subject of the appeal was one count of incest. The appellant pleaded guilty, and was sentenced to 3 years and 6 months’ imprisonment. The total head sentence was 5 years’ and 6 months’ imprisonment with a non-parole period of 3 years ([12], [23]).
Section 5(2)(b) of the Sentencing Act 1991 (Vic) provided that the court must have regard to current sentencing practices when sentencing an offender. The Court of Appeal stated that ‘but for the constraints of current sentencing practice’, it would have imposed a longer sentence ([33]).
Issues: Whether the sentence for the charge of incest was manifestly inadequate. In resolving this question, the High Court clarified the relevance of ‘current sentencing practices’ to sentencing.
Decision and Reasoning: The appeal was allowed, and the matter was remitted to the Victorian Court of Appeal for determination of the appeal against sentence ([77]). The High Court (Kiefel CJ, Bell and Keane JJ, Gageler and Gordon JJ agreeing) held that the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it ([2]).
Kiefel CJ, Bell and Hayne JJ stated: ‘the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor’ ([9]).
Further, their Honours stated at [50]:
section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.
Hughes v The Queen [2017] HCA 20 (14 June 2017) – High Court of Australia
‘Meaning of “significant probative value”’ – ‘Tendency evidence’
Charges: Sexual offences against underage girls x 11.
Appeal type: Appeal against conviction.
Facts: The defendant was Robert Hughes, the star of the TV show Hey Dad! The 11 complainants were friends of his daughters or workers on the set. The prosecution sought to adduce the evidence of each of the 11 complainants to support each of the other counts. The prosecution sought to prove tendencies of ‘having a sexual interest in female children under 16 years of age’ and ‘using his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them’ ([3]). The tendency evidence was admitted, and the appellant was convicted ([8]).
Issues: Whether tendency evidence is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. This issue had been the subject of diverging lines of authority between the Victorian and New South Wales Court of Appeal.
Decision and Reasoning: The High Court (4:3) dismissed the appeal.
The majority (Kiefel CJ, Bell, Keane and Edelman JJ) held that the evidence was admissible. The majority identified that there is likely to be a high degree of probative value when (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged ([41]).
The majority endorsed the test for “significant probative value” posed in Ford, that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged ([40]). The majority at [40] added the following qualification:
it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
Gageler, Nettle and Gordon JJ dissented.
Gageler J advocated for a more conservative approach: his Honour argued that admitting all the evidence risks the jury placing too much emphasis on the series of allegations, and not assessing each charge individually ([109]).
Nettle J emphasised that the fact that an accused has committed one sexual offence against a child is not, without more, sufficiently probative of the accused committing another sexual offence against a child ([158]). Something more is required, for example a similarity in the relationship between the alleged victims, a connection between the details and circumstances of each offence, or a system of offending ([158]). Nettle J also reiterated the dangers in admitting tendency evidence ([174]).
Gordon J agreed with Gageler and Nettle JJ and set out her Honour’s own set of principles at [216].
The Queen v Kilic [2016] HCA 48 (7 December 2016) – High Court of Australia
‘Appeal against sentence’ – ‘Appeal allowed’ – ‘Dousing with petrol and setting alight’ – ‘Drug misuse’ – ‘Intentionally causing serious injury’ – ‘Methylamphetamine’ – ‘Pregnancy’ – ‘Sentencing’ – ‘Worst category of offence’
Charges: Intentionally causing serious injury x 1; Using a prohibited weapon x 1; Dealing with suspected proceeds of crime x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The defendant and victim were in a relationship; the victim was 12 weeks’ pregnant with the defendant’s child ([5]). The defendant pleaded guilty to dousing the victim with petrol and setting her alight ([10]). The victim’s injuries were ‘horrendous’ ([11]), and she terminated her pregnancy ([13]). The sentencing judge said that he found it hard to recall a more serious example of the charge in his 38 years of working in criminal law ([14]). The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years ([1]). The Court of Appeal allowed the defendant’s appeal against sentence on the basis that there was ‘such a disparity between the sentence imposed and current sentencing practice’ ([1]).
Issues: Whether the Court of Appeal erred in holding that the sentence was manifestly excessive.
Decision and Reasoning: The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) overturned the Court of Appeal’s decision and reinstated the original sentence. The High Court discussed two aspects of the Court of Appeal’s decision: first, the Court of Appeal employing the term ‘worst category’ of offending; and second, the Court of Appeal’s interpretation of ‘current sentencing practice’.
First, the High Court held that it is an error to describe offences as being within ‘the worst category of cases’ if the offence does not warrant the maximum penalty ([19]), as the term is likely to cause confusion ([17]-[20]).
Second, the High Court remarked that ‘current sentencing practice’ is likely to change over time, ‘current sentencing practices for offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’ [21]. The High Court found that the cases were too few to establish a pattern, one case was 12 years old, and most did not occur in a domestic violence context ([25]-[31]). The High Court said that ‘violence perpetrated in the course of a domestic relationship against the offender's female partner … involve the abuse of a relationship of trust’, and such violence ‘must steadfastly be deterred’ ([28]). This was a distinguishing factor from cases with comparable serious injuries ([28]).
Munda v Western Australia [2013] HCA 38 (2 October 2013) – High Court of Australia
‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Antecedents and personal circumstances’ – ‘Denunciation’ – ‘Deterrence’ – ‘Manslaughter’ – ‘Sentencing’ – ‘Social disadvantage’ – ‘Traditional Aboriginal and Torres Strait Islander punishment’
Charge/s: Manslaughter
Appeal Type: Appeal against sentence.
Facts: The appellant, an Aboriginal man, pleaded guilty to the manslaughter of his de facto spouse. He was sentenced to five years and three months’ imprisonment with a non-parole period of three years and three months’. The DPP appealed to the Court of Appeal on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the appeal and resentenced the appellant to seven years and nine months’ imprisonment with the same parole eligibility conditions. The appellant and the deceased had been in a relationship for approximately 16 years. On the day the deceased was killed, the appellant and the deceased spent the afternoon at a local tavern and both became intoxicated. After returning home, an argument ensued and the appellant assaulted the deceased in a prolonged and brutal way. He threw the deceased about the room, rammed her head into walls and repeatedly punched her on the face and head. There was a history of significant domestic violence in the relationship, including a conviction for grievous bodily harm for which the appellant was sentenced to 12 months’ imprisonment (conditionally suspended) as well as a conviction for common assault. The appellant was subject to a lifetime violence restraining order in favour of the deceased which prohibited him from having any contact with her. However, this order had been ignored by both parties and the relationship had continued.
Issue/s: Some of the issues concerned –
a.
Whether the Court of Appeal incorrectly applied the principles which govern manifest inadequacy of a sentence.
b.
Whether the Court of Appeal erred by failing to pay sufficient regard to the appellant’s antecedents and personal circumstances, in particular the systemic deprivation and disadvantage (including endemic alcohol abuse which is prevalent in Aboriginal and Torres Strait Islander communities) that the appellant faced.
Decision and Reasoning: The appeal was dismissed by majority (Bell J dissenting).
a.
The joint majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) found no error in the Court’s approach to the issue of manifest inadequacy. In the Court of Appeal, McLure P made express reference to the gross over-representation of Aboriginal people in the criminal justice system (particularly in relation to manslaughter) which is directly related to alcohol and drug abuse. Her Honour also made reference to various ‘weighting errors’ in the sentencing at first instance. The Court held that there was no error in this approach. See in particular at [37], where the joint majority noted ‘her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate".
See also McLure P’s statement quoted at [41] – "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The joint majority approved these remarks at [42] – ‘The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong.’
b.
The appellant did not submit that ‘Aboriginality per se warrants leniency’ (see at [47]). Rather, the appellant contended that social and economic issues commonly associated with Aboriginal communities affected the appellant and that these should have been treated as mitigating factors. He also contended that he was likely to receive traditional Aboriginal and Torres Strait Islander punishment when released from prison and that he was ‘willing, and indeed anxious’ (see at [49]) to subject himself to this payback. He submitted that this should have received greater significance as a mitigating factor.
In dismissing these arguments, the Court noted that while mitigating factors such as social disadvantage need to be afforded appropriate weight in sentencing, this cannot result in the imposition of a penalty which is disproportionate to the gravity of the offending. In particular, the Court noted at [53] – ‘To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’ and ‘Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.’
The Court also addressed the argument that general deterrence has less significance in relation to crimes which are not premeditated in the context of social disadvantage. In dismissing this assertion, the Court noted that the criminal law is not limited to the ‘utilitarian value of general deterrence’ and stated that the obligation of the State is ‘to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’ (see at [54]). Furthermore, the gravity of the offending in this case was extremely high - see at [55] –
‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’
In relation to the appellant’s alcohol addiction, McLure P held that this factor would increase the weight to be given to personal deterrence and community protection. The joint majority of the High Court agreed and noted that the fact the appellant was affected by an environment of alcohol abuse should be taken into account in assessing personal moral culpability, but this has to be balanced with the seriousness of the offending. See further at [57] where the majority of the High Court said– ‘It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.’
In relation to the relevance of traditional Aboriginal and Torres Strait Islander punishment, the High Court’s disposition was that the appellant’s willingness to submit to this punishment was not a relevant consideration in sentencing. However, the first instance judge did take it into account, which was not challenged in the Court of Appeal. While the joint majority of the High Court did not offer a conclusive opinion, they noted that the courts cannot condone the commission of an offence or ‘the pursuit of vendettas’ and held that the appellant did not suffer injustice because the prospect of traditional punishment was given only limited weight (see at [61]-[63]).
Bell J dissented. Her Honour held that it was open to the primary judge to reach the sentence that he did, based on comparable authorities. Bell J was also critical of the practice of giving too much weight to the maximum penalty, given the wide variety of circumstances in which manslaughter convictions can arise. Her Honour stated that a sentence well short of half the maximum penalty does not of itself give rise to legal error.
Roach v The Queen [2011] HCA 12 (4 May 2011) – High Court of Australia (appeal from Queensland Court of Appeal)
‘Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Probative value’ – ‘Propensity evidence’ – ‘Relationship evidence’
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against conviction.
Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides that ‘[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.
Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.
The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that the rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).
Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.
The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:
‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].
The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:
[45] In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.
[47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.
[48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) – High Court of Australia
‘Adjournments’ – ‘Amendment’ – ‘Appeal’ – ‘Case management’ – ‘Pleadings’ – ‘Practice and procedure’
Hearing: Appeal against decision to allow amendments to statement of claim.
Facts: ANU applied for an adjournment at trial to make substantial amendments to its statement of claim against Aon. The adjournment was granted and the primary judge allowed the application to amend the statement of claim. Aon appealed against the decision.
Decision and Reasoning: This case did not concern family violence but contained a number of relevant statements regarding adjournments. French CJ referred to the decision in Sali v SPC Ltd, which concerned the refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, the High Court held there ‘that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’’ (see [26]). Brennan, Deane and McHugh JJ went on to say:
‘What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources’.
Toohey and Gaudron JJ dissented in the result but acknowledged that:
‘The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard’.
In the present case, French CJ stated at [27]:
‘The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn’.
Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
‘Battered woman syndrome’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Expert testimony - psychologist’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Self-defence’
Charge/s: Murder
Appeal Type: Appeal against conviction.
Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at [4]). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at [50]).
The psychologist outlined the general characteristics of battered women as follows (at [51]):
1.
they are ashamed, fear telling others of their predicament and keep it secret.
2.
they tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocussed.
3.
they have an increased arousal and become acutely aware of any signal of danger from their partner.
4.
they may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
5.
in severe cases, they may live with the belief that one day they will be killed by the other person.
Issue/s: Some of the issues concerned –
1.
Provocation - Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of provocation’ (see at [155]).
2.
Self-defence – Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of self-defence’ (see at [155]).
Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.
Gaudron and Gummow JJ:
“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at [53])
“…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at [55])
“So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at [56])
“…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at [60])
Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at [239]). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.
McHugh J did not make any comments on BWS.
Kirby J:
His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at [159]).
His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at [161]).
Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at [161]).
Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at [167]).
M v M (1988) 166 CLR 69; [1988] HCA 68 (8 December 1988) – High Court of Australia
‘Allegations of sexual abuse’ – ‘Custody order’ – ‘Risk’ – ‘Test to be applied’ – ‘Unacceptable risk’
Proceedings: Appeal against custody order.
Facts: The trial judge made an order giving the wife guardianship and custody of the child. The wife alleged that the father had sexually abused the child and that the child’s welfare would be put at risk in allowing the father custody. The trial judge was not satisfied that the father had abused the child. However, His Honour considered that there was a possibility that the child had been sexually abused by the father. Accordingly, in the interests of the child, His Honour held that he should eliminate the risk of such abuse by denying access to the father. The father appealed this decision.
Issue/s: What is the correct approach in dealing with sexual abuse allegations and unacceptable risk?
Reasoning/Decision: The appeal was dismissed. The approach to be taken in these matters is not one of competing rights of the parents or ever purely a finding for or against either based on the evidence in support of the allegations. The approach is to determine on all of the evidence what is in the best interests of the child.
The Court concluded and held at [25]:
‘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”, “an element of risk” or “an appreciable risk”, “a real possibility”, a “real risk”, and an “unacceptable risk”. 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’.
With regards to the consideration of risk, it is in “achiev[ing] a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. A finding of sexual abuse need not be made to make a finding of unacceptable risk.
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 (17 June 1970) – High Court of Australia
‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Relationship evidence’ – ‘Relevance’ – ‘Statements made by deceased's wife charging accused with desire to kill her’
Charges: Murder.
Appeal Type: Application for special leave to appeal against conviction.
Facts: The facts of this case were summarised concisely by Martin CJ (with whom Pullin JA and Hall J agreed) in O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) [DT1] at [26] as follows -
‘[T]he appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused.
Issue/s:
a.
Whether the statements made by the appellant’s wife were admissible.
b.
If they were admissible, whether they should have been excluded by the trial judge because their probative value was outweighed by the potential prejudice to the accused.
Decision and Reasoning: The Court unanimously dismissed both grounds of appeal and held that the evidence was admissible.
a.
Barwick CJ noted at [3] that, ‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.’ Evidence of the ‘nature of the current relationship between the applicant and his wife’ was relevant to the appellant’s guilt. Evidence of a ‘close affectionate relationship’ could be used by the jury to conclude that the appellant was not guilty. Evidence of hostility in the relationship could be used by the jury to conclude that the appellant’s argument that the shooting was accidental lacked credibility. His Honour did concede that if the deceased’s statements ‘had not been part of the evidence of a quarrel of a significant kind’ ([8]), they would have been inadmissible. However, in this case the statements were part of a ‘quarrel’ between the parties and were indicative, ‘of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached’ (see at [8]). More generally, his Honour concluded that ‘evidence of the relations of the accused with others’ is admissible not only in cases where it establishes motive, though this may be the most common way in which it is used. This type of evidence could also be admissible if it explains an ‘occurrence’ or assists in the choice between two explanations of an ‘occurrence’ because such evidence satisfies the test of relevance (see at [7]).
Menzies J (with whom McTiernan J and Walsh J agreed) reached the same conclusion –‘To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife’(see at [4]).
b.
Barwick CJ held that while the deceased’s statements were damaging to the appellant, they were not prejudicial, and showed, ‘the depths to which the relationship of the parties, as husband and wife, had sunk’ (see at [9]).
Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34 (30 June 1938) – High Court of Australia
‘Civil cases’ – ‘Evidence’ – ‘Standard of proof’
Proceedings: Petition for divorce on the ground of adultery.
Facts: The applicant sought a dissolution of his marriage to his wife on the ground of her adultery.
Issue/s: What is the standard of proof required in civil matters?
Decision and Reasoning: In explaining the civil standard of proof, Dixon J stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a mere mechanical comparison of probabilities’. His Honour went on to explain that the standard is one of ‘reasonable satisfaction’:
‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency’.
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) – Family Court of Australia (Full Court)
‘Application to adduce further evidence re criminal history and family violence’ – ‘Family law’ – ‘Fatal strangulation’ – ‘Hague convention’ – ‘History of family and domestic violence’ – ‘Intolerable situation’ – ‘Non’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Systems abuse’ – ‘Victims as (alleged) perpetrators’
Issue: Application for leave to appeal, application to adduce further evidence re criminal history and family violence.
Grounds:
•
The primary judge erred in the application of the grave risk of physical or psychological harm defence (Ground 1);
•
The primary judge erred in the finding that there is no immediate prospect of a resumption of the parental relationship (Ground 2);
•
The judge erred by assuming that the current protection orders in New Zealand would remain in place (Ground 3);
•
The intolerable situation defence applies (raised by the Court).
Facts: The appellant fled New Zealand with the assistance of New Zealand Police with her two children, in mid-2019 she believed the children’s father posed a real risk to her and the children. The father had an extensive criminal history which demonstrated "a pattern of increasingly serious charges against the father (not all of which resulted in convictions), domestic violence offences and breaches of bail and parole" [29]. The mother gave evidence of her intention to remain separated from the father but argued that the extensive history of repeated reconciliations between them meant the court should not have accepted that her intention to remain separated would ensure the children’s safety if they were returned to New Zealand. The father invoked the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Abduction Convention’) to secure the children’s return [1]. The application for recovery was made by the Secretary of the Department of Communities and Justice (NSW) as the "Central Authority" under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"), an Independent Children’s Lawyer (ICL) was appointed and argued at first instance against the Hague Convention Application being granted, but the judge accepted the mother’s evidence she would not resume cohabitation with the father and the application was granted. The mother sought leave to appeal and applied to lead more evidence of the father’s criminal history and family violence history. The ICL did not participate in the application for leave to appeal despite the order for their participation remaining on foot.
Judgment: Leave to appeal granted. Appeal allowed on basis of the intolerable situation defence (not raised as a ground of appeal but by the Court).
Both Ground 1 and Ground 2 contended that the primary judge erred in finding that there is no immediate prospect of a resumption of the parental relationship. This error was based on the judge’s acceptance "of the mother’s evidence that she had permanently separated from the father and had taken necessary steps to keep him away from her and the children" [51]. In support of these contentions, the mother submitted that the primary judge should have considered her history of separation and reconciliation with the father and instead concluded that it was thus unsafe to assume she would cooperate with attempts to keep her and the children safe. The Court noted that this position was inconsistent with the evidence submitted by the appellant at trial and concluded that "given the manner the case was run at trial" the grounds could not succeed [534].
Ground 3 contended that the primary judge erred in assuming that the protection orders against the father in New Zealand would remain in place. As the mother did not submit as part of her case at trial that she would agree to the father’s application to discharge these protections orders being granted, nor was there evidence that the father’s application had any prospect of success, the third ground was "not made good" [55].
Ryan, Aldridge and Watt JJ all, in separate judgements, granted leave and allowed the appeal after considering the intolerable situation defence under reg 16(3) of the Family Law (Child Abduction) Regulations 1986 (Cth). It was noted that the father’s previous convictions and violence, the pattern of parental separation and reconciliation, and the totality of the circumstances in which the children would find themselves if they were to return to New Zealand were unsafe and intolerable [63].
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the matter: [78] ‘We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.’
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Stringer & Nissen (No. 2) [2019] FamCAFC 185 (23 October 2019) – Family Court of Australia (Full Court)
‘Appeal’ – ‘Failure to consider evidence relevant to the child's best interests’ – ‘Parenting orders’ – ‘Relocation’
Case type: Appeal against interim parenting orders as to with whom the child, X, should live.
Facts: The parties separated in 2015 when X was around 6 months old. In 2015, the parties entered into a parenting plan. In early 2019, the mother and X moved from Town A to live in Sydney. The mother did not tell the father she was leaving Town A because she was afraid of what he might do to her or X, and said that, during the relationship, the father was aggressive and abusive towards her. After leaving Town A, the parties made arrangements for X to spend time with the father until March 2019. At the end of that time, the father refused to return the child to the mother. The primary judge ordered that the parties have equal shared parental responsibility of X and that if the mother returns to live in Town A, then X will live with her, but that if the mother does not return to Town A, then X will live with the father. At the heart of the Court’s decision was the denunciation of the mother’s unilateral decision to move away from Town A.
Issue: Whether it was in the best interests of X to live with his mother in Sydney or with his father in Town A?
Held: The Full Court of the Family Court of Australia allowed the appeal against the orders of the primary judge. Their Honours found that the primary judge did not engage in a careful consideration of the evidence, as he failed to take into account the mother’s evidence that she did not tell the father she was moving because she feared him. The Full Court was also perplexed as to why the father’s unilateral decision not to return X to his mother was not denounced in the same way as the mother’s unilateral decision to relocate without telling the father. The Full Court also found that the primary judge misapprehended the nature and extent of the family violence and misapplied legal principles.
At [45], the Court found:
“The allegations of family violence, together with the mother’s concern as to the father’s alcohol abuse were matters on which she relied to demonstrate that it would not be in the child’s best interests to live with the father and his Honour ignored a fundamental integer of the mother’s case which was that there was a risk to the child from being exposed to family violence. The orders she sought for time would however, provide for the maintenance of the child’s relationship with the father while he remained living with his mother. His Honour’s approach was erroneous in principle and to the facts.”
Keating & Keating [2019] FamCAFC 46 (21 March 2019) – Family Court of Australia (Full Court)
‘Contributions’ – ‘Domestic violence’ – ‘Kennon principles’ – ‘Property settlement’
Case type: Appeal.
Facts: The husband was a tradesman and operated a business, called the Keating Group, through a complex trust and corporate structure. The Group traded throughout the marriage, and since the parties separated in 2010, the husband managed and operated it. Its value and dramatic increase in the husband’s director loan account to the Group were key issues in the proceedings. The primary judge separated the parties’ property into 2 pools: non-superannuation assets and property and liability, and superannuation. The non-superannuation property was worth $1,784,854; however as a result of the husband’s indebtedness to the Group and expenses associated with a failed taxation minimisation scheme, liabilities exceeded assets by $804,805. The husband’s and wife’s contributions were assessed at 70% and 30% respectively. Their superannuation contributions were assessed as equal. No adjustment was made under section 75(2) of the Family Law Act 1975 (Cth).
The wife was ordered to retain her personal possessions, her bank account, car and $12,000 previously received by way of partial property settlement. She also received a superannuation split of $119,000 and 50% of any payment received as a result of a pending class action relating to the tax scheme. The husband retained the Group, which had an annual turnover of $4 million and which provided him with a superior standard of living. He remained personally liable for his loan account and debts due in relation to the tax minimisation scheme.
The wife alleged that she was subject to family violence at the hands of the husband during and after their relationship. Her evidence included that the husband broke her nose, beat her on an overseas trip until she passed out, and that she suffered serious bruising and broken ribs. The primary judge dismissed all incidents of violence towards the wife except that which resulted in her broken wrist, apparently because her evidence was uncorroborated ([41]).
Issue: The wife appealed the property settlement orders on 7 grounds. Relevant grounds of appeal include that:
•
The primary judge failed to give adequate reasons for his conclusions and to sufficiently engage with the wife’s case (Grounds 1 and 5).
•
The wife claimed an adjustment, which the primary judge refused to make, arising from family violence under the ‘Kennon’ principles (Ground 4).
Held: The Full Court allowed the appeal against the property order.
Grounds 1 and 5.
At [23]-[24], Ainslie-Wallace and Ryan JJ held –
‘[H]is Honour went no further than to say that the wife was ‘aware’ that the investment scheme was unsuccessful…The issue was whether she knew of and supported the husband’s investment in the scheme to the extent that she should shoulder half of the resulting debt. In the result, his Honour’s decision to fix both parties with responsibility for the debt was made ‘…because [the debt] actually exists…’
‘His Honour’s finding that the wife was ‘aware’ that the investment scheme failed falls considerably short of engagement with the reasons why the wife said she ought not to be fixed with joint responsibility for the debt. The same applies to the finding that the debt ‘actually exists’. Although parties would ordinarily be expected to take the good with the bad, there was no active engagement by the primary judge with the wife’s case that the husband should bear sole responsibility for the debt and why.’
Given the primary judge’s failure to engage with the wife’s case on these matters, the Court held that Grounds 1 and 5 had been established.
Ground 4.
The wife argued that she was exposed to significant family violence by her husband during and after the relationship. She sought an adjustment under the principle in Kennon & Kennon (1997) FLC 92-757 where it was held that family violence, which is demonstrated to have a significant adverse impact upon one party’s contributions to a marriage, is a relevant consideration to the assessment of contributions within section 79. According to the Court in Kennon, it is necessary to adduce evidence to prove the incidence and effect of domestic violence, and to enable the court to quantify the effect of that violence upon the parties’ capacity to ‘contribute’ under section 79(4) ([37]). The Court in Kennon also stated that family violence will be relevant if the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party ([36]).
However, at [33] the Full Court held –
‘The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship.’
The Court went on to state that Kennon should not be interpreted as laying down a precise rule that ‘post-separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant’. The reference to ‘quantification’ in Spagnardi & Spagnardi [2003] FamCA 905 appeared ‘to elevate the need for an evidentiary nexus or ‘discernible impact’ between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence.’ Their Honours stated that perhaps the use of the word ‘quantification’ in Spagnardi was ‘infelicitous’ when in truth, the Court ‘was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions’ ([39]). Their Honours also affirmed the well-settled view that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted ([42]).
The Court could not conclusively determine whether the primary judge’s decision not to make a ‘Kennon’ type adjustment was wrong due to the absence of a transcript ([43]). While Kennon appears to remain sound law, its considerations apply to ‘a relatively narrow band of cases’ ([67]).
Atkinson v Atkinson [2017] FamCAFC 266 (13 December 2017) – Family Court of Australia (Full Court)
‘Allegations of domestic and family violence’ – ‘Alleged false allegations of child abuse’ – ‘Appeal against recovery order’ – ‘Interim parenting orders’ – ‘Recovery order’ – ‘Separation’ – ‘Systems abuse’
Proceedings: Father’s appeal against interim parenting orders, including a recovery order.
Facts: The mother applied for, and was granted, a recovery order for the return of the child after the father failed to return the child to the mother following fortnightly weekend contact. The father argued that the mother physically abused the child and the mother alleged that the father engaged in a pattern of emotional abuse such as to constitute family violence by persistent allegations that the mother physically abused the child.
Issue: Whether the primary judge erred in failing to appoint a single expert before making a recovery order.
Judgment: Appeal dismissed. Interim orders that the child reside with the mother.
In finding that the primary judge did not err in failing to appoint a single expert before making interim orders including a recovery order after the father retained the child Ryan J noted (Johnston and Thackray JJ agreeing):
[49] …the mother’s application was for a recovery order after the father retained the child. The application demanded a prompt response and in my view an adjournment for in all probability many months would not have been in the best interests of the child.
Ralton and Ralton [2017] FamCAFC 182; (7 September 2017) – Family Court of Australia (Full Court)
‘Appeal’ – ‘Application of domestic and international human rights law under the family law act 1975 (cth)’ – ‘Bias’ – ‘Children’ – ‘Costs’ – ‘Family law’ – ‘No merit’ – ‘Procedural fairness’ – ‘Self-represented litigant’ – ‘Unsuccessful application for stay of proceedings’ – ‘Weight of evidence’
Matter: Mother’s appeal against parenting orders that the children B and C reside with the father, he have sole parental responsibility and the mother have limited supervised contact, to progress to alternate weekends and half the school holidays.
Facts: Earlier orders made in 2010 had provided for the children to reside with the mother and have contact with the father. In 2014 and 2015 the children only spent time with the father intermittently. B, in particular, became reluctant to spend time with the father, and in 2016 twice avoided contact by running away from school. The trial judge found that the children were “at risk of longer-term psychological harm in the mother’s household” and would not have any real relationship with their father if they remained in the mother's care [4]. The Independent Children’s Lawyer (‘ICL’) supported the father’s position.
Grounds: The mother’s grounds of appeal were “difficult to follow and understand” and her submissions “did not seek to explain why the primary judge erred but were rather a lengthy and detailed assertion of wrongdoing by his Honour.
Decision: ICL granted leave to appear. No error established and appeal and applications in an appeal dismissed. Mother to pay the father’s costs of the appeal.
Parental alienation was considered in circumstances where the mother appealed against parenting orders on the basis that orders had been made with insufficient consideration of the alleged family violence of the father and the expert witnesses were biased (the Full Court - Bryant CJ, Strickland & Aldridge JJ).
[187] The primary judge was at pains to avoid the use of labels such as “parental alienation” or “enmeshment”. Speaking of the Associate Professor’s evidence, which included a discussion of these concepts, his Honour said:
The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests. (quoting from the primary judgment at [70])
[192] … There is therefore no need for us to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
Saska & Radavich [2016] FamCAFC 179 (1 September 2016) – Family Court of Australia (Full Court)
‘Definition of family violence in section 4ab’ – ‘Key statutory provisions in the family law act’ – ‘Meaning of ‘family violence’’ – ‘Mother a family member by operation of section 4(1ab)’ – ‘Parenting orders’ – ‘Presumption of equal shared parental responsibility’ – ‘Section 61da’ – ‘Whether mother a member of the family of the father within the meaning of section 4ab’
Proceedings: Appeal - parenting orders.
Facts: The trial judge made final parenting orders which included an order that the mother have sole parental responsibility for the child of the mother and the father. In making these orders, the trial judge found that the father’s behaviour towards the mother amounted to ‘family violence’ within the meaning of s 4AB of the Family Law Act. As a result of this family violence, the presumption of equal shared parental responsibility for the child in s 61DA of the Act did not apply: s 61DA(1). Further, even if the presumption had applied, the trial judge held that it would still not have been in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(4). The father appealed against these orders.
Issue/s: Some of the grounds of appeal included –
•
The trial judge erred in finding that the father’s behaviour towards the mother constituted family violence within the meaning of s 4AB(1) because the mother was not ‘a member of the [father’s] family’ as defined in s 4(1AB). Accordingly, the trial judge erred in finding that the presumption of equal shared parental responsibility was rebutted because the father had not engaged in family violence: s 61DA(2)(b).
•
The trial judge erred in finding in the alternative that the presumption was rebutted because equal shared parental responsibility was not in the best interests of the child: s 61DA(4).
Reasoning/Decision: The appeal was dismissed. The Full Court held that the father’s appeal was always doomed to fail because it rested on a misconceived interpretation of s 4(1AB) of the Act. Relevant to the proceedings, the combined effect of s 4(1AB)(e) and s 4(1AC) was that the child was a member of the father’s and a member of the mother’s family. It was never in issue in the proceedings that the mother resided with the child at the material times, the child being a member of the father’s family. Thus, by operation of subparagraph (h) of s 4(1AB), the mother was a member of the father’s family. Further, within the meaning of subparagraph (i) of s 4(1AB) each of the mother and the father, respectively and alternatively, ‘is or has been a member of the family of a child of [the other]’. Accordingly, the father had engaged in family violence against ‘a member of his family’ (see [17]-[24]).
The father’s contention that the trial judge erred in rebutting the presumption of equal shared parental responsibility because the father had committed family violence was therefore dismissed. As demonstrated above, the contention that there was no family violence in this case because the mother was not a member of the father’s family was based on an erroneous reading of the Act.
Additionally, while the trial judge was correct to apply s 61DA(2) and conclude that the presumption did not apply, it was also well within her discretion to conclude that even if the presumption had applied, it would have been rebutted in the child’s best interests: s 61DA(4).
The father also argued that the mother wasn’t fearful, and so the finding of family violence was erroneous. For this argument to be effective, the words of s 4AB(1) would need to be read conjunctively, not disjunctively, as the section is worded. The family member being ‘fearful’ is one possible manifestation of family violence, but is not necessary to make a finding of family violence.
Salah & Salah [2016] FLC 93-713; [2016] FamCAFC 100 (17 June 2016) – Family Court of Australia (Full Court)
‘Ignoring allegations of family violence’ – ‘Interim parenting orders’ – ‘Treatment of issues of family violence’
Appeal type: Appeal against interim parenting orders.
Facts: At the contested interim hearing, the mother made allegations of significant family violence perpetrated by the father in the presence of the children. In light of this and one of the children’s epilepsy and developmental delay, she sought an order directing the father’s care of the children to be supervised by another adult. The father disputed the allegations of family violence. In making interim parenting orders, the trial judge said (see [23]-[27]):
‘The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.
[…]
Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out’.
Issue/s:
1.
The trial judge made several errors of principle in considering the issues of family violence namely, His Honour erred in his consideration of the family violence issues, failed to have regard to s 61DA(3) of the Act and failed to follow the legislative pathway in his determination of the interim issues.
2.
The trial judge failed to take into account relevant facts.
3.
The trial judge failed to give adequate reasons for his determination.
Reasoning/Decision: The appeal was allowed. The Court noted at [36] that, ‘[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial’.They continued at [39]-[40]:
‘In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
…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.
The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH)’.
The Court held that while the trial judge was correct in stating that, at that point, he could not make findings on the disputed allegations, he erred by ignoring the allegations of family violence and finding that the presumption of equal shared responsibility applied. His Honour further erred in his treatment of the allegations of family violence by suggesting with that comment ‘given no other evidence’ that the mother’s allegations required corroboration or objective support and erred in incorrectly referring to the civil standard of proof (see [41]-[45]). Grounds two and three were also successful for similar reasons (see [60],[65]).
Holsworth & Holsworth [2016] FamCAFC 98 (9 June 2016) – Family Court of Australia (Full Court)
‘Children’ – ‘Interim orders’ – ‘Physical violence and harm’ – ‘Where the trial judge could not make findings on allegations of family violence until the evidence was properly tested at trial’
Proceedings: Appeal of interim procedural orders in relation to parenting proceedings
Facts: The parties reached agreement in November 2010 that the children live with the mother and spend time with the father. Almost a year later the mother was “psychiatrically unwell” and the children began to live with the father and spend time with the mother. After many years of litigation, including the appointment of an ICL, one child had returned to live with the mother and was to spend time with the father. The matter was listed for trial and an updated family report was ordered.
One ground of appeal was that “[t]he trial judge failed to give sufficient weight to the mother’s evidence of family violence and did not accept the mother’s evidence of it because she had not produced “third party evidence”.
Issues: In the context of apprehended bias, was the trial judge correct in not determining issues of family violence at an interim hearing?
Reasoning/Decision: The Full Court found that the mother’s assertions regarding the trial judge’s consideration of the evidence of family violence were “unsupported by the transcript”. In addition, her Honour was correct in not making findings “until such time as the evidence had been tested” – something which would happen at the final hearing of the matter. Despite the grounds purportedly being a challenge to the trial judge’s “failure to recuse herself”, it was apparent to the Full Court that they were really a complaint that the trial judge did not accept the mother’s evidence, including that of family violence, at the interim stage of proceedings.
The appeal was dismissed.
Baghti & Baghti and Ors [2015] FamCAFC 71 (5 May 2015) – Family Court of Australia (Full Court)
‘Evidence’ – ‘Expert testimony’ – ‘Family reports’ – ‘Findings of fact in relation to allegations of family violence’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Weight on the expert evidence’
Proceedings: Appeal against parenting and property orders
Facts: There is one child of the marriage. The parties married in 2002 and separated in late 2008/ early 2009, continuing to live under the same roof until November 2009. The mother claimed that up until November 2004 she was the primary carer for the child and the father worked. In November 2004 the mother went back to work and the father became the primary care-giver for the child. The child had health issues which would require visits to the hospital. The father consulted medical practitioners about the child’s weight and would weigh the child after time in the mother’s care. Around “September 2009 the husband arranged for ongoing surveillance of the wife”. In October the mother became aware of the surveillance and asserted stress and digestive issues as a result. This also affected the child. A consultant psychiatrist provided a Family Report to the Court on 9 January 2011. This report included discussion of risk associated with physical violence during the marriage in addition to the conflict and hostility between the parties in association with the child’s medical issues. It also included risk to the child in regards to the father’s obsession with “health and welfare”.
Issues: Whether the judge erred in attributing significant weight to the family report.
Whether the judge should have made a finding in relation to family violence.
Reasoning/Decision: Despite the father having opportunity to cross-examine the report writer at trial, and opportunity to raise his concerns about the report with the writer, and opportunity for the father to submit to the judge that the report be given little weight, no such cross-examination was forthcoming at trial, and no like submission was made to the trial judge. It was determined that not only was the judge entitled to rely on the expert report as he did, the father was not entitled to make his complaint about its handling to the appeal court.
In the “background facts” of the judgment the trial judge discussed allegations of family violence made by the mother but made no finding that the violence, as alleged, had occurred. The trial judge was not in error by not making findings – “A court need only determine those facts that are necessary for the determination of the issues between the parties”.
Slater & Light [2013] FamCAFC 4 (5 February 2013) – Family Court of Australia (Full Court)
‘Children’ – ‘Emotional and psychological abuse’ – ‘Notice of risk’ – ‘Parenting orders and impact on children’
Case type: Appeal against final parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, Magistrate Coates made interim parenting orders. The father unsuccessfully appealed against those interim orders (see Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011)).
Subsequently, final orders were made providing that the mother have sole parental responsibility for the children, that the children live with the mother and spend supervised time for two hours per fortnight with the father. The order for supervised time was for an indefinite duration (see Slater & Light [2011] FMCAfam 1021 (22 September 2011 ) ([1]).
Magistrate Coates’ orders turned on a finding that the father posed an unacceptable risk of emotional harm to the children ([2]). The emotional harm was said to take the form of imposing on the children negative views of their mother, alienating the children from their mother and a chaotic regime for the children ([22]).
Issues: Whether Magistrate Coates erred in:
•
finding that there was an unacceptable risk of harm to the children; and
•
ordering supervised time of an indefinite duration ([2], [29]).
Decision and Reasoning: The appeal was partially allowed. The Court held that the Magistrate did not err in finding that the father posed an unacceptable risk of harm to the children ([69]). This conclusion was open on the psychiatric reports
However, the Court found that the Magistrate erred in ordering an indefinite supervision order, when this was not requested by either the mother or the Independent Children’s Lawyer ([69]-[70]).
The issue of the time and the circumstances in which the father should spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Coates (see Order 3).
McGregor v McGregor (2012) FLC 93-507; [2012] FamCAFC 69 (28 May 2012) – Family Court of Australia (Full Court)
‘Contact proceedings’ – ‘Emotional and psychological abuse’ – ‘Failure to properly admit academic opinions as evidence’ – ‘Information sharing’ – ‘Opinion evidence’ – ‘Parenting orders and impact on children’ – ‘Parties unaware of use of material’ – ‘Reliance upon academic literature as basis for orders’
Appeal type: Appeal against parenting orders and property orders.
Facts: Prior to the trial, the three children of the relationship lived with the father. In parenting and property proceedings, the Federal Magistrate concluded that the father had been physically and verbally aggressive to the mother and that the father had alienated the children from the mother. The Federal Magistrate accordingly made orders for the children to live with their mother. In reaching this conclusion, the Federal Magistrate referred extensively to external literature. The father appealed against this decision.
Issue/s: One of the grounds of appeal was that the magistrate failed to accord the husband natural justice/procedural fairness because the husband was not given the opportunity to cross-examine, respond to or introduce contrary evidence in relation to a number of academic opinions relied upon by the magistrate in reaching his decision.
Reasoning/Decision: The appeal was upheld and the matter remitted for hearing. The Full Court held that the Federal Magistrate placed considerable reliance on the academic literature on the topic of alienation of children. None of it was introduced into evidence as opinion evidence, and accordingly no consideration was made by the Federal Magistrate as to whether to exclude the evidence and, if not, to consider what weight to give it. Accordingly, none of this evidence was able to be tested by the father nor was it the subject of submissions or contrary evidence. There was therefore a failure to afford the father natural justice and procedural fairness (see [118]-[121]).
Baranski & Baranski (2012) 259 FLR 122; [2012] FamCAFC 18 (10 February 2012) – Family Court of Australia (Full Court)
‘Children’ – ‘Procedural fairness’ – ‘Property settlement’ – ‘Where the court was not persuaded that the learned federal magistrate erred in his approach to the wife's claim for a 'kennon type adjustment'’ – ‘Where undisturbed findings of fact made by the learned federal magistrate amply supported the conclusion he reached in relation to this issue’ – ‘Whether the learned federal magistrate impermissibly relied upon extrinsic material and failed to accord the parties procedural fairness’
Appeal type: Appeal against parenting and property orders.
Facts: The parties had twins. Serious incidents of family violence occurred during their relationship and after separation. At the hearing of the trial, the father was in prison having been convicted of aggravated assault on the mother. Mother granted sole parental responsibility and the children to live with her. The father was to have supervised time (these orders were interim). Property – 25% adjustment re Kennon.
Issues: In making findings regarding family violence and its effect on the mother and children, did his Honour impermissibly take account of extraneous material? Did his Honour err in making a “Kennon type adjustment”?
Decision/Reasoning: The Court held that despite including reference to the mother’s conduct in the courtroom when faced with the father and the discussion about a report, the passages of which were included and relied upon in Re: L (Contact: Domestic Violence) [2000] 2 FLR 334, a decision of the England and Wales Court of Appeal (Civil Division). They were on the public record and so “materially different from matters appearing in reports” which have not yet undergone judicial consideration. While this alone does not guarantee that procedural fairness is achieved in circumstances where the parties were not on notice about the report and did not have opportunity to cross-examine accordingly, the Full Court held that “anything said in Re: L was not necessary to establish the relevance of the findings” made by the Federal Magistrate.
Regarding the property settlement and the “Kennon type adjustment”, the Full Court found that while it represented the “top of the range” it did not “exceed the bounds of a reasonable exercise of discretion”. Regarding the violence that was perpetrated post-separation, the Full Court held it was correctly included by the Federal Magistrate and was a relevant consideration in determining whether the mother’s contributions as a whole were more arduous.
Wolfe & Director-General, Department of Human Services [2011] FamCAFC 42 (4 March 2011) – Family Court of Australia (Full Court)
‘Allegations of child abuse’ – ‘Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Parenting proceedings’
Matter: Hague Convention return order appeal.
Facts: The mother unsuccessfully opposed the father’s application for return of the children to New Zealand. There were ongoing parenting proceedings between the mother and father in New Zealand, where the mother conceded the children had been habitually resident for their whole lives. The current New Zealand orders (made following a hearing in which the mother alleged the father had abused the children and been violent towards her) provided that the children reside with the mother and have one and a half hours contact with the father each weekend. The mother’s new partner was violent towards her and the children were exposed to that violence. The mother fled New Zealand and returned to her native Australia after leaving her new partner. She gave evidence that the children were fearful to return to New Zealand due to concerns about her new partner.
Held: Appeal dismissed.
Bryant CJ, Finn and May JJ noted the first instance judge’s comments with approval:
“[i]n part, she relied on her own refusal to establish that a return of the children would place them in an intolerable situation”. Her Honour disposed of this aspect of the mother’s case by saying, correctly, in our view, that “[i]t is well established that, ordinarily, the objects of the Convention should not be frustrated by a parent’s refusal to return with children to their country of habitual residence”. [32]
Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011) – Family Court of Australia (Full Court)
‘Children’ – ‘Notice of risk’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Psychiatric report’ – ‘Risk’
Appeal type: Appeal against interim parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, the Federal Magistrates Court made interim parenting orders. The effect of these orders was to allocate parental responsibility for the children solely to the mother, require the children to live with the mother and require the children to spend weekly supervised time with the father at a contact centre. The orders were made pending the preparation of a psychiatric report on the risk the father presented to the children. These orders radically altered previous arrangements, as the Federal Magistrate was concerned about the need to protect the children from physical or psychological harm that would arise from them being exposed or subjected to abuse, neglect or family violence. The father appealed against these orders.
Issue/s:
•
Whether the Federal Magistrate erred in finding that it was in the best interests of the children (a) for the father’s time to be supervised and (b) to significantly reduce the time they spent with the father.
•
Whether the Federal Magistrate had erred by allocating parental responsibility solely to the respondent.
Decision/Reasoning: The appeal was dismissed. In dismissing the first ground of appeal, the Court held, amongst other findings, that if evidence of abuse or family violence is adduced at trial, the Court is obliged to deal with it. The Court must always critically assess the evidence placed before it in determining the issue (see [46]). It was also noted that a finding of family violence may be made in the absence of a Form 4 Notice.
The Court held that it was clearly open on the evidence for the Federal Magistrate to find that family violence had been perpetrated by the appellant.
In relation to the second ground of appeal, the appellant contended that the Federal Magistrate relied upon erroneous finding of family violence to then improperly find that the presumption of equal shared responsibility did not apply. The Court dismissed this argument by again noting that the finding of family violence was open to the Federal Magistrate (see [64]-[69]).
Note: final orders were subsequently made, but the finding of family violence was not affected (see Slater & Light [2013] FamCAFC 4 (5 February 2013)).
Vasser & Taylor-Black [2010] FamCAFC 36 (11 March 2010) – Family Court of Australia (Full Court)
‘Parenting orders’ – ‘Re F: litigants in person guidelines’ – ‘Self-represented litigants’
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother from parenting orders that challenged part of the process followed and some of the rulings made during the conduct of the trial. On the final day of the hearing, the self-represented mother sought to tender a 52 page document in response to the report of an expert witness.
Issue/s: One of the grounds of appeal was that trial judge failed to provide the mother with procedural fairness in not ascertaining the reason behind the preparation of this document and in not advising her that she may wish to seek legal advice before tendering the particular document, contrary to the litigants in person guidelines: Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Reasoning/Decision: The appeal was dismissed as the mother here was not the victim of unfairness. Although this appeal did not relate to family violence, the Court relevantly observed that the Litigant in Person Guidelines were no more than guidelines.
See Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Amador & Amador (2009) 43 Fam LR 268; [2009] 43 FamCAFC 196 (3 November 2009) – Family Court of Australia (Full Court)
‘Determining allegations in relation to family violence’ – ‘Evidence’ – ‘Parenting orders and impact on children’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Requirement of corroboration’
Proceedings: Appeal against parenting and relocation orders.
Facts: The parties met online and were married in Belgrade. Their child, who had autism, was born in Belgrade. The mother and the son came to live in Australia with the father when the child was 20 months old. The parties subsequently separated, with the mother alleging that the father had perpetrated domestic violence and sexual assault against her. The father denied these allegations. In 2008, a Federal Magistrate made orders granting the mother sole parental responsibility for the child. The mother was also permitted to relocate to Serbia with the child and the father’s contact time with the child was reduced from weekly to possible annual contact. The father appealed against these orders.
Issue/s: One of the grounds of appeal was that the Federal Magistrate erred in accepting the mother’s uncorroborated evidence that domestic violence and sexual assault was perpetrated by the father on the mother.
Reasoning/Decision: This ground of appeal was dismissed but the appeal was allowed on other grounds. In dismissing this ground of appeal, the Court held that a positive finding may be made on the evidence of the victim without corroborating evidence. See [79].
The Court expressed concern at the manner in which the Federal Magistrate had expressed a finding of insufficient evidence re family violence. They were concerned that the Federal Magistrate had felt in some way constrained by law in being able to make a positive determination in relation to allegations of violence even if the evidence had satisfied her on the requisite standard that the violence occurred as alleged. See [95]-[96].
Oakley & Cooper [2009] FamCAFC 133 (30 July 2009) – Family Court of Australia (Full Court)
‘Children’ – ‘Full court referred to, and discussed, the best practice principles for use in parenting disputes when family violence or abuse is alleged’ – ‘Physical violence and harm’ – ‘Whether the federal magistrate erred by giving insufficient weight to issues of family violence’
Proceedings: Appeal against parenting orders
Facts: The parties were together for approximately 7 years, separating in March 2006 – there were 2 children of the relationship. The mother had 6 children from previous relationships. The Federal Magistrate described their relationship as “extremely volatile”, ending in an incident of domestic violence. The Federal Magistrate made findings inter alia: that the parties were unable to effectively communicate with each other due to them being “aggressive, provocative … show[ing] a lack of maturity and complete absence of child focus”; that the mother used physical discipline on the children; and that on at least one occasion the mother’s behaviour at changeover was “appalling and did severely distress the children”. The family report included the opinion that the children “have positive attachments to both parents, but experience some trauma associated with the continuing conflict in their parents’ relationship”. Despite the conflict between them, the parties agreed to an order for equal shared parental responsibility. As such, the Federal Magistrate was obliged to consider equal time, or significant and substantial time with each parent. Orders were made that the children live with the mother 9 nights a fortnight and with the father for 5. The father appealed these orders.
Issues: Did the Federal Magistrate give appropriate consideration to the evidence and findings of family violence when making the parenting orders that he did?
Reasoning/Decision: The appeal was dismissed. The Full Court referred to the 2009 publication “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged”, specifically Section F of the 2009 principles which sets out considerations where children are ordered to spend time with a parent where positive findings of family violence have been made against that parent.
The Full Court found that while they agreed with the argument of the mother’s counsel, that the discussion of weight in relation to family violence had been “clipped” they found that there was no appealable error established. The Federal Magistrate had evidence of both parties and their associates hitting the children, and that both parties were verbally and physically abusive of one another in the presence of the children. Despite acknowledging that the mother’s behaviour was, at times, worse than the father's, when taken in the context of the best interests of the children, the conclusion was that it was in their best interests to remain predominantly in the care of their mother.
M & L (2007) FLC 93-320; (2007) 37 Fam LR 317; [2007] FamCA 396 (4 May 2007) – Family Court of Australia (Full Court)
‘Aboriginal and Torres Strait Islander people’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Relevance of cultural evidence’
Proceedings: Appeal against parenting orders.
Facts: Both parents were Aboriginal and Torres Strait Islander, and lived in the NT, one close to Darwin, one quite remote. There was family violence where the father would physically and verbally abuse the mother. On one occasion the paternal grandfather punched the father for hitting the mother. The mother had been the primary care giver of the children. At trial evidence was led about the communities in which each parent lived. The trial judge found that the children would have a greater connection to their father’s culture by living with him.
Issues: Whether the trial judge had adequately considered the evidence of family violence and its potential effects on the children.
Reasoning/Decision: The Full Court held that there was inadequate consideration of the risk to the children given the father’s history of violence and alcohol consumption. The lack of consideration of the evidence that the children had been primarily cared for by the mother, and that there was no evidence that her care was lacking was overlooked, was also an error. A finding was made by the trial judge that the mother’s parenting was reliant on others in the community, referring to it as “collectivist”. He based his finding on an anthropological report quoted in another judgment. There was no anthropological evidence that the mother’s community engaged in such “collective” parenting, and that the mother was not, herself, the children’s primary care-giver. The trial judge’s finding that the best interests of the children would be met by them living with their father cannot be sustained when evidence of the mother’s adequate care, the fact she was the primary care giver and the father’s violence towards the mother, is balanced against the finding of the cultural benefits to the children of living in the father’s community.
Napier & Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395; [2006] FamCA 1316 (5 December 2006) – Family Court of Australia (Full Court)
‘Contact’ – ‘Risk’ – ‘Unacceptable risk’
Proceedings: Appeal against residence and contact orders.
Facts: The proceedings involved competing applications for residence and contact to the child of the parties. The mother made allegations that the father sexually abused the child. While no finding of abuse was made, the Trial Judge did make a finding of unacceptable risk. On appeal, the father challenged the orders made for contact, in particular, the requirement that the contact be supervised.
Issue/s: The trial judge provided inadequate reasons supporting his finding of unacceptable risk of abuse.
Reasoning/Decision: Although this case did not relate to family violence, the Court made observations relevant to the assessment of unacceptable risk. Bryant CJ and Kay J held at [84] that:
‘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’.
S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003) – Family Court of Australia (Full Court)
‘Contributions must be affected by the violence’ – ‘Impact of violence on past contributions’ – ‘Kennon adjustment’ – ‘Property proceedings’ – ‘Reference to exceptional cases should not mean rare’
Appeal type: Appeal against property orders.
Facts: The parties had two adult children and separated in 2000. The trial judge made a Kennon style adjustment in favour of the wife. His Honour held that the evidence clearly revealed that there had been some violent behaviour by the husband towards the wife. Although there was no explicit evidence from the wife as regards to the effect of the violence on her contributions, the trial judge accepted that the wife’s contributions must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband.
Issue/s: One of the grounds of appeal was whether the trial judge erred in adjusting the wife’s contributions to account for the domestic violence perpetrated by the husband?
Reasoning/Decision: The appeal was allowed. Here, the evidence could not have properly led to a Kennon adjustment under section 79 (see [48]). In reaching this decision, the Court made a number of statements of principle, elaborating upon the decision in Kennon.
It was held that evidence of violence alone is not enough, but that the “violent conduct by one party towards the other” must be demonstrated to have an effect on contributions.
In addition, the Court also stated that the reference in Kennon to ‘exceptional’ cases should not be understood to mean rare. They adopted the trial judge’s comments that ‘the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. … It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’. (see [47]).
B & B [2003] FamCA 274 (8 April 2003) – Family Court of Australia (Full Court)
‘Failure to provide adequate reasons to deal with the allegations relating to violent and abusive behaviour’ – ‘Family violence’ – ‘Kennon adjustment’ – ‘Kennon not an award for damages’ – ‘Parenting orders’ – ‘Property orders’ – ‘Relevance of family violence in cases concerning the welfare of children’
Proceedings: Appeal against parenting orders and division of property.
Facts: The parties had two children together. At trial, the mother made extensive allegations of physical, verbal and emotional abuse against the father, much of which the father conceded (see [38]). The trial judge made an order that the children should predominately be in the care of their father. Additionally, the trial judge rejected the wife’s submission that the division of property ought to be adjusted to 60/40 from 70/30 division on the basis of the decision in Kennon.
Issue/s: Some of the issues were –
•
Did the trial judge err in failing to provide adequate reasons to deal with the allegations relating to violent and abusive behaviour?
•
Did the trial judge err in attributing responsibility for the domestic violence that occurred during the marriage to the wife?
•
Did the trial judge err in his application of the Kennon principle.
Reasoning/Decision:
The Court held that the trial judge was ‘obliged to adjudicate the violence issue as raised by the wife and to make specific findings in respect of the course of conduct conducted by the husband in the course of the marriage so that he could properly assess relevant aspects of the behaviour of each of the parents in determining in whose care he should place the children’. However, from reading His Honour’s reasons for judgment, it was not clear that he considered and evaluated the relevant evidence and took all the relevant factors into account. The issues raised by the wife in the grounds of appeal could not be described as ‘pernickety or overly critical’ (AMS v AIF) when matters of such significant serious and prolonged violence were clearly raised and left virtually undiscussed in the judgment (see [32]-[53]).
Secondly, the Full Court found that, the trial judge did not attribute responsibility for the domestic violence to the wife: while the trial judge found the wife to have engaged in passive/aggressive conduct, His Honour indicated in the clearest terms that he was not condoning the husband’s conduct in response to such behaviour(see [54]-[57]).
Thirdly, the Full Court held that the application of the principles in Kennonis “not the equivalent of an award for damages”, but used to determine whether the husband’s conduct had the effect of making the wife’s contributions more arduous.
T & S (2001) FLC 93-086; [2001] FamCA 1147 (29 October 2001) – Family Court of Australia (Full Court)
‘Administration of justice’ – ‘Effect of family violence’ – ‘Parenting orders’ – ‘Procedural fairness’ – ‘Re f: litigants in person guidelines’ – ‘Self-represented litigants’
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother against orders made by the trial judge in relation to the residence, contact and other specific issues relating to the child of the parties’ relationship. The effect of the trial judge’s order was that the father was to have residence of the child and be responsible for the child’s day to day care, welfare and development; and that the mother was to have specified contact with the child. The mother was unrepresented for five days of the six day hearing. A claim by the mother of domestic violence at the hands of the father was raised but the trial judge did not accept the mother’s evidence. The trial judge instead made a number of adverse findings against the mother.
Issue/s: A major ground of appeal advanced on the Mother's behalf was that she did not receive a fair trial and that a new trial should be ordered. The gravamen of the Mother's case was that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence, and because the Mother suffered from a personality disorder, the trial judge made negative findings against her, and in particular against her credibility.
Reasoning/Decision: The appeal was allowed on the basis of further evidence tendered on appeal which contained detailed evidence of ongoing domestic violence by the husband, and reports from a psychologist and social worker providing evidence as to the effect of the domestic violence on the mother’s ability to conduct her case at trial. The Court held that if the evidence had been tendered before the trial judge, it would have produced a different result and the best interests of the child required a re-hearing.
B & K [2001] FamCA 880 (14 August 2001) – Family Court of Australia (Full Court)
‘Parenting orders’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Sexual and reproductive abuse’
Proceedings: Appeal against residence orders and property settlement.
Facts: The parties had two children. The trial judge made an order for shared residency of the children. The trial judge accepted evidence that the husband had anally raped the wife.
Issue/s: Did the trial judge give sufficient weight to the family violence the husband had inflicted on the wife and the subsequent effect or impact on her of that violence in making residence orders?
Reasoning/Decision: The appeal was dismissed. At [32] the Court noted the authorities referred to by counsel for the wife in support of the argument that the trial judge did not give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife: JG and BG (1994) FLC 92-515, Patsalou (1995) FLC 92-580, Blanch v Blanch & Crawford [1998] FamCA 1908; (1999) FLC 92-837, and Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
The Full Court determined that consideration of the family violence and its effect upon the wife was adequate and orders for fortnight-about care of the children was within the trial judge’s discretion.
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 (4 June 2001) – Family Court of Australia (Full Court)
‘Contact orders’ – ‘Guidelines for matters involving self-represented litigants’ – ‘Parenting orders and effect on children’ – ‘Self-represented litigants’
Appeal type: Appeal against parenting and contact orders.
Facts: While not a case specifically dealing with family violence, there is a large proportion of self-represented litigants in family law proceedings and as such the guidelines set out in this case pertain.
Issue/s: Did the trial judge contravene the guidelines in respect of the litigants in person set out by the Court in Johnson v Johnson (1997) FLC 92-764?
Reasoning/Decision:
The Full Court provided guidelines as follows (taking a number from Johnson v Johnson (1997) FLC 92-764):
1.
A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.
A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3.
A judge should explain to the litigant in person any procedures relevant to the litigation;
4.
A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.
If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6.
A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7.
If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8.
A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150);
9.
Where the interests of justice and the circumstances of the case require it, a judge may:
◦
draw attention to the law applied by the Court in determining issues before it;
◦
question witnesses;
◦
identify applications or submissions which ought to be put to the Court;
◦
suggest procedural steps that may be taken by a party;
◦
clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
In the Marriage of Blanch; Blanch v Blanch and Crawford (1999) FLC 92-837; (1998) 24 Fam LR 325; [1998] FamCA 1908 (27 November 1998) – Family Court of Australia (Full Court)
‘Children’ – ‘Custody proceedings’ – ‘Erroneous findings of fact’ – ‘Incorrect attribution of fault to the victim’ – ‘Perpetrator responsibility’ – ‘Physical violence and harm’ – ‘Relevance of family violence’ – ‘Relevance of family violence in cases concerning the welfare of children’
Appeal type: Appeal against parenting orders.
Facts: The parties were married but separated after seven years. There were two children of the marriage. The wife made allegations of domestic violence against the father; these were denied by the father. The trial judge found at [325] that both parties were responsible for violence in the relationship, and that the relevance of family violence in custody proceedings was to be indicative of a risk ‘to … children in later years that … could cause them harm’. The wife brought an appeal against orders made by the trial judge that the children of the relationship reside with their father.
Issue/s:
Whether the trial judge erred in his findings regarding domestic violence?
Decision/Reasoning: The appeal was allowed.
Counsel for the wife submitted that the trial judge addressed the questions of the husband’s domestic violence ‘in almost a passing manner’, despite the presence of overwhelming evidence from the wife that she was the victim of consistent and frequent violence and abuse. It was held that “in cases such as this, where a case of sustained and severe domestic violence by one party is advanced by the other, the court is obliged to give a clear indication whether it accepts or rejects that case and, in any event, to explain why it has reached that conclusion” (see [333]).
In addition it was held that the trial judge’s conclusion that the responsibility for violence between the parties was fairly evenly shared was not available on the evidence.
Other aspects of His Honour’s treatment of domestic violence were also in issue. First, His Honour’s perception of the relevance of violence to the overall welfare of the children was inadequate. The trial judge failed to consider the significant risk of such violence to the children’s emotional development such as “insecurity, fear, unhappiness, anxiety and hyper vigilance”: Patsalou and Patsalou [1994] FamCA 118 and JG and BG (1994) FLC 92-515 (see [334]). Second, Lindenmayer J also strongly disapproved of the trial judge’s finding that the husband’s violence towards the wife was a product of the marital relationship rather than of the husband’s personality.
Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal (1997) FLC 92-757; [1997] FamCA 27 (10 June 1997) – Family Court of Australia (Full Court)
‘Contributions’ – ‘Property proceedings’ – ‘Relevance of domestic violence’ – ‘Section 79’ – ‘Significantly more arduous’
Proceedings: Property settlement.
Facts: The parties cohabited for approximately five years before separating. The husband was very wealthy and the wife had far more modest means. The property pool was nearly $9 million. There were no children of the marriage. In 1994, the wife filed a property application under s 79 of the Family Law Act. The husband filed a cross application. The wife subsequently filed an amended application which included a claim under the cross-vesting legislation that the husband pay her damages for assault and battery. The husband denied the allegations of assault and restated his position regarding the property claim. The trial judge accepted that a number of assaults had occurred and awarded damages, but found that the husband's conduct had not affected the wife's contributions to allow an adjustment in relation to s 79(4).
Issue/s: The wife did not challenge the trial judge’s finding that the husband's conduct had not affected her contributions. Consequently, the Full Court's comments on the relevance of domestic violence in claims under s79 of the Family Law Act were made in obiter.
Decision/Reasoning: The appeal was dismissed but the Full Court took the opportunity to clarify the relevance of violence in s79 property adjustments. The Full Court said that earlier authorities on s 79 precluding evidence of domestic violence were no longer binding, acknowledging that the ‘pervasiveness and destructiveness of domestic violence’ was now better recognized by the Australian community and courts.
The Full Court cautioned that s 79 of the Act is not a source of ‘social engineering’ or to be used as ‘a means of evening up’ the financial positions of the parties. They held:
‘Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion’.
The Court also referred to this principle as including ‘exceptional cases’ and noted, ‘[i]t is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party’.
(See also subsequent interpretation in S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003), Baranski & Baranski & Anor [2010] FMCAfam 918 (1 September 2010) and Damiani & Damiani [2012] FamCA 535 (9 July 2012).)
Re Andrew (1996) FLC 92-692; [1996] FamCA 43 (23 May 1996) – Family Court of Australia (Full Court)
‘Contact proceedings’ – ‘Family violence’ – ‘Fear of violence’ – ‘Supervised access order’ – ‘Unacceptable risk to child’ – ‘Weight to be given to impact of access on custodial parent’
Proceedings: Appeal against supervised access orders.
Facts: The parties separated. Satisfactory access arrangements were in place for 3.5 years. However, the relationship between the parties deteriorated and the husband assaulted the wife. The wife held a genuine belief that the husband had tried to kill her and the child on this occasion and subsequently denied the husband access to the child. The husband filed an application for unsupervised access.
The trial judge found that each parent alone could provide adequately for the needs of the child. However, the wife’s fears had become even more entrenched over time and these fears were a major impediment to access, because they were genuine even if they may not be founded in fact. Her capacity to provide care to the child would be impaired and cause detriment to the child if the husband was given unsupervised access. The trial judge made orders for supervised access.
Issue/s: The trial judge gave too much weight to the mother’s attitude and not enough weight to the benefits to the child of unsupervised contact with the father.
Reasoning/decision: The Full Court dismissed the appeal. After citing extensively from past authorities, it was concluded that the finding that the wife’s genuine fear of the husband would significantly affect her ability to provide adequately for the needs of the child as custodial parent despite the benefits to the child from contact with the father was open to the trial judge.
In the Matter Of: N Appellant/Wife and S Respondent/Husband and the Separate Representative [1995] FamCA 139 (20 December 1995); (1996) FLC 92-655; (1995) 19 Fam LR 837. – Family Court of Australia (Full Court)
‘Assessment of unacceptable risk’ – ‘Unacceptable risk’
Proceedings: Appeal against custody orders.
Facts: Not a family violence case, but it discusses principles in determining unacceptable risk in the context of sexual abuse allegations. In custody proceedings, the mother alleged that the father sexually abused their child and sought to have access by the husband to the child prevented. The trial judge was not satisfied on the civil standard of proof that the sexual abuse had occurred. However, he did not conclude that the abuse certainly did not happen. The mother was steadfast in her belief that the child had been abused by the father. The trial judge did not find the father unfit to have custody or access to the child by reason of sexual abuse or unacceptable risk of abuse, however, mitigated against the concerns and effect on the mother by making interim supervised contact orders.
Issue/s: Whether the trial judge erred in finding that the father was not an unacceptable risk?
Reasoning/Decision: The appeal was dismissed by majority. The Full Court held that the trial judge should not have made interim custody orders and failed to take into consideration the effect this would have not only on the child but also on the mother’s ability and capability to parent effectively. However, as the interim custody order was not challenged the Full Court did not set it aside. As regards to no finding of unacceptable risk, on the evidence, this was open to the trial judge.
Patsalou and Patsalou (1995) FLC 92-580; [1994] FamCA 118 (27 October 1994) – Family Court of Australia (Full Court)
‘Child welfare’ – ‘Custody proceeding’ – ‘Evidence’ – ‘Impact of family violence on children’ – ‘Independent research by judge’ – ‘Relevance of family violence’ – ‘Social science research’
Appeal type: Appeal against custody orders.
Facts: Allegations of family violence were made in custody proceedings. The trial judge accepted the wife’s evidence that prior to separation the husband had been hitting her on a regular basis, in front of the children on a number of occasions. Her Honour stated that the denigration of one parent by the other and the perpetuation of violence by that parent against the other is of importance when assessing where the interests of the children lie and what future arrangements might best advance their welfare. Her Honour also noted a number of articles on the effect upon children of inter-spousal violence including that such effects may be profound and long-lasting. The trial judge concluded that the children’s welfare would be best promoted by remaining in the custody of the wife.
Issue/s: Some of the grounds of appeal were –
•
Whether the manner in which the trial judge dealt with the violence and denigration by the husband of the wife was inappropriate and contrary to law.
•
Whether the trial judge erred in referring to the body of research as the articles cited did not constitute evidence before her and the parties were not invited to make submissions with respect to them.
Reasoning/Decision: The Full Court upheld the trial Judge's finding that allegations of domestic violence were relevant to custody proceedings and found that the reference by the trial judge to published social science literature about the impact of family violence on children was permissible as the published research was referred to as background information rather than evidence.
Evidence of family violence was held to be relevant in custody matters, to the extent that it assisted the court to determine what is in the best interests of the children, as its impact could be ‘profound and long-lasting’. The Full Court approved the comments by the trial judge that denigration and assault cause ‘considerable unnecessary strain’ to the victim and ‘may erode the confidence, dignity and self-esteem of the children’s other parent’. Baker, Kay and Tolcon JJ agreed with the trial judge that such conduct modelled inappropriate behaviour for children and could ‘impinge upon the quality of parenting able to be offered to the children’ and ‘reflects poorly upon the assailant’s capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress’.
Between: R Appellant/Husband and C Respondent/Wife [1993] FamCA 62 (25 June 1993); Russell & Close (Unreported, Full Court of the Family Court of Australia, Fogarty, Baker & Lindenmayer JJ, 25 June 1993) – Family Court of Australia (Full Court)
‘Allegations of sexual abuse’ – ‘Best interests of the child’ – ‘Interpreter’ – ‘Meaningful relationship’ – ‘Parenting proceedings’ – ‘Separate representative/independent children’s representative’ – ‘Unacceptable risk to child’ – ‘Weight to be given to impact of access on custodial parent’
Appeal type: Appeal against access orders.
Facts: Post separation, an access arrangement for the two children of the relationship was established. The relationship between the parties deteriorated and the mother refused to allow the husband access to the children. One child was found to have been sexually abused, but it was not possible to identify the perpetrator. The mother believed that the father was the perpetrator, however the trial judge was not satisfied that the father had sexually abused the child. The trial judge made orders giving the father unsupervised daytime access to the children to reduce the risk of the mother from making unfounded allegations in the future. The father appealed against these orders. The mother did not challenge the orders, but cross-appealed in relation to findings of fact made by the trial judge.
Issue/s:
•
Whether it was open to the trial judge to make orders giving the husband unsupervised daytime access, where the court was not satisfied that the father had sexually abused the child.
Decision/Reasoning: The appeal was allowed in part. Amendments were made to the trial judge’s orders, clarifying the father’s access period and altering the proposed changeover location. The mother’s appeal against factual findings made by the trial judge and the father’s appeal against daytime access were dismissed.
The Full Court found that the relevant considerations when making access orders in cases involving sexual abuse of children were whether sexual abuse had occurred, whether the perpetrator could be identified, the potential risk of harm to the child from sexual abuse, the potential benefit to the child from parental access and the impact of the custodial parent’s beliefs on the welfare of the children. The Full Court said that the custodial parent’s beliefs regarding the child’s exposure to harm are relevant to the extent that they are likely to adversely affect that parent’s parenting ability and that a subjective test is used to assess the custodial parent’s beliefs.
The Full Court was satisfied that it was open to the trial judge to draw inferences regarding the likely future conduct of the mother. As the trial judge had found the mother genuinely believed the child had been sexually abused, that it was highly likely the mother would make further allegations of sexual abuse against the father if unsupervised overnight access was granted and that this risk did not apply to unsupervised daytime access, it was at the trial judge’s discretion to give the husband unsupervised daytime access.
Family Court of Australia
Bennett & Bennett [2021] FamCA 182 (21 April 2021) – Family Court of Australia
‘Abuse of children’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Family violence evidence’ – ‘Kennon principles’ – ‘Parenting proceedings’ – ‘Property proceedings’ – ‘Sexual abuse’
Proceedings: Parenting and property proceedings.
Facts: The mother and father separated in 2016. The father was found guilty of assault and aggravated indecent assault in relation to their children. He was also found guilty of multiple assault and intimidation charges against the wife and children.
Issues:
1.
Application to change the children’s surnames, issue of passports and overseas travel, and the father’s access to school information.
2.
Division of net available asset pool.
Decision and reasoning: Parenting and property orders made.
Parenting orders: It was in the children’s best interests that they eradicate their father’s name from their names, given the damage and violence he inflicted on them, noting that “[t]he children need to close this chapter in their lives and this is one practical way of assisting them to do so” (at [124]).
Property orders: The decision of Kennon v Kennon was highly relevant to the facts: “where there is a course of violent conduct during the marriage which is demonstrated to have had a significant impact upon that party’s contribution to the marriage, this is a factor which the trial Judge is entitled to take into account in assessing the parties’ respective contributions under section 79 of the Act.” As per Baker J in Kennon at [84]:
“The incidence of domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions…for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.”
The wife’s entitlement was to 95% of the property comprising of the following:
•
The husband’s violence and conduct towards the children and wife made her role as a parent and homemaker far more arduous than it needed to be. Her entitlement for past contributions was assessed at 70% being direct financial contributions, contributions as parent and homemaker, and solely since separation in the most difficult of circumstances (given the husband’s behaviour and offending).
•
In relation to her future needs, her contribution to the children post-separation would continue to be overwhelming. Moreover, “the husband’s conduct towards the children…made her parenting role more arduous as the children have suffered psychologically from their father’s violence.” She would be solely financially, emotionally and psychologically supporting the children for the next 6 years. An adjustment of 25%.
The husband was entitled to 20% of the pool, reducing the wife’s entitlement to 80%.
Pollard and Nordberg [2019] FamCA 365 (7 June 2019) – Family Court of Australia
‘Alleged child victims’ – ‘Appeal against recovery order’ – ‘Best interests of the child’ – ‘History of domestic and family violence’ – ‘Interim parenting orders’
Proceedings: Appeal against grant of recovery order.
Facts: The father had sought, and been granted, a recovery order for the return of the children following the mother’s unilateral removal of the children from the family home in Victoria. She took the children with her to her mother’s home in New South Wales. The mother alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother.
Issue: Whether the recovery order ought to be revoked pending a final order hearing.
Judgment: Wilson J upheld the mother’s appeal against the father’s recovery order on the basis of family violence allegations against him, despite no expert report being admitted:
[155]If I dismiss the mother’s appeal, the recovery order will operate in such a way that the children are physically, and if necessary, forcibly, returned by police to the father in Victoria. If the allegations of family violence are proved at trial, that means I will order the children to be returned to a violent environment. It must not be overlooked that the mother has alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother. I refuse to make an interim order returning the children to the father in circumstances where the father may at trial be found to have engaged in family violence. In my judgment this court must act protectively towards the children and remove them from any risk associated with family violence. To do so is consistent with the imperative recorded in s 60CC(2A).
Behn & Ziomek [2019] FamCA 298 (10 May 2019) – Family Court of Australia
‘Assault child’ – ‘Best interests of child’ – ‘Coercive control’ – ‘Family law’ – ‘Financial abuse’ – ‘Protection order’ – ‘Relocation’ – ‘Sexual abuse’ – ‘Supervised contact’ – ‘Systems abuse’ – ‘Unacceptable risk’
Matter: Application for children’s orders for relocation, mother to have sole parental responsibility, supervised contact
Facts: The German national mother wished to return the Germany with the child. The court considered whether the child faced an unacceptable risk in spending time with the father.
Issue: Application for leave to appeal.
Decision and reasoning: Relocation allowed; mother to have sole parental responsibility.
McClelland DCJ accepted that the child faced an unacceptable risk spending time with the father because (1) he had an extensive history of coercive and controlling behaviour towards the mother, and (2) his controlling nature manifest itself in physical violence towards the child.
[200] His Honour accepted evidence that the father had a history of engaging in controlling and coercive conduct in respect to the mother and that that controlling nature had manifested in physical violence to the child. Matters found to constitute controlling and coercive conduct during the relationship included setting up a camera in their home, telling the mother an investigator was following her while she was overseas, questioning her presence at her brother’s wedding, frequent accusations of infidelity, inspecting her used underwear and telling her it tested positive for sperm; attending her medical appointments and attempting to sexually belittle mother by asking questions of and making comments alleging her infidelity to multiple doctors, sending her a divorce kit in response to an argument about money and financially controlling her by draining her bank account and using her credit card.
His Honour accepted that the father’s post-separation manner of conduct of the proceedings and behaviour questioning medical treatment of the child amounted to coercive and controlling behaviour, as did calling the police for seven times for unnecessary police welfare checks. His Honour also accepted that the father’s assault of the child was child abuse.
Frangoulis and Xennon [2019] FamCA 103 (28 February 2019) – Family Court of Australia
‘Anger management’ – ‘Application in a case’ – ‘Disputed compliance with therapy order’ – ‘Family law’ – ‘Family violence’ – ‘Interim parenting orders’ – ‘Substantially supervised contact’ – ‘Therapist's expertise disputed’
Matter: Father’s application in a case for reinstatement of contact with the three children X, Y and Z, additional make up contact and that the child X engage in re-unification therapy with the father with a therapist to be agreed or as nominated by the Independent Children’s Lawyer.
Facts: The mother alleged serious family violence against the father. A previous interim order required the father to engage with either Mr B or another therapist nominated by the Independent Children’s Lawyer (“ICL”). The parties were in dispute as to whether the father had complied, the mother disputing the professional expertise of the father’s chosen therapist, who was neither Mr B nor nominated by the ICL. The father contended the ICL approved the father’s proposal to undertake the therapy with Mr F.
Earlier orders provided for the father to have contact with the children supervised by Mr and Ms C in the first week on Saturday from 2:00pm until 5:00pm and in the second week on Sunday from 2:00pm until 5:00pm save and except that the father’s time with X is subject to her wishes. The mother stopped contact pursuant to that order alleging he had spent time with the children without supervision. Berman J had previously held that the father had contravened the supervision order.
The mother referred to a report of Mr B dated 28 August 2017 which observed:
“[the father] was not open to consideration of any difficulties with reactivity or emotional regulation. He was not open to consider any role that he might play in the conflict with [the mother] or any contribution to [X]’s difficulties or possible dilemmas that might arise for the other children. I have decided to terminate contact with [the father] after 2 visits, rather that continue for 6 consultations as had been initially ordered. I did not feel that further contact would enable any helpful resolution to this matter and was concerned that continued discussion might only serve to further entrench a fixed and limited position.” [17]
The mother unequivocally stated she would reinstate the father’s contact once he had complied with the therapy requirement. Berman J expressed surprise that the parties had been unable to negotiate a resolution to the issues in the application.
Decision: Inter alia, Berman J ordered:
1.
That the father will attend upon Mr F for a further two (2) sessions and at the conclusion of which Mr F will prepare a report directed to the following matters:
(a)
A summary of his expertise, experience or skillset in respect of family violence and anger management;
(b)
A report directed to the father’s engagement with therapy and focussing on anger management and family violence;
2.
That to assist with the therapeutic intervention by Mr F, the father will provide to him the following:
(a)
The report of Mr B;
(b)
The report of Ms D;
(c)
The judgments of 27 July 2018 and 19 November 2018.
3.
That upon the expiration of twenty one (21) days from the provision of the report by Mr F, indicating that the father has successfully engaged with counselling and therapy directed to family violence and anger management, the father’s time with the children will be reinstated pursuant to paragraph 1 of orders made 4 August 2017, with further amendment that his time with the children will only require the substantial presence of either Mr or Ms C.
Berman J considered the father’s application for reunification therapy with his child:
[49] … For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.
[50] The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.
[51] A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.
Farina & Lofts and Ors [2019] FamCA 27 (23 January 2019) – Family Court of Australia
‘Damaging property’ – ‘Family violence evidence’ – ‘Kennon principles’ – ‘Physical violence and harm’
Case type: Interim ruling.
Facts: The applicant and first respondent were in a de facto relationship for 14 years and have two children. They agreed that their respective contributions during the relationship (apart from the Kennon argument) should be regarded as equal ([8]-[10]). The first respondent alleged that the applicant’s conduct amounted to family violence, occurring during and subsequent to their relationship. Her evidence of such violence included a history of protection orders made against the applicant; allegations of physical, verbal, psychological, financial, emotional and mental abuse; allegations of property damage and animal cruelty; and allegations of exposing the children to family violence ([13]).
Issue: The applicant sought a ruling on whether or not family violence evidence relied upon by the first respondent sufficiently met the requirements of the Kennon principles and resulted in an ‘additional adjustment’ to the first respondent.
Held: Carew J ruled that the first respondent’s evidence was insufficient to establish that the Court should make an adjustment on the basis of the Kennon principles. Her Honour stated that ‘[w]hile it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings, the difficulty often faced by a trial judge is the inadequacy of evidence to support any relevant finding and adjustment’. Even if there is no direct evidence as to how the conduct affected the victim’s ability to make his or her contributions, the impact may be inferred provided that the evidence clearly supports it. A person’s conduct will be relevant if it has had a ‘significant adverse’ or ‘discernible’ impact on the contributions of another ([6]).
The applicant submitted that the evidence failed to demonstrate a discernible or significant adverse impact on the first respondent’s contributions ([15]). In relation to direct and indirect financial contributions, the first respondent deposed to finding it difficult to contribute financially because of the domestic violence inflicted upon her by the applicant. In relation to non-financial contributions for the welfare of the family, she gave evidence that the applicant also made it difficult for her to contribute as a ‘mother’ ([17]). The applicant further submitted that the first respondent’s evidence to occasionally feeling nervous or humiliated represented a personal impact on the first respondent, but fell short of establishing that those feelings had any discernible or significant impact on her ability to contribute ([18]).
Carew J noted that the need to establish ‘fault’ has been replaced by a ‘no-fault’ system in order to obtain a divorce or other relief, such as a property settlement or spouse maintenance. The repeal of the ‘fault’ based system avoids the humiliation and expense associated with presenting the necessary evidence ([22]). Nevertheless, according to the Kennon principles, there are circumstances where conduct will be relevant to the determination of a property settlement application ([23]).
Her Honour accepted the applicant’s submission that the evidence relied upon by the first respondent was insufficient to establish the impact of the conduct on her ability to make contributions or the quantification of that impact on her contributions, either expressly or impliedly ([24]).
Garrod & Davenort [2018] FamCA 825 (12 October 2018) – Family Court of Australia
‘Coercive control’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘History of domestic and family violence’ – ‘Physical violence’ – ‘Systems abuse’
Issue: Parental responsibility.
Facts: The mother alleged that the child was repeatedly struck by the father causing bruising and that the father engaged in intimidating conduct towards her and the child, often following drug use by the father. The father was subject to several intervention orders, none of which successfully prevented his violent and intimidatory conduct. One incident of violence followed the mother’s discovery the father had spent money set aside for payment of bills. The father was persistently in arrears of his child support obligations and viewed child support as a benefit to the mother.
The mother led evidence that the father’s conduct towards her and the child made her highly anxious. The child allegedly made disclosures to the mother in July 2014 after spending time with the father that ‘daddy hit me’ and ‘he was just angry and he hit me’. The following day, the mother alleged a bruise appeared on the child’s hip. [344]
Decision and Reasoning: The mother have sole parental responsibility for the child, the father have no contact with the child and there be a moratorium on the father seeking further parenting orders for a period of two years. The father’s conduct towards the mother and the child had made the mother highly anxious.
It was held that that ‘the father’s behaviour ha[d] been manipulative and the violence, which has been physical violence as well as coercive controlling violence, insidious. It was often perpetrated in the presence of the child.’ [5]
Despite the father’s recent admissions regarding his conduct, the Court was unconvinced that he does not pose an unacceptable risk to the child’s safety and wellbeing.[5]
The Court considered the definition of ‘coercive controlling violence’. It was held that: ‘Coercive controlling violence is an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance in them. Its focus is on control, and does not always involve physical harm.’ [223]
Xuarez & Vitela (No 3) [2017] FamCA 1108 (22 December 2017) – Family Court of Australia
‘Abuse of process’ – ‘Child-related proceedings’ – ‘Systems abuse’ – ‘Vexatious proceedings’
Case type: Application by both parties for a vexatious proceedings order.
Facts: Mr Xuarez and Ms Vitela (both pseudonyms) had been involved in court proceedings in relation to parenting orders for over 10 years ([7]-[21]). The father had filed 19 separate Applications in a Case between 11 April 2012 and 16 November 2017 ([16]), which were all dismissed, and Notices of Appeal in relation to the dismissals ([17]). Both the mother and the father filed applications for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth).
Issues: Whether the Court should make the vexatious proceedings order against the mother or the father or both.
Decision and Reasoning: The application made by the mother was granted, while the application by the father was dismissed. An order was made prohibiting Mr Xuarez from instituting proceedings against Ms Vitela or any of her legal representatives and dismissing all extant applications ([45]).
Justice Carew at [29] cites Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 to set out 11 principles to consider when making an order in relation to vexatious litigants. Applying the principles to the father’s conduct, Carew J highlighted the facts that most of the applications were instituted without reasonable grounds, the father sought orders that the Court did not have jurisdiction to make, and the repetitive nature of the applications amounted to an abuse of process ([34]). It was noteworthy that in 2010, the father was declared a vexatious litigant in another court, in relation to proceedings where the father stalked the mother’s former legal representative ([37]). These facts justified the order being made against the father.
Janssen & Janssen [2016] FamCA 345 (1 February 2016) – Family Court of Australia
‘Discretion to admit the audio recordings and transcripts into evidence’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Recordings made without consent’ – ‘Serious allegations of family violence’ – ‘Whether recordings were reasonably necessary to protect lawful interests’
Proceedings: Application relating to the admissibility of evidence and application as to whether the rules of evidence ought to apply in a Family Court hearing.
Facts: On the first day of a four day hearing, counsel for the applicant (the mother) sought leave to tender voice recordings and transcripts that had been made without the knowledge of the father. Under s 7 of the Surveillance Devices Act 2007 (NSW), it is unlawful to record private conversations without the consent of the parties to that conversation unless the recording of the conversation falls within one of the exceptions in s 7(2) and (3).
Issue/s:
•
Whether both the voice recordings and transcripts were admissible.
•
Whether there were ‘exceptional circumstances’ as per s 69ZT(3) requiring the proceedings to be determined according to the rules of evidence set out in the Evidence Act and not according to the procedures set out in s 69ZT(1) and (2) of the Family Law Act 1975 (Cth) (‘the FLA’).
Reasoning/Decision: First, McClelland J held that both the voice recordings and the transcripts were admitted in evidence under s 7(3) of the Surveillance Devices Act 2007 (NSW) (the recordings were reasonably necessary to protect the applicant’s lawful interests) and, in the alternative, under s 138 of the Evidence Act (the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained improperly).
McClelland J noted the ‘floodgates’ caution from senior counsel for the father i.e. that there was a danger of parties to a marital relationship experiencing difficulties surreptitiously recording their partner. However, in this regard, His Honour stated that his decision was very much one based on the facts of the case, including the allegations that the father had maintained a charming public face but had engaged in conduct within the family home that was alleged to have constituted family violence in terms of the provisions of s 4AB of the FLA. His Honour also had regard to the potential difficulty of obtaining evidence of family violence when it occurs behind closed doors without any witnesses present other than the perpetrator and victim. Further, His Honour noted that the recordings and transcript would be directly relevant to the issue of credibility as to whether family violence occurred in the proceedings (see [6]-[14]).
Notwithstanding the findings above, senior counsel for the father submitted that the Court ought to exclude the voice recordings (permitting the inclusion of the typed transcript) because the danger of the evidence being unfairly prejudicial to the father outweighed its probative value (s 135 Evidence Act). This was because the mother had knowledge and control of the recording and the circumstances in which the conversation occurred and was recorded. McClellan J dismissed this argument and held the voice recordings were admissible. This could be a matter for cross-examination by the father: Huffman & Gorman (No. 2). Further, His Honour noted submissions from counsel for the applicant and counsel for the Independent Children’s Lawyer that an important aspect of the evidence contained in the tapes was not simply what was said but how it was said. This was relevant to whether the father’s behaviour could be modelled or mimicked by the children and whether the parenting abilities of the primary carer had been compromised as a result of the content and tone of the communication (s 69ZN of the FLA) (see [15]-[23]).
Second, McClelland J held that the rules of evidence were to be applied in respect to the issues of the events on 10 September 2013 (these events were the subject of criminal proceedings) and to the issue as to whether the father made threats to the children or to the mother in respect to the children (s 69ZT(3)). For the remainder of the issues, the rules of evidence would not apply (s 69ZT(1) and (2)) and His Honour would therefore have the discretion to consider the probative value of such evidence. His Honour stated, ‘evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in appropriate context and given appropriate weight, depending upon who was expressing the opinion and on what basis, and the establishment of the necessary background facts’ (see [24]-[34]).
Sawyer & Sawyer [2015] FamCA 982 (10 November 2015) – Family Court of Australia
‘Application to discharge the icl’ – ‘Independent children's lawyer’ – ‘Legal practitioners’ – ‘Negligence or bias’
Proceedings: Numerous applications including an application to discharge the ICL.
Facts: The mother and the father separated in 2009.There were three children of their relationship. In 2012, a final parenting order was made with the consent of the parties and the Independent Children’s Lawyer (ICL). There was continued conflict between the parents. Numerous applications were considered by the court in this case in particular, an application brought by the father to discharge the ICL.
Issues: Whether the ICL had been negligent and demonstrated bias towards the mother?
Reasoning/Decision: The application was dismissed. Forest J referred to his previous discussion (in Dean & Susskind [2012] FamCA 897 at [19]-[28]) of the principles applicable to such an application:
‘…
The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.[20]
I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL. [21]
…
It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal. [26]
Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case’. [27]
The father submitted a number of facts as evidence of bias. First, the ICL sought the appointment of a new, female report writer (Ms C). The father argued that the ICL failed to give him an opportunity to argue against Ms C’s appointment and, by retaining Ms C, evidenced ‘significant gender bias’ by removing ‘the only male person within our entire court process’. The fact that the ICL disagreed with the father on the issue of appointing a new family report writer, as she was entitled to do, did not prove that the ICL failed to adequately consider the father’s argument. Further, the selection of a report writer alone, who happened to be female, did not demonstrate or prove gender bias (see [58]-[63]).
Second, the father argued that the ICL demonstrated negligence or bias against him because she would not give him a copy of her instructions to the report writer. Forrest J noted that there is nothing in the Federal Circuit Court Rules or the Family Court Rules that obliges an ICL to provide copies of her instructions to an expert retained by her to each of the parents. Further, the father did not actually request the ICL to provide him with a copy of her instructions; he instead asked whether he would receive a copy of the instructions to which the ICL replied ‘you don’t see the letter of instruction’. In these circumstances, the ICL had not demonstrated negligence or bias that warranted her disqualification (see [65]-[70]).
Third, on the day of the interviews for the report, the father argued that the ICL demonstrated bias in directing the waiting arrangements in her office for the parents and children. Forrest J held that, at the interim stage, where the evidence invited a number of possible findings that could not be made without cross-examination of deponents, he was not in a position to say that the ICL had acted in a way that warranted her immediate discharge (see [71]-[78]).
Finally, the father asserted that the ICL was incompetent as well as negligent and biased against him. Forrest J was not persuaded by the father’s evidence and held that (see [79]-[81]):
‘It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required’.
Theophane & Hunt [2014] FamCA 1038 (24 November 2014) – Family Court of Australia
‘Family reports’ – ‘Impact of loss of relationship with parent’ – ‘Independent children’s lawyer’ – ‘No contact orders’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Sexual and reproductive abuse’ – ‘Statutory framework’ – ‘Systems abuse’ – ‘Vexatious proceedings’
Proceedings: Application for final parenting orders.
Facts: The parties had one child together. During the relationship, the mother alleged that the father often forced her to have non-consensual sex with him. The parties separated and the mother obtained a DVO against the father. The mother initiated proceedings seeking parenting orders and over the next four years a number of parenting orders were made and amended. However, after an incident at handover, the wife formed the belief the husband would abduct or remove the child from her care, and she attacked the father whilst in a dissociative state. She was convicted of unlawful wounding and sentenced to 18 months imprisonment, and immediately released on probation.
The applicant father sought orders for sole parent responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. He argued that the mother presented an unacceptable risk of sexual, physical and emotional harm to the child (the mother suffered sexual abuse as a child). At the time of these proceedings, the father was committed to stand trial on six charges of rape of the mother and one charge of grievous bodily harm against the mother.
The mother sought orders, supported by the Independent Children’s Lawyer, that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication with the father. She later amended her orders and sought to include provision for a card or letter for her birthday and for Christmas. The mother sought no contact as she believed any continued interaction between her and the father in relation to the child, was likely to adversely affect her capacity to parent the child.
Issue/s: What parenting order was in the best interests of the child?
Reasoning/Decision: Orders were made providing for the mother to have sole parental responsibility for the child and sole custody of the child, and for the father’s access and communication with the child to be limited to postal correspondence twice a year until the child turned eighteen. His Honour also made a vexatious litigant order against the father, restraining him from bringing further proceedings without leave of the court.
In relation to making a no contact order, his Honour stated that it is a serious matter that a child neither spend time with nor communicate with a parent. Accordingly, such orders ought to be restricted to cases where the outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Three scenarios were considered in which ‘no contact’ orders had been made in the past. First, these orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child. Second, ‘no contact’ orders have been made where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed (on the basis of protecting the child from the consequences of that parent’s belief): Re Andrew. Finally, this approach was taken one step further in Sedgley & Sedgley where the Court held that while the welfare of the child may require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation (see [55]-[58]).
The best interest considerations in s 60CC let the court to determine the child live with her mother. His Honour accepted that by time the child turned 12 she would likely come into conflict with the father and was at real risk of harm from his coercive, controlling, dominating and self-serving personality traits (see [177]-[178]). Further, the father was to have no contact with the child except for a card/letter at Christmas and on the child’s birthday. It was found that the father deliberately calculated his interaction with the mother with a view to destabilising her mental health conditions, and even the smallest opportunity for debate or conflict with the mother would be seized upon by the father. If the mother was required to continue to interact with the father in any form of co-parenting, there was a substantial risk that she will either attempt to kill herself, attempt to kill the father, or both.
It was ultimately decided that the prospect and magnitude of the risk of harm to the child if her mother was required to maintain contact with the father far outweighed any benefit the child would obtain by a continuation of any time or communication with her father. It was held that the best interests of the child lay with making a no contact order.
In relation to family violence, his Honour was satisfied that on occasion the father had engaged in non-consensual sexual intercourse with the mother. However, it was both unnecessary and undesirable to make a finding regarding the father’s conduct in relation to the criminal offence of rape (see [168]-[169]). However, the father’s controlling and domineering behaviour was considered and had bearing on the court’s decision for no contact (see [170]-[171]).
His Honour considered each of the many proceedings instituted by and conducted by the father and was “satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously.” He was “therefore satisfied that the father has frequently instituted or conducted vexatious proceedings.”[243]
At [246] his Honour stated:
I am satisfied that many of the applications that the father has brought or prosecuted in relation to the mother have been vexatious, although I accept that some, on occasion, have had merit. Some have been vexatious in the sense that they were intended to harass and intimidate the mother into either a further destabilisation and perhaps dissociation, or to attempt to otherwise coerce her to his will. Some were vexatious as being without reasonable foundation. Some may have been both.
And at [248]:
I accept that it is a grave matter to deny a parent the opportunity to litigate in relation to their child. However upon analysis, my order does not prevent the father doing so per se: if there is a legitimate basis for further litigation, sufficient to warrant a grant of leave, then he may do so. However he cannot be trusted with the unfettered right to issue proceedings against the mother in relation to the child, because he will abuse it. For that reason, any application for leave should be, in the first instance made ex parte: s 102QE(4).
Note: this case was confirmed on appeal, see Theophane & Hunt and Anor [2016] FamCAFC 87.
Cannon & Acres [2014] FamCA 104 (6 March 2014) – Family Court of Australia
‘Family violence’ – ‘Parenting orders’ – ‘Systems abuse’ – ‘Vexatious litigant’ – ‘Views of the child’
Proceedings: Parenting orders and vexatious proceedings order.
Facts: Over many years, the mother and the 12 year old child experienced harassment, physical violence and stalking behaviour by the father. The father had little or no insight into the impact of his behaviour on the child. This was the third final parenting hearing. The current proceedings were brought about by the father in circumstances where the application was doomed to fail. Seeing the profound impact of these fresh proceedings on her mother, the child resolved that she no longer wanted to see or communicate with her father. Benjamin J was satisfied that the views were her own.
Issue/s:
•
What parenting orders were in the best interests of the child?
•
Whether in the circumstances of this proceeding a vexatious proceedings order should be made and if so the nature and extent of that order.
Reasoning/Decision: In making parenting orders, Benjamin J noted that the presumption of equal shared parental responsibility in s 61DA of the Act did not apply because there were reasonable grounds to believe here that the father had perpetrated family violence. This family violence included the father’s entrenched pattern of behaviour (referred to by a psychologist), the father’s stalking behaviour, the verbal abuse, harassment and the assaults by him on the child. Further, shared parental responsibility could not effectively operate given the views of the child, the approach adopted by the father and the impact upon the mother. Accordingly, Benjamin J made an order that the mother have sole parental responsibility for the child (see [379]-[384]). Benjamin J also made an order that the child spend no time with the father and have no communication with the father (see [387]-[404]).
Benjamin J made a vexatious proceedings order prohibiting the father from instituting further proceedings without leave. This order was made under s 102QB(2) of the Family Law Act 1975 (Cth). At [420], His Honour noted that the fundamental differences between the old section (s118) and s 102QB were: (1) the test was no longer a court having frivolous or vexatious proceedings before it but rather whether or not there was a history of a person having frequently instituted or conducted vexatious proceedings; and (2) Vexatious proceedings were now defined by statute in s 102Q(1).
To make an order under s 102QB(2), Benjamin J noted at [438] that a two part threshold test needs to be met, namely:
•
That there have been vexatious proceedings instituted or conducted in Australian courts or tribunals; and
•
That the person, in this case the father, has frequently instituted or conducted such proceedings.
Applying this test, Benjamin J proceeded in three parts. First, His Honour determined a number of proceedings initiated by the father constituted vexatious proceedings on the facts (see [441]-[481]). Second, His Honour held that the proceedings amounted to the father ‘frequently’ instituting and conducting vexatious proceedings. In making this determination, Benjamin J noted that the test of ‘frequently’ was used as opposed ‘habitually and persistently’. The term ‘frequently’ is a relative term and is to be considered in the context of the facts of an individual case and, in this case, in the context of the litigation between these parties. This test was said to be satisfied on the facts (see [482]-[494]).
Finally, with the threshold being met, Benjamin J considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. His Honour noted that a vexatious proceedings order must be considered in the context where there is a need to balance the serious step of restricting a person from commencing proceedings against the need to protect the mother and the child from the constant impact of litigation. In the circumstances, a vexatious proceeding was made (see [495]-[540]).
Modlin & Anstead and Anor [2013] FamCA 955 (6 December 2013) – Family Court of Australia
‘Family reports’ – ‘No contact orders’ – ‘Parental capacity’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Self-represented litigants’ – ‘Single expert report’
Proceedings: Application for parenting orders.
Facts: The mother and the father, who both had compromised mental health: the mother diagnosed as Bipolar and the father also being previously diagnosed as Bipolar, had two children together. Both children had intellectual and developmental disabilities. The parties separated and reconciled several times before final separation, with the mother obtaining Apprehended Domestic Violence Orders (ADVO) on a number of occasions. The father breached one of these orders in February 2010 by breaking into the mother’s home and assaulting the mother. He was charged and spent time in a psychiatric facility. The mother formed a relationship with another man (‘the stepfather’). In 2011, one of the children went temporarily missing in a National Park under the care of the father, the father deliberately sent photographs of his penis to the mother, and one of the children told the mother that the father swore at her. Contact ceased between the father and the children and the mother received victim’s compensation in relation to domestic violence by the father. Proceedings were commenced in relation to the parenting of the children.
Issue/s: It was agreed that the mother and the stepfather would have parental responsibility for the children. However, some of the remaining issues were –
•
Whether the father should have shared parental responsibility or no responsibility for the children;
•
Whether or to what extent the father should spend time or communicate with the children.
Reasoning/Decision: Orders were made giving the mother and stepfather equal shared parental responsibility for the children, giving the father no parental responsibility, making provision for the children to live with the mother and stepfather and to have no contact with the father, restraining the father from approaching the children, their school and residence and the parents from discussing proceedings with or near the children.
The Court found that the s 61DA presumption of equal shared parental responsibility did not apply as the father engaged in family violence. Further, in relation to the children’s best interests, including consideration of the evidence about family violence, the Court determined that in any case the presumption would be rebutted on the evidence. It was held that any further contact between the father and the mother would destabilise the mother and prevent her from being able to adequately care for the children (see [197]-[205]). Additionally, on this basis, it was ordered that the father spend no time with either child (see [206]-[210]).
Loughnan J also made a number of orders restraining the father from communicating with the children or the mother or stepfather. These orders were necessary for the physical and mental protection of the mother, especially in light of the evidence of family violence. However, Loughnan J ordered that, if required, the father communicate with the step-father through a post office box and be notified if the family relocated from the region (see [217]-[232]).
Schieffer & Schieffer [2013] FamCA 168 (20 March 2013) – Family Court of Australia
‘Best interests of the child’ – ‘Children’ – ‘Inconsistency of parenting orders with existing family violence order made by state court’ – ‘Independent children’s lawyer’ – ‘Intersection of legal systems’ – ‘Living arrangements’ – ‘Parenting orders and impact on children’ – ‘Presumption of equal shared parental responsibility’ – ‘Protection orders’
Proceedings: Application for parenting orders.
Facts: The parties separated and made consensual arrangements for the care of their child. In June 2012, the father detained the child citing a belief that the child had been sexually abused by the mother’s partner. Subsequently the mother, having happened upon the child and the father’s partner, attempted to detain the child herself. This resulted in an Apprehended Violence Order (AVO) being made against the mother in favour of the father’s partner. It applied to the child and the father as well as they lived with Ms E.
The mother refuted the allegation of sexual abuse but her relationship with her partner had ended and the mother acceded to an order precluding any future contact between the child and her former partner. The father then contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.
Issue/s: What orders regarding the residence of the child and shared parental responsibility were in the best interests of the child?
Reasoning/Decision: The Court was persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistent with their mutual wish, the Independent Children’s Lawyer’s suggestion and the Family Consultant’s recommendation (see [95]-[100]). His Honour ordered that it was in the child’s best interests to live predominately with the mother. Although both parents were equally capable of meeting the child’s intellectual needs, he considered that the mother was better able to meet the child’s physical and emotional needs (see [106]). The child was to spend substantial and significant time with the father (see [105], [109]-[116]).
The parenting orders were inconsistent with the existing family violence order, as the AVO prohibited the mother from approaching and contacting the child or the father. Although the order made an exception for contact that occurred pursuant to the Act, it was only for the restricted purpose of ‘counselling, conciliation, or mediation’. It was noted that where the terms of the parenting and family violence order were inconsistent, the parenting order should take precedence to facilitate communication between the parents regarding the child and to ensure the child was exchanged for periods of contact (see [91]-[94]).
Damiani & Damiani [2012] FamCA 535 (9 July 2012) – Family Court of Australia
‘Court to consider family violence (60cc)’ – ‘Family violence in property proceedings’ – ‘Kennon adjustment’ – ‘People with mental illness’ – ‘Property proceedings’
Proceedings: Application for property orders.
Facts: The parties married and lived together for 19 months. They had one child. The husband contributed the bulk of the capital to the marriage and was on a far superior income. The wife had cared for the child since separation, nearly eight years prior. During the marriage, the husband perpetrated family violence against the wife on five occasions, over a period of 15 months. This caused the wife to suffer from post-traumatic stress disorder. The wife claimed the family violence made her contributions in the role of homemaker and parent significantly more arduous. The husband had financially supported the wife and the child during the period since separation.
Issue/s: Whether the court should make a Kennon style adjustment in the property settlement proceeding?
Reasoning/Decision: The Court referred to the Full Court in Kennon where the principles regarding family violence making contributions more arduous lie. The Full Court’s further refinement of the Kennon principles in Spagnardi & Spagnardi was also noted (see [138]-[144].
The Court discussed the approach regarding family violence in property proceedings as broken down into three steps: (1) Make findings of fact about one party’s conduct; (2) (If applicable) make findings about the physical or psychological effect of the conduct on the other party; and (3) Make findings of fact about the effect of the conduct of one party upon contributions made by the other party. It was also noted that it could not be assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. At trial, the wife had to establish to the judge’s satisfaction a connection between any proven family violence in the case and the contributions she made (see [145]).
On the facts, Watts J first concluded that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place were made significantly more arduous by the violence of the husband. Second, while His Honour also held that the wife’s role as parent post-separation was made significantly more arduous by the family violence during co-habitation, His Honour observed that it was more difficult to make such an assessment. The wife did experience apprehension and heightened emotion around dealing with the husband’s time with the child after the separation. However, the effect of violence on contributions was not constant over the previous eight years, with the wife’s post-traumatic stress disorder having significantly dissipated (see [174]-[179]). Accordingly, it was appropriate to increase the wife’s assessed contributions by 25 per cent for the duration of the relationship and by 5 per cent post separation to take account of the effect of the husband’s conduct on the mother (see [179].
Russell & Russell [2012] FamCA 99 (7 March 2012) – Family Court of Australia
‘Alleged breach of indian dowry law’ – ‘Dowry’ – ‘Family law’ – ‘Final parenting and child orders’ – ‘History of domestic and family violence’ – ‘Overseas relocation to india’ – ‘Parenting orders’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Rebuttal of presumption of equal shared parental responsibility’ – ‘Relocation’ – ‘Sole parental responsibility order’
Matter: Application for final parenting and child orders.
Proceedings: Final parenting and child orders hearing, including application for overseas relocation.
Facts: The mother had limited English skills, poor work prospects and no family support in Australia and there was a high level of conflict between the parties exacerbated by cultural issues. Both parties’ extended families remained in India. The mother alleged a history of family violence perpetrated by the father against the mother. The father stated that it was his intention to remain in Australia regardless of the final outcome. There were allegations that India’s dowry laws had been breached by the demand for and payment of dowry by the wife’s family to the husband’s family.
Issue: Was the presumption of shared parenting responsibility rebutted? Ought the mother be allowed to relocate to India with the child?
Judgment: Presumption of shared parenting responsibility rebutted, relocation allowed.
Young J found the presumption of shared parental responsibility was rebutted due to the conflict between the parties, their lack of communication and cultural issues.
The mother was permitted to relocate to India where she had family support available.
Kreet v Sampir [2011] FamCA 22 (18 January 2011); (2011) 252 FLR 234; (2011) 44 Fam LR 405 – Family Court of Australia
‘Forced marriage’ – ‘Marriage occurring in a country other than australia’ – ‘Nullity application’
Proceedings: Nullity application.
Facts: Ms Kreet (the wife), an Australian born woman, married Mr Sampir (the husband) on June 2009 in India. She travelled to India with her parents believing she was going to marry her Australian boyfriend, Mr U. Upon arrival, her parents confiscated her passport and was introduced to Mr Sampir. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped if she refused to marry Mr Sampir. Under duress, the wife married Mr Sampir and submitted his Australian visa application to the authorities. She returned to Australia, resumed her relationship with Mr U and withdraw her sponsorship of the respondent’s visa application. She obtained an indefinite Intervention Order against her father.
Issue/s: Whether the marriage was void?
Reasoning/Decision: Section 23B(1)(d) of the Marriage Act 1961 (Cth) states that a marriage is void if ‘the consent of either parties is not real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.
While the legislation does not define duress in the context of a marriage, Cronin J found that ‘there was no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes: In the Marriage of S (1980) FLC 90-820’ (see [39]).
Cronin J was satisfied that ‘the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress’ (see [43]).
Harridge & Harridge [2010] FamCA 445 (4 June 2010) – Family Court of Australia
‘Children’ – ‘Risk assessment’ – ‘Unacceptable risk’
Proceedings: Parenting orders.
Facts: The father of the two children subject to the parenting proceedings was convicted of three offences involving child pornography.
Issue/s: What parenting orders were in the best interests of the child?
Reasoning/Decision: Although this case did not relate to family violence, it contains observations relevant to risk assessment. The Court held that an allegation of potential risk of harm ought not to divert the court from the central task of assessing the best interests of the children. At [53] Murphy J quoted from an article by psychiatrist and barrister, Mahendra, who stated that risk assessment in any situation involves, in essence, asking the following questions:
•
What harmful outcome is potentially present in this situation?
•
What is the probability of this outcome coming about?
•
What risks are probable in this situation in the short, medium and long term?
•
What are the factors that could increase or decrease the risk that is probable?
•
What measures are available whose deployment could mitigate the risks that are probable?
Maluka & Maluka [2009] FamCA 647 (24 July 2009) – Family Court of Australia
‘Children’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Family law’ – ‘History of domestic and family violence’ – ‘Stalking’ – ‘Systems abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’
Matter: Application that mother have sole parental responsibility, the children live with the mother, the mother be permitted to change the children’s names and relocate without notice to the father, that the father be restrained from bringing applications in relation to the children for a period of time.
Facts: The mother alleged serious history of domestic and family violence throughout the history of the relationship, including “serious assaults of the mother, stalking, vandalism to property of the mother and her present partner, intimidation, threats of violence (including a history of death threats), verbal abuse, controlling behaviour, isolation and dominance”[4] such that the mother and children live in terror of the father and have done for years.
Held: Mother have sole parental responsibility for the children and they reside with the mother, the mother be permitted to everything necessary to change the children’s surnames, the mother be permitted to relocate the residence of the children to any place in Australia without notice to or permission of the father, the father be subject to a restraining order.
[396] “In many ways the facts as between the parties that I have determined in this case fit most, if not all, of the indicators of coercive controlling violence. The father has used coercion, control, violence, intimidation and threats throughout the relationship, including after separation. He seeks to intimidate and control the mother with the attendant violence, abuse, isolation and aggression. From time to time he focuses this on the children. He dominates and controls the children, particularly X, but his behaviour with regard to Y and her reaction to his verbal abuse of her in June 2008 is indicative of his continuing coercive controlling violence.
[397] The father exercised economic power to control and manipulate the mother and effectively the children. He endeavoured to isolate mother and in effect continues to do so. In that process he denies or minimises his involvement and culpability.
[399] The effect of that long term violence, control and manipulation imposed by the father on the mother has from time to time undermined the mother’s parental authority and undermined her parenting role…”
Note this case was subject to further litigation, although the judge’s comments about the type of family violence experienced were not challenged. See for example Maluka & Maluka [2011] FamCAFC 72; (31 March 2011).
HZ & State Central Authority [2006] FamCA 466 (7 June 2006) – Family Court of Australia
‘Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Parenting proceedings’ – ‘Separation’
Matter: The mother’s appeal against orders made by Bennett J on 11 April 2006 requiring the return to Greece of three children, C, D and E pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
Facts: The mother was an Australian-born woman of Greek parentage and the father was Greek. They met and married in Greece and throughout the marriage the mother and three children resided with the father’s parents in Greece. With the father’s consent the mother brought the children to Australia for what she said was a holiday and conceded that the habitual residence of the children was Greece. There was evidence of threatening text messages from the husband to the wife and the eldest child’s evidence of the father’s violence and threatening behaviour towards the mother and his own mother in the presence of the children supported the mother’s allegations.
Grounds: The trial judge erred in failing to find that Article 13(b) (grave risk of physical or psychological harm or place them in an intolerable situation) and Article 13(c) (the eldest child’s views should be taken into account) should prevent the return of the children.
Held: Appeal dismissed. The court was unable to identify error in the trial judge’s decision.
The court acknowledged the limitations of the Hague Convention in cases where domestic and family violence is alleged:
[48] The operation of the Convention which has the effect of potentially sending a mother back into a situation of risk to her own physical wellbeing has been a matter of significant academic criticism …
[75]…As we have already indicted, the return of these children to Greece was anticipated to be in their mother’s company. She had found accommodation for herself remote from that of the father. She led no evidence to suggest that the Greek authorities would be unable to provide her and the children with appropriate protection pending her utilising lawful means to relocate the children from Greece. The finding by the trial Judge that the mother had not persuaded her that the return of the children to Greece would raise a grave risk of harm to the children or otherwise place them in an intolerable situation was a finding clearly open to the trial Judge.
[78]…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.
T and N (2003) FLC 93-172; [2003] FamCA 1129 (4 November 2003) – Family Court of Australia
‘Anger management course’ – ‘Applications’ – ‘Applications and orders for child residence, contact and parenting orders (in fam law proc)’ – ‘Children’ – ‘Consent orders’ – ‘Contact proceedings’ – ‘Family violence’ – ‘Inadequate undertakings’ – ‘Independent children’s lawyer’ – ‘Judge refusal to accept consent orders for unsupervised contact’ – ‘Legal representation’ – ‘Parenting proceeding’ – ‘People affected by substance abuse’ – ‘People with children’ – ‘Safety and protection of victim and witnesses’ – ‘Women’
Proceedings: Orders sought by consent for supervised and unsupervised time with the father
Facts: The parties had two children. There was a history of violent and abusive conduct by the father against the mother and one of the children (including that he bit the child as a baby). This resulted in a number of periods of separation and reconciliation, with a number of Apprehended Violence Orders being brought against and breached by the father (see [17]-[24], [27]-[28]). The father also regularly smoked cannabis (see [25]-[26]). In April 2001, the mother left the family residence without notice, taking the children with her. At the hearing, the parties attempted settlement. The parties and the Independent Children’s Lawyer proposed consent orders for children to progress from supervised to unsupervised to block periods of time with the father, who would give undertakings regarding his conduct, discipline of the children, substance use and participation in an anger management course.
Issue/s: What orders were appropriate in the best interests of the children?
Decision and Reasoning: Moore J declined to make the consent orders as proposed as the untested evidence raised concerns for the judge that the orders may not be in the children’s best interests. Instead, the judge made orders by consent for supervised contact only. The allegations against the father indicated him to be a violent and abusive person who represented a high risk of harm to the well-being of the mother and a high risk of harm to his children.
While Her Honour acknowledged that the parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor, consent does not displace the obligation of the Court to make orders that are in the best interests of children (see [39]). Moore J also expressed her concern that the Independent Children’s Lawyer would provide support for the proposed consent orders in the face of behaviour that had the potential to place the children in serious jeopardy and in light of orders that would give no protection whatsoever to the children (see [40]).
M & M [1998] FamCA 1742 (12 November 1998) – Family Court of Australia
‘Children’ – ‘Contact’ – ‘Exposing children’ – ‘Family violence’ – ‘Impact of violence on children’ – ‘Inability to acknowledge inappropriateness of behaviour’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Supervised by court’
Proceedings: Contact orders.
Facts: The parents had two children together (B and E) and the mother had another son from a previous relationship (D). The children had witnessed violence by the father against their mother, siblings and extended family. The father had several convictions for assault against the mother and one against D, and had been subject to AVOs. After separation, B and E lived with the father, with interim orders made for the mother to have contact with the children. At trial, the parties agreed that B and E should live with the mother but a number of issues were left to be determined. At hearing, a counsellor gave evidence that both children displayed concerning behaviours consistent with early onset and repetitive physical violence.
Issue/s: One of the issues was what contact should the children have with the father?
Reasoning/Decision: On the evidence, the Court held that it was in the children’s best interest that all but in the very short term they should have no contact with the father. Orders were made to reduce contact over the space of 12 months to minimise the distress that could be caused to the children by immediate complete separation (see [96]-[100]). The Court held that the father’s abusive behaviour presented a ‘multi-faceted danger for the children’ including danger of injury as well as “fear, insecurity & vigilance”. It was held there was a risk of the children learning behaviour from the father which would affect their future interactions e.g. the daughter accepting abuse as part of life and the son believing violence is acceptable. See [94]-[95].
In the Marriage of JG and BG (1994) 122 FLR 209; (1994) FLC 92-515; (1994) 18 Fam LR 255 (30 September 1994) – Family Court of Australia
‘Child welfare’ – ‘Children’ – ‘Custody proceedings’ – ‘Impact of domestic violence on children’ – ‘Impact of family violence on children’ – ‘Parenting’ – ‘Parenting proceedings’ – ‘Parties represented by counsel’ – ‘People with children’ – ‘Relevance of family violence in cases concerning the welfare of children’
Facts: The case concerned the custody of two children aged four and two. The wife alleged that the husband had been physically and verbally violent towards her on a number of occasions.
Issue/s: What is the relevance of family violence in custody, guardianship and access matters?
Decision and Reasoning: The court accepted that the relevance of family violence will vary according to the nature of the proceedings.
Chisholm J went on to consider the relevance of family violence in proceedings relating to children. His Honour considered at [257] that although it is ‘not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims’, family violence is by no means irrelevant. His Honour held that ‘[family violence] is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration’. The standard of proof is the civil standard on the balance of probabilities. However, the conduct of a parent is relevant in custody matters only to the extent that it relates to the welfare of the children.
Where violence is directed at the children themselves, or occurs in the presence of the children, it is obviously and directly relevant to their welfare (see [260]). However, other forms of violence could also be relevant to the welfare of the children such as violence affecting the custodial parent, threats, etc. The Court must assess the nature and extent of the harm in light of the evidence and findings before them. See [261].
The Court also stated that it may be possible for the court to decline to make findings in relation to family violence, where it could determine the case without reference to them.
In the Matter Of: Re K Appeal [1994] FamCA 21; (1994) FLC 92-461 (10 March 1994) – Family Court of Australia
‘Alleged murder of mother by father’ – ‘Custody’ – ‘Family law’ – ‘Murder’ – ‘Over-emphasis of conduct of father’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Prejudice’ – ‘Separate representation’ – ‘Welfare of child’
Matter: Father, grandparents and paternal aunt’s appeal against orders granting sole guardianship and custody of the child to the maternal aunt and permission for her to remove the child from Australia to the United States where she resided.
Facts: The mother died and the father was charged with her murder and was awaiting trial at the time of the hearing before the trial Judge. Those proceedings concerned applications by the maternal aunt and the paternal grandparents and aunt for custody of the only child of the marriage. The applicant father indicated that he supported the application of the grandparents and paternal aunt that they be granted custody of the child. The trial Judge made a finding that on the balance of probabilities the husband shot the wife.
Grounds:
Husband:
•
As he was unrepresented and awaiting trial for murder the trial judge should have made interim rather than final orders, exercised his discretion to stay or adjourn the proceedings, or at least adjouned final determination until the conclusion of the criminal proceedings.
•
The trial judge failed to give reasons or adequate reasons for his decision to make final orders.
•
It was neither necessary or desirable for his Honour to have made the finding that the husband shot the wife.
Grandparents and paternal aunt:
•
The trial judge failed to give adequate weight to the evidence of Mrs Holmes in support of the appellants’ case, particularly in relation to methods of dealing with grief in eastern European families.
•
The trial judge over-emphasized the conduct or involvement of the husband in the wife’s death and this influenced him against the proposals of the appellants.
Intervention by Commonwealth Attorney-General:
The case warranted the appointment of a separate representative pursuant to s 65 of the Family Law Act because (a) permanent removal of the child from the jurisdiction was contemplated which would likely lead to cessation of any contact with the father; and (b) the relationships between and circumstances involving the parties and interveners.
Decision and reasoning: Appeal dismissed.
In considering the Attorney-General’s intervention, the Full Court (Nicholson CJ, Fogarty and Baker JJ) suggested guidelines for appointment of separate representatives for children involved in proceedings, one of which was that separate representatives should normally be appointed where there is an apparently intractable conflict between the parents:
[95] In this regard we lay stress upon the words "intractable conflict". There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the Court similarly have the assistance of such a person to present the child's point of view.
[96] If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the Court: see Law Council of Australia (1989) "Law Council Submission on Role of Separate Representatives" Vol. 4 No. 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the Court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an "honest broker" as between the child and or the parents.
Murray & Director of Family Services ACT [1993] FamCA 103 (6 October 1993) – Family Court of Australia
‘Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Motorcycle gang’ – ‘Parenting proceedings’ – ‘Separation’ – ‘Weapons’
Matter: Appeal against Hague Convention return order.
Facts: The husband was a member of the New Zealand motorcycle gang known as “the Mongrel Mob”. The mother brought her children aged five, four and two to Australia from New Zealand. Her evidence was that she was the victim of several violent attacks which included head butting, punching, kneeing her at the base of the spine. She had received death threats. The acts of violence either took place in the presence of or in close proximity to the children.
She said the husband had an arsenal of weapons which included firearms, knives, chains and meat cleavers and was likely to use the weapons against her. The husband whilst admitting to a ‘turbulent’ relationship with the wife and some incidents of violence said her claims were exaggerated. The trial Judge had rejected regulation 16(3)(b) defence commenting that it was not possible to determine the veracity of the allegations and that the evidence relating to them would be available only in New Zealand.
Held: Appeal dismissed.
The Full Court in rejecting the mother's appeal characterised the evidence as:
“almost entirely directed at the prospective threat to the wife of a return to New Zealand and more particularly to a return by her to Dunedin.” [170]
They said:
[171] Whilst there is nothing that requires the wife to return to New Zealand, it is obviously desirable and from the point of view of the children that she does so. However, there is no requirement imposed by this court that she or they must return to Dunedin. It is open for her to return to another part of New Zealand where the danger to her may be less and it is of course open to her to seek orders from the New Zealand courts both for personal protection and interim and final custody immediately upon her arrival in New Zealand. She can also, if she wishes, seek leave from the New Zealand court to take the children to Australia.
[172] As his Honour pointed out, New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.
[173] It would be presumptuous and offensive in the extreme for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the courts.
[174] In our view and in accordance with the views expressed by this Court in Gsponer's case, the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available…
[175] For us to do otherwise would be to act on untested evidence to thwart the principal purposes of the Hague Convention which are to discourage child abduction and where such abduction has occurred to return such children to the country of habitual residence so the courts of that country can determine where or with whom their best interests lie. These children are New Zealand citizens who have lived all their lives in New Zealand and it is for a New Zealand court to determine their future.
In the marriage of Merriman and Merriman [1993] FamCA 115; (1994) FLC 92-497; (1993) 116 FLR 87 – Family Court of Australia
‘Allegations of violence and abuse’ – ‘Interim custody application’ – ‘Issues of welfare of children and stability’ – ‘Physical violence and harm’
Proceedings: Interim custody application
Facts: Parties married in 1978 and separated under one roof in March 1993. There are 2 children of the marriage aged 13 and 9 at the hearing. There was corroborated evidence of violence perpetrated by the father on the mother. The husband was convicted of assault upon the wife earlier in the same year of the hearing. He was “ordered not to assault, molest or interfere with” the mother. Regardless of these orders he continued to contact the mother and make threats to her and her family. The husband also verbally abused and belittled the mother in front of the children during the marriage. There were also multiple occasions of physical abuse throughout the marriage. Since separation the husband had given the 13 year old daughter Rohypnol and shared a bed with her. He was advised by the Department of Community Services not to do this. Also post separation, the father took out a life insurance policy for the mother. The mother moved from the matrimonial home to her mother’s house in June 1993. The children remained with the father.
Issues: In light of the father’s history of domestic violence and threats, what interim arrangements should be made for the care of the children?
Reasoning/Decision: Due to the violence of the father, the Court held that he was a risk to the children both physically and developmentally (he is an “inappropriate role model”). It was held that the children were to remain in the former matrimonial home to “preserve stability for the children and for their safety” and their mother was to have interim care of the children. The father was restrained from coming within 2 miles of the home due to “serious concerns as to the safety of the wife and the children”.
Federal Circuit Court of Australia
Khoury and Ganem [2021] FCCA 869 (1 April 2021) – Federal Circuit Court of Australia
‘Allegations of serious family violence’ – ‘Application for no contact with father’ – ‘Application for sole parental responsibility’ – ‘Arranged marriage’ – ‘Child present’ – ‘Child's fear and anxiety’ – ‘Children’ – ‘Coercive control ** financial abuse’ – ‘Criminal charges’ – ‘Family law’ – ‘Independent children's lawyer’ – ‘Parenting applications’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Social isolation’ – ‘Strangulation’ – ‘Threats to family’ – ‘Threats to kill family’
Matter: Parenting applications: father’s application for interim orders that he and the child X attend ongoing reunification therapy at his expense and subject to the recommendations of the therapist, he spend supervised time with X; mother’s application that she have sole parental responsibility for X, X reside with her and X only spend time with the father in accordance with X’s wishes. The Independent Children’s Lawyer sought orders in the terms proposed by the mother, and a restraint on the father attending X’s school. Earlier final parenting orders made by consent had provided for X to have graduated contact from supervised contact to each Thursday to Sunday. Between 2013 and 2015 the father had sporadic contact with X and each alleged the other was to blame for the lack of contact. Proceedings were recommenced in 2018 and orders made for the parties and child attend therapy with a view to reunification. The reunification therapy was unsuccessful with the therapist reporting the session was terminated early due to the father’s inability to focus on the child’s feelings or regulated his behaviour in response to the child, pressuring the child who was crying and distressed, despite the therapists attempts to encourage the father to engage in behaviour which was not experienced by the child as threatening.
Among other orders the father sought orders for reunification therapy in circumstances where the mother argued it was not in the child’s best interests to see the father because of controlling behaviours, disrespect of women and extreme religious beliefs [98]. The father denies the mother’s allegations.[99]
Decision: Inter alia X reside with the mother, the mother have sole parental responsibility and the father have contact in accordance with X’s wishes, the father be restrained by injunction from attending or being within 500 metres of any school X attends, the mother obtain therapeutic counselling for X to better address her fears and anxieties.
Per Bender J:
[100] As has been set out in this judgment, therapeutic reunification counselling to assist in rebuilding the relationship between X and the Father was not successful and was a distressing and unhappy experience for X.
[101] [expert witnesses] both expressed the view that a further attempt at such therapy could be too distressing for X, especially given her current levels of anxiety and fear and her resistance to spending any time with the Father.
[102] Therefore, the real question for this Court is whether the risk to X of a meaningful relationship with the Father is outweighed by the emotional and psychological risk to X in forcing her to undertake further counselling in the hope that a relationship with the Father might be achieved.
Boden & Boden [2018] FCCA 82 (25 January 2018) – Federal Circuit Court of Australia
‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Parenting orders and impact on children’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility rebutted’ – ‘Unacceptable risk of harm’
Proceedings: Contested parenting application.
Facts: The father was physically violent and verbally abusive to the mother and children ([79]). There were two Domestic Violence Orders in favour of the mother ([217]). The two eldest daughters suffered from depression and anxiety, cut themselves, and had self-esteem issues ([2]). The youngest son was diagnosed with autism, but the father refused to accept the diagnosis, and refused to make arrangements to reduce the son’s emotional distress ([162]).
Issues: Parenting orders to be made.
Decision and Reasoning: Judge Willis identified ‘grave concerns’ about the father’s ability to regulate his emotions and about his parenting skills to independently parent ([248]). The children had ‘suffered catastrophically’ from their parents’ separation and their exposure to the family violence ([2]). Due to the father’s admissions to family violence, the presumption of equal shared parental responsibility was rebutted ([238]).
Judge Willis remarked at [247]:
I have the impression that the mother has significant insight into her own behaviour and that of all of the children. She is acutely aware and has the skills to deal with Z and Y cutting themselves, of them suffering depression and anxiety and having self-esteem issues. Some of these issues will, no doubt, be directly related to their exposure to family violence. Day in day out, experts in this Court talk about the effect of family violence in children and their inability to sustain relationships, become depressed and blame themselves for breakdowns. All of these things have happened for Y and Z.
Judge Willis ordered that the father undertake an anger management course, and that the mother undertake a Domestic Violence course in relation to the cycle of violence ([232]-[233]). The judge ordered that the son have limited contact with the father (see Orders).
Atkinson & Atkinson (No 3) [2016] FCCA 2284 (2 September 2016) – Federal Circuit Court of Australia
‘Coercive control’ – ‘History of domestic and family violence’ – ‘Parental responsibility’ – ‘Systems abuse’
Matter: Mother’s application for residence, sole parental responsibility and contact for child X; Father’s application for residence, sole parental responsibility and contact for child X.
Issues: Best interests of child, whether the Father has been violent towards the Mother; and whether the Mother suffered from any mental illness or disorder which “significantly negatively affects her parenting”.
Facts: Each party’s evidence was that the other was not an appropriate parent. The mother alleged the Father perpetrated family violence against her and the Father alleged the mother had a mental illness or disorder which caused her to manufacture malicious allegations against the Father. The father had engaged in a pattern of coercive and controlling behaviour by repeated texts and telephone calls and at least one late night attendance at her home. The Court expressed concerns that the Mother’s reports of the Father’s domestic violence towards her to hospital staff following hospital attendance whilst injured and pregnant were not investigated by the Department of Family and Children’s Services of New South Wales (“the Department”) as the parties had resumed their relationship when the mother refused service.
It emerged in cross-examination of the Father that he had failed to disclose his involvement in other litigation, in the Family Court with his ex-wife and various local courts in relation to other family violence matters. The Father had made repeated groundless, repeated, repeated allegations against the Mother to Police, the Department and various medical practitioners. He also failed to comply with procedural and counselling requirements expeditiously.
Decision and reasoning: Ordered that the mother have sole parental responsibility and reside with the mother, the father to have contact. The father denied all allegations against him and had a complete lack of insight into the impact of his behaviour.
The allegations raised by Mr Atkinson at various points in the proceedings have, on their face, appeared highly concerning. The Court has, accordingly, proceeded with some caution and consumed vast resources in the determination of serial Interim Applications. When each of those allegations, serious on their face, have been examined they have been found wanting substantial, if any, support. Indeed, the actions taken by Mr Atkinson in seeking to obtain evidence, photographing the child, presenting the child to a Doctor on a weekly basis and presenting the child to the Police, is, upon the evidence as it has unfolded, far more injurious to the child than that complained of. The repetition of those behaviours is a far greater concern as to future risk than anything complained of as regards the mother.[440]
In light of the findings that have been made by the Court regarding the perpetration of family violence by Mr Atkinson upon Ms Atkinson, it would be entirely unreasonable and onerous to impose upon Ms Atkinson a burden to consult and endeavour to make joint and consensual decisions with Mr Atkinson. To that end and whilst it is submitted on behalf of Mr Atkinson that the Court should find that these parents have “differing parenting styles rather than family violence”, I make clear that this submission is rejected. What has occurred in the relationship between Mr and Ms Atkinson is, I am satisfied, family violence.[473]
Corby & Corby [2015] FCCA 1099 (16 April 2015) – Federal Circuit Court of Australia
‘Admissibility’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Parenting orders and impact on children’ – ‘Recorded conversations’ – ‘Sexual and reproductive abuse’ – ‘Whether recordings were reasonably necessary to protect lawful interests’
Proceedings: Application for the admissibility of evidence.
Facts: On the first day of the final parenting hearing in relation to the parties’ only child X, counsel for the mother sought the Court’s leave to tender four short audio recordings of conversations between the mother and father that took place prior to separation. The mother accepted that these recordings were made without the knowledge of the father, that they are ‘private conversations’ and were therefore prima facie made in contravention of s 7 of the Surveillance Devices Act 2007 (NSW). However, counsel for the mother submitted that the recordings were admissible because the recordings were ‘reasonably necessary’ to protect her lawful interests (s 7(3)) or, alternatively, the evidence ought to be admitted under s 138(1) of the Evidence Act 1995 (NSW) because the desirability of admitting the evidence outweighed the undesirability of doing so.
Issue/s:
•
Whether the recordings were reasonably necessary to protect the mother’s lawful interests and consequently, admissible?
•
Whether the recordings ought to be admitted on the basis that the desirability of the evidence outweighed the undesirability of admitting the evidence?
Reasoning/decision: Sexton J held that the mother’s conduct was lawful under s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and therefore the recordings were admitted on this basis. In making this finding, Sexton J held that first, s 7(3)(b)(i) was satisfied in relation to the term ‘lawful interests’ as the mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to respond to the father’s demands for sexual activity: DW v R (see [19]-[23]).
Second, Sexton J was satisfied that the recordings were ‘reasonably necessary’ (‘reasonably appropriate’ as opposed to ‘essential’ and judged objectively at the time of the recordings) to protect those lawful interests: DW v R. Here, the mother made the recordings for the purpose of having evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself and the child from further behaviour. Sexton J stated that, ‘[w]hile the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted. If this was so, as the Court found in R v Coutts, it may not have been a realistic option for her to report her predicament to police and obtain a warrant for conversations with her husband to be recorded’ (see [29]). The evidence also disclosed that the father may have had a very different public face to his private face. The mother was not trying to obtain a confession but to establish her credibility if there was ever a dispute about what actually happened (see [24]-[31]).
Although the matter did not turn on the issue, Sexton J also considered whether the evidence should be admitted on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Sexton J concluded that had it been necessary, she would have exercised the discretion to admit the evidence for a number of reasons including that the evidence was highly probative to making parenting orders in the best interests of the child, the allegations were extremely serious and it was necessary for the court to determine if the child was at risk in the father’s care, the impropriety of the mother in making the recordings was not of the “worst kind”, and it was “unlikely” the mother could have gained consent to make the recordings (see [32]-[36]).
Federal Circuit and Family Court of Australia (Division 1) Appellate Division
Carter and Wilson [2023] FedCFamC1A 9 (10 February 2023) – Federal Circuit and Family Court of Australia (Division 1)
‘Appeal from order for equal shared parental responsibility’ – ‘Coercive control’ – ‘Context of coercive and controlling behaviour’ – ‘Controlling conduct’ – ‘Costs’ – ‘Equal shared parental responsibility’ – ‘Family law’ – ‘Father perpetrator’ – ‘Findings of family violence’ – ‘Genuine concerns for child's welfare’ – ‘Limitation of contact’
Matter: Mother’s appeal from order for equal shared parental responsibility.
Facts: A final parenting order made 8 April 2022 provided that the parties have equal shared parental responsibility for their child, X, born in 2016. The order was made subsequent to a consent order which provided for a graduated increase in the father’s contact with the child to the point he spends alternate weekends and one night in the alternate week with the father. The father had been physically violent towards the mother on one occasion and the father accepted that he had held his hand over his older daughter, Y’s mouth to prevent her screaming. No criminal charges were laid re Y’s allegations but she was named as the protected person in a protection order issued against the father and had not had contact with him since September 2017. The primary judge held that the father’s admission of violence against the mother was relevant to the determination that the presumption of equal shared parental responsibility did not apply to the matter. The primary judge held that the mother’s conduct in limiting the time the child spent with the father and her insistence upon supervision amounted to controlling conduct for the purpose of the definition of family violence in s4AB of the Family Law Act 1975 (Cth).
Held: Appeal dismissed, costs certificates issue in favour of the mother, the father and the independent children’s lawyer.
The primary judge’s error in finding that the mother’s behaviour amounted to controlling conduct did not impact the result of the case, and therefore the appeal was dismissed.
McClelland DCJ and Campton JJ) observed that ‘controversially… the primary judge also found that the mother’s conduct in limiting the amount of time the child spent with the father and her insistence upon such time being supervised amounted to controlling conduct for the purpose of the definition of family violence as set out in s 4AB of the Act’ [6], noting:
[16] In the context of the facts and circumstances of this case, we respectfully agree with Bennett J that the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1). In that respect, there was no finding that the mother’s concerns for the welfare of the child were other than genuine in the context where she had herself been the subject of one violent assault by the father and had witnessed the father’s admittedly unacceptable conduct towards Y. There was no finding that the mother acted capriciously or maliciously. Indeed, as noted by Bennett J, the mother was acting in accordance with orders of the Court after 30 January 2019.
[17] The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important. There was no finding that the mother was acting other than protectively towards the child. Such conduct, in the context of the Act, which has a strong focus on the promotion of the welfare of children and protecting them from being exposed to violence, cannot, in our respectful opinion, in the circumstances of this appeal, reasonably ground a finding of family violence as defined in s 4AB of the Act.
Bennett J observed:
[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over a child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
[85] In placing the mother’s behaviour in context, I assume that the relevant period during which the primary judge found that the mother’s behaviour constituted family violence was from the child’s birth until the first parenting order, that is, from 2016 to 30 January 2019. However, there is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father “initially” (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
[87] Whilst it is uncontroversial that the mother did not allow unsupervised time between the father and the child when she and the father were living separately and apart prior to orders being made, the primary judge does not identify the extent to which the father’s limited participation in the first three years of the child’s life is attributable to the mother’s behaviour, or why the control exercised by the mother was not consistent with steps taken by a parent who is acting protectively.
[88] The primary judge refers to the mother’s behaviour as controlling of the child, the father and of the child’s relationship with the father. However, his Honour’s reasons do not include an analysis of the evidence or findings about the respects in which he was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.
Isles v Nelissen [2022] FedCFamC1A 97 (1 July 2022) – Federal Circuit and Family Court of Australia (Division 1)
‘Child abuse’ – ‘Child exploitation material’ – ‘Child protection’ – ‘Children’ – ‘Family law parenting’ – ‘Risk of sexual abuse of child by father’ – ‘Sexual assault’ – ‘Sexual interest in children and adolescents’ – ‘Unacceptable risk’ – ‘Use of tendency evidence’
Matter: Appeal against family law parenting decision.
Facts:
The appellant father and first respondent mother had four children. When he was nearly 7, their eldest son alleged that his father had sexually assaulted him. As a result, the mother sought to prevent the father from having access to all four children. The father argued that the mother had encouraged the son to make false allegations against him. The mother agreed to consent orders allowing the father to have unsupervised access to the children knowing that the second respondent, the Department of Communities, would intervene to prevent this [66]. The independent children’s lawyer was also party to the proceedings.
At trial, the central issue was whether the father posed an unacceptable risk of harm to the children [69]. The primary judge found that, although it was not possible to find on the balance of probabilities that the father had perpetrated the abuse, he posed an unacceptable risk to the children and contact should be supervised [75].
Grounds:
(1) In relation to the standard of proof, the primary judge misapplied s140 of the Evidence Act (balance of probabilities in civil cases) and should have made a finding about unacceptable risk on this basis.
(2) In relation to tendency evidence, the primary judge considered tendency evidence that should not have been admitted under Part 3.6 of the Evidence Act 1995 (Cth), regardless of the father’s failure to object [98].
Held: Appeal dismissed.
The court noted the comprehensive and prescriptive requirement to consider “unacceptable risk” when making parenting orders:
[58] …s 60CG of the [Family Law] Act [1975] exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interest will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss4(1) and 4 AB of the Act respectively.
(1) On the standard of proof, the primary judge was correct in separating the need to make a finding on the balance of probabilities in relation to fact (ie did the father sexually assault his son?) and the question of future risk (ie is the father an unacceptable risk to the children?) [83]. While the question of future risk is ‘evidence-based’ and ‘not discretionary’ [85], the court held that even if the risk were only possible, not probable, it would be unacceptable [86].
(2) On tendency evidence, under Part VII of Family Law Act (children), large tranches of the Evidence Act do not normally apply [88]. However, given that the mother and Department sought a finding that the father had committed the criminal offence of sexual assault, the primary judge decided under s69ZT(3) before proceedings had commenced that the Evidence Act would apply [91]-[93]. The relevant tendency evidence was the father’s apparent sexual interest in other adolescents and his alleged interest in child exploitation material [103]. Although the father could have objected to the admission of this evidence at trial, he did not and so could not object on appeal [95, 97]. Despite the admission of this evidence, the primary judge was unable to find that the father had committed the sexual assault, so the appeal court held that the father had suffered no prejudice [103].
Federal Circuit and Family Court of Australia (Division 2) Family Law
Campi and Ferrin [2022] FedCFamC2F 1621 (24 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
‘Application in a proceeding’ – ‘Best interests of the children’ – ‘Family law’ – ‘Family report’ – ‘Interim hearing’ – ‘Parental alienation’ – ‘Psychologist evidence’ – ‘Reportable intensive family therapy’ – ‘Significant risk of psychological harm’
Matter: Mother’s application in a proceeding, seeking orders for reportable intensive family therapy to be conducted by Dr B. to address alleged parental alienation of the mother by the father.
Facts: The children resided with the father and there was evidence the children’s relationship with the mother was fractured and the children had been resistant to contact with the mother since March 2022 when they last had supervised contact with the mother at a contact centre. It appeared the children had refused to participate in contact pursuant to a consent order made September 2022 that the younger child have unsupervised contact with the mother from after school until 7 pm each Friday afternoon which the older child could join if he desired. The court was unable to consider the mother’s allegation that the father had alienated the children from her in the interim hearing.
Newbrun J considered proposals for children to attend intensive family therapy in the context of mother’s allegations of parental alienation by father:
[9] The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult.
[38] As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model [Reportable Intensive Family Therapy], and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c) Family Law Act 1975 (Cth):
(a)
The Court’s concern that the children may be exposed to psychological harm if subjected to the proposed intensive four-day family therapy RIFT model;
(b)
The lack of material before the Court relating to risk screening of the children prior to participating in the proposed intensive family therapy;
(c)
The lack of material before the Court relating to the nature of the proposed intensive family therapy;
(d)
The lack of any independent evaluation of the proposed intensive family therapy;
(e)
The content of the Family Report does not suggest that expert evidence from a clinical psychologist such as Dr B and/or further family therapy is required to elucidate the issue of parental alienation;
(f)
The Family Report writer, appointed under section 62G of the Family Law Act 1975 (Cth) to provide a Family Report, is well able to provide appropriate evidence and opinions in relation to the issue of parental alienation (the Family Report writer, refers to and/or discusses the issue of parental alienation in paragraphs 76, 100, 102, 104, 108, 111, 112, 113 albeit she does indicate that the Court needs to conduct a further assessment of this issue). The Court is of the view that it is not necessary in this case for it to have a range of opinion on the issue of parental alienation;
(g)
The content of the Family Report does not refer to and/or support Dr B’s proposed intensive four day family therapy RIFT model.
Wylder v Wylder [2022] FedCFamC2F 1366 (9 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
‘Best interests of child’ – ‘Child abuse’ – ‘Coercive control’ – ‘Covert recording’ – ‘Manipulation’ – ‘No contact order’ – ‘Parenting’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Selective misrepresentation’ – ‘Social media’ – ‘Suicide threat’ – ‘Systems abuse’ – ‘Technology facilitated abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Victim as (alleged) perpetrator’ – ‘Weapons’
Case type: Appeal against parenting order.
Facts: The father was an Australian resident who met and married the mother in Country B. They moved to Australia where their daughter was born in 2017. The father made repeated notifications to the Department of Child Safety alleging that the mother used corporal punishment to discipline the child contrary to Australian standards [44], [68]. From videos posted on social media by the father, it was evident that the father did not listen to the child and coached her to make allegations of violence against the mother [56], [111]. The mother did not speak English well and she yielded to the father’s demands to agree to his unsupervised contact with the child in consent orders [26]-[30].
In previous proceedings the Court ordered the father be assessed for drug and alcohol use but he refused to participate [19]. In a search of the premises executing a recovery order for return of the child, police found weapons at the father’s house and charged him with offences under the Weapons Act [36]. In 2015, the father was self-medicating with anti-anxiety drugs when he admitted himself as an inpatient in a mental health unit. He said he had daily intrusive thoughts about killing the mother [124]. He discussed with other inpatients a plan to stalk his treating psychiatrist with intent to harm him and his family [129]. The father’s mother (ie the child’s paternal grandmother) applied for a domestic violence order against the father in 2019 [143]. The Court considered that there was ‘ample evidence’ that the father had engaged in family violence towards the mother [149].
Issue: The best interests of the child.
Held: The Court ordered that the mother have sole parental responsibility for the child, that the child live with the mother and that the mother be permitted to relocate with the child. The Court ordered that the father should have no time and no communication with the child.
The mother did not pose a risk to the child [116]. After an intervention by police and a social worker, the mother changed her approach and reduced her reliance on physical discipline [67]. The child was happy living with the mother [290].
The father was assessed by a forensic psychiatrist as being a high risk of suicide and murder-suicide, including kidnapping and absconding with the child, and an even higher risk to others generally [234]. He was also assessed as having a narcissistic personality and an anti-social personality disorder [219]. His postings on social media and abusive threats against his wife were in breach of a court order and he demonstrated contempt towards the Family Court and legal processes [305].
Although the father claimed to be the victim of physical violence from the mother, what concerned Judge Vasta was the father’s coercive control of the mother:
1.
However, it is not the spectre of physical violence that concerns this Court; rather, it is the spectre of coercive control. Whilst it had been documented that the parents had separated on occasions, the mother said that the father spoke to her in such a way that she felt compelled to return to the relationship. The father denies any such conduct.
2.
What has been of concern is the documented history of the litigation. It is incongruous that the mother would make the complaints that she made during the previous filing in this Court (BRC 11666/2019); have a Court make an order that mandated supervised visits between the father and the child; and, then choose to ignore that and, instead, come to a compromise solution with the father that gave him unsupervised equal time with the child.
3.
There seems to be no other rational explanation for this other than the father implementing coercive control over the mother to the extent that she felt that she had no other choice but to comply with the father’s demands. The judicious use of covertly recorded conversations with one parent by the other parent and then referring to selective excerpts is a feature that is often found in cases of coercive control.
4.
In this case, the father did give to the Court such selective recordings. The father pointed to one particular recording where the mother made an “admission” that the father was the favoured parent by the child. In another recording, the mother “admitted” that the father treated her like a queen. In another recording, the mother is said to convey that she arranged custody arrangements for her financial benefit. In a further recording, the mother has “conceded” that she was “not going back to court again”. And in a final recording, the mother “admitted” that the father would never hurt his daughter.
5.
These recordings were used by the father to intimidate the mother into not pursuing any parenting matter because these recordings would be used against her, as if they were repudiations of her stance. Of course, they have little evidentiary value as they are excerpts from a larger conversation upon which the Court has no information, and therefore, no context.
6.
The behaviour in making constant notifications to the Department of Child Safety can also be seen as a manifestation of the coercive control. Further, posting the videos to social media can also be seen as a manifestation of coercive control. One such video records a “Tik Tok” dance that the mother had uploaded to social media. The father recorded himself watching the video where the father made derogatory comments suggesting that the manner of solo dancing in the video was not befitting that of a woman who had a boyfriend, let alone a woman who was a mother.
7.
….
8.
The father will attempt to draw the child into his world; a world where the mother is evil and cannot be trusted and a world where institutions such as the police and the Courts are malevolent and must be resisted. This was perfectly illustrated by the manner in which the father dealt with the child when making the videos. He ignored what the child was saying and imposed his own version of the facts and would not brook any variation to that. The child will never be truly free under the care of the father and she will not have the opportunity to grow and experience life because she will be made to conform to his world view.
9.
And this is just part of the danger that the father represents. The evidence that the father planned to do harm to his treating psychiatrist because that psychiatrist would not support his application for a pension is concerning enough. But when this is added to the father’s manipulation of the mother to avoid having to endure supervised visits with the child, the reaction of the father to police attempting to serve him with the police protection order, the obsessive determination with which he wished to expose a “rapist” at the school, his Facebook comments to a Member of Parliament as to his capacity for violence and the nonchalance with which he violated a Court order and injunction about posting on social media, the jeopardy at which he places X cannot be overstated.
10.
There are absolutely no safeguards that the Court could put in place that would allow the father to have any form of contact with X and yet keep the child safe.
11.
It is never an easy task for a Court to make orders that prohibit contact between a parent and child, however there are those rare cases where such an order is the only order that can be made in the best interests of the child. This is one of those cases.
Ramzi & Moussa [2022] FedCFamC2F 1473 (4 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
‘Application that child spend no time with a parent’ – ‘Arranged marriage’ – ‘Children’ – ‘Coercive control’ – ‘Cultural and spiritual abuse’ – ‘Culturally and linguistically diverse backgrounds’ – ‘Deprivation of liberty’ – ‘Economic and financial abuse’ – ‘Exposing children to domestic violence’ – ‘Fear’ – ‘Following, harassing and monitoring’ – ‘Forced marriage’ – ‘Harassing’ – ‘Humiliation’ – ‘Impact on mother's parenting capacity’ – ‘Injunctive orders’ – ‘Isolation’ – ‘Mitigation of risk’ – ‘Monitoring’ – ‘No time ordered’ – ‘Parenting arrangements’ – ‘Physical violence’ – ‘Poor literacy skills’ – ‘Protection orders’ – ‘Sexual abuse’ – ‘Social abuse’ – ‘Sole parental responsibility’ – ‘Threats’ – ‘Unacceptable risk’
Proceedings: The proceedings were for the determination of parenting arrangements for a five-year old child (X) of the two parties.
Issue: The parties agreed that the child should live with the mother. However, at issue was:
1.
Whether the mother should be ordered to return to Melbourne with the child;
2.
How parental responsibility for the child should be exercised;
3.
Whether the father poses a risk of harm to the child;
4.
If the child is to spend time with the father in Melbourne, how much time should be allowed and should it be supervised
The alleged risks posed by the father were that:
1.
X had been exposed to and would be exposed to family violence;
2.
He had engaged in coercive and controlling behaviour;
3.
Orders allowing contact may pose a risk to the mother’s caring capacity.
Facts: The mother left her home country at a young age for another foreign country for an arranged marriage with the father and the couple later moved to Australia. The mother had only a basic level of education and spoke very limited English.
The parties separated after living together in Melbourne for two years. The mother applied for a protection order and the child (X) lived with her. Pursuant to an interim parenting order, X spent a few hours of supervised contact with his father each week. Subsequently, unsupervised contact was ordered with changeover at a supervised contact centre. The mother was late to changeover on several occasions and eventually stopped bringing X altogether before moving with the child to Sydney.
The mother made extensive allegations of family violence against the father which occurred over the course of their marriage and afterwards. These included coercive and controlling behaviour, physical abuse such as choking and beatings, sexual assault, threats and humiliation (both from the father and family/community members), monitoring her movements, denying her economic autonomy and depriving her of liberty.
The alleged risks posed by the father were that:
1.
X had been exposed to and would be exposed to family violence;
2.
He had engaged in coercive and controlling behaviour;
3.
Orders allowing contact may pose a risk to the mother’s caring capacity.
Reasoning: Beckhouse J accepted the mother’s account, finding that:
•
family violence was established (Family Law Act 1974 (Cth) s4AB(1)); and
•
the risk of X being subject or exposed to violence outweighed the benefit of having a meaningful relationship with his father (s60CC).
Beckhouse J stated that it was not necessary to make factual findings about the occurrence of each alleged individual incident ([202], s4AB(1)). The lack of eye-witnesses, inconsistencies and delayed reporting were not an impediment, particularly given the cultural barriers to disclosure. The mother’s evidence was detailed and specific, corroborated by external agencies and was understood in the context of the cyclical nature of family violence and her cultural and personal background. The father’s ‘blanket denials’ offered no plausible explanation or alternatives.
Beckhouse J found that this risk could not be ameliorated. The father had displayed a lack of responsibility for his conduct and demonstrated no desire to change. His extensive familial and community support network was viewed as a ‘double-edged sword,’ as the paternal family potentially helped conceal his conduct and he failed to understand how ongoing communication with the maternal family impacted the mother.
It was determined that contact orders would cause the mother stress and anxiety, to the detriment of her parenting ability. Given this and the risk that X would be leveraged as a weapon, both supervised time and video communication were deemed unviable.
Orders: The child reside with the mother and she have sole parental responsibility. The child have no contact or communication with the father, the child be removed from the international travel watchlist and the mother be permitted to obtain a passport for the child and travel overseas without the father’s consent.
Additionally, the father was permitted to send X a birthday message every year.
Backhouse J noted at [243] that in establishing whether a person is ‘fearful’ under s4AB(1): “fear can arise from a culmination of events and patterns of behaviour”.
Backhouse J observed at [202]:
…There are some specific individual characteristics in this matter that lead me to place less weight on inconsistent versions of events given by the mother. English was not the mother’s first language. She was poorly educated. She spoke through an interpreter. I cannot be satisfied she would have understood how domestic and family violence is defined in Australia.
Federal Magistrates' Court of Australia
Heilig & Cabiness [2011] FMCAfam 97 (2 March 2011) – Federal Magistrates’ Court of Australia
‘Children’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Family law’ – ‘History of domestic and family violence’ – ‘Parental responsibility’ – ‘People affected by drug misuse’ – ‘People with mental illness’ – ‘Separation’
Issue: Contact.
Facts: Orders for the children to reside with the mother and have alternate weekend contact with the father had been made following trial in 2003. The father has multiple criminal convictions for violent family violence offending against numerous former partners which predated the first trial for which he was convicted after the 2003 trial. The father commenced the current proceedings by filing a contravention application, which related to his lack of contact in accordance with the 2003 orders for a seven-year period (a portion of which time he was in custody serving a term of imprisonment for violent offending against the mother and two other former partners). Interim orders suspended all previous contact orders. The father sought orders for contact and to receive updates on the children’s educational progress.
The father had a long history of illicit drug consumption, controlling abusive behaviours to domestic partners, had mental health issues and conceded that, at the time of the hearing, had no meaningful relationship with the children. It was also conceded that the children were present in the same building in which quite serious family violence occurred up until 2004, though it was not conceded that the family violence was necessarily perpetrated against the mother.
Decision and Reasoning: It was ordered that the mother have sole parental responsibility for the children, the children reside with the mother and have no contact with the father.
At [30], the Court favourably refers to research quoted in the decision of the Court of Criminal Appeal on the Crown manifest inadequacy appeal in relation to the father’s sentencing, cited as R v Hamid [2006] NSWCCA 302 (20 September 2006) at [77]:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7.
It was concluded, on the basis of the father’s criminal history, the children’s fear of and lack of relationship with their father that no order for contact or communication should be made. The children were found to be at risk of psychological or physical harm if their relationship with the father was to resume.
Administrative Appeals Tribunal of Australia
1807390 (Refugee) [2022] AATA 4216 (5 October 2022) – Administrative Appeals Tribunal of Australia
‘Ability to leave abusive relationship’ – ‘Child abuse’ – ‘Coercive control’ – ‘Cultural and spiritual abuse’ – ‘Emotional abuse’ – ‘Exposing children to domestic and family violence’ – ‘Forced marriage’ – ‘Humiliation’ – ‘Isolation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with children’ – ‘People with mental illness’ – ‘Physical violence’ – ‘Post traumatic stress disorder’ – ‘Sexual abuse’ – ‘Strangulation’
Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1.
Proceedings: Application for review of decision to refuse protection visa under s 65 of the Migration Act 1958 (Cth).
Facts: The female applicant and her husband were in an arranged marriage in Sri Lanka. Over the course of the marriage her husband was physically violent – including striking and choking her,– he humiliated her, verbally abused her with sexual language, tormented her about her religion and forced her to do sexual acts. He prevented her from contacting her family over a17 year period. The husband was emotionally and psychologically abusive towards their daughter and on one occasion threw their 8-year-old son against the wall when the applicant disobeyed him. Given her husband’s respected status as a doctor and the lack of responsiveness of the Sri Lankan police to domestic violence reports, the applicant never reported the conduct.
She fled to Australia in 2012 on the pretence of visiting her son and daughter who had moved here to study, ceased contact with her husband and subsequently applied for a Protection Visa.
Issue: Did the applicant have a well-founded fear of persecution from her husband upon returning to Sri Lanka such that she was a person to whom Australia has protection obligations as a refugee pursuant to s36(2)(a) Migration Act 1958 (Cth).
Decision and reasoning: The tribunal accepted the applicant’s evidence that she was subjected to domestic and family violence from her husband in Sri Lanka and she had a well-founded fear of persecution. The tribunal acknowledged that some confusion and possible exaggeration from the applicant in giving evidence “may be attributable to the impact of past trauma and her psychological disorder, as referenced by her treating psychiatrists”, citing the National Domestic and Family Violence Bench Book on trauma-informed judicial practice[28]. The tribunal accepted that the experience of domestic violence victimisation may negatively impact memory and recount in court. The Tribunal accepted that the applicant and her daughter’s evidence described constant controlling and threatening behaviour by the applicant’s husband, referring to the description of coercive control in the National Domestic and Family Violence Bench Book.
The Tribunal found that while the applicant had not had contact with her husband for ten years, his past behaviour, her defiance of him and his proximity to the applicant’s family home in Sri Lanka posed a real risk that he would try to harm her [36]. The intentional and selective nature of the harm involved systematic and discriminatory conduct [37], s5J(4)(c) and was characterised as gender-based violence, meaning that her fear of persecution related to membership of the social group of women in Sri Lanka [38], s5J(1)(a). DFAT country information evidenced the unchecked occurrence of such violence in Sri Lanka and lack of effective protection available [40]-[42]. Cultural factors also substantiated the applicant’s claim that internal relocation would not mitigate the risk of harm, as the presence of a single woman would attract attention and likely enable her to be found [43].
X (a pseudonym) (Migration) [2022] AATA 1149 (21 March 2022) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Cancellation of visa’ – ‘Deportation’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘Immigration’ – ‘People affected by drug and alcohol misuse’ – ‘People with mental illness’ – ‘Risk to domestic partners’ – ‘Risk to health, safety and good order of community’ – ‘S.116 of the migration act 1958 (the act)’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to cancel Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
Facts: The applicant, Mr X, came to Australia at the age of 7 and was 47 years old at the date of decision. He had an extensive criminal history commencing in 1996 including multiple series of domestic violence offending, the first commencing December 2001, the second commencing November 2007 and the third in 2009. There was also a series of domestic violence offences in 2016 and 2018. Mr X’s explanations did not fully correlate to the convictions and tended to minimize his offending. His former partner’s children were removed from her care following the offending and returned to her care after Mr X’s visa was revoked and he was taken into immigration detention. He has a history of breaches of community corrections orders, bipolar disorder and drug and alcohol misuse (addressed while in prison). He is the father of 4 children, 3 of whom are adults, the youngest 17 years old, and has contact with and good relationships with 3 of his children. He has no family or support in New Zealand. The delegate relied on his ongoing risk of offending to women with whom he may be in a domestic relationship pursuant to s116(1)(e) of the Act.
Issues:
1.
Whether the ground for cancellation in s116(1)(e) of the Act - Mr X is or may be, or would or might be, a risk to:
◦
the health, safety or good order of the Australian community or a segment of the Australian community; or
◦
the health or safety of an individual or individuals;
is made out, and if so,
1.
whether the visa should be cancelled.
Decision and Reasoning: Decision to cancel the applicant’s Subclass 444 (Special Category) visa affirmed.
The Tribunal held that Mr X may be a risk to individuals in the community and in particular previous and future domestic partners and a risk to children in the household (shown by the removal of his former partner’s children). The factors which favour Mr X remaining in Australia do not outweigh the risk he poses to a segment of the community.
The Tribunal considered the distress and hardship Mr X would experience if returned to New Zealand, the likely impact on his children and mental health, his strong ties to the Australian community, his continued minimization of his offending, longstanding issues of aggression towards domestic partners and repeated non-compliance with court orders. The Tribunal also considered the fact that if the decision to cancel his visa is affirmed, he will be removed from Australia and be unlikely to be able to return. Consideration was also given to the fact that since his visa was cancelled he was sentenced to a further period of imprisonment, meaning he has a substantial criminal record as defined in s 501(7) of the Act; thus, if the visa cancellation is revoked his visa is likely be cancelled again.
A (a pseudonym) and Child Support Registrar (Child support) [2021] AATA 5499 (7 September 2021) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Child support’ – ‘Child support agency’ – ‘Children’ – ‘Counselling records’ – ‘Domestic and family violence’ – ‘History of domestic and family violence’ – ‘Non-compliance with parenting orders’ – ‘Percentage of care’ – ‘Risk to children’ – ‘Section 51, child support (assessment) act 1989’ – ‘Separation’ – ‘Special circumstances’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: The mother’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of a decision to dismiss her objection to the determination of Services Australia – Child Support (the Agency) that the care percentages of 80% to the mother and 20% to the father of the two younger children should be reflected in the child support assessment for an interim period.
Facts: The mother and father are parents of three children in respect of whom there has been a child support assessment in place since 8 January 2020, which reflected that the mother had 100% care of all three children In March 2021 the father advised the Agency that since September 2020 there had been court orders in place granting him 14 per cent care of the children and that the mother had withheld care since November 2020. On 7 December 2020 the father filed an application for interim orders seeking 100% care of the children and to enforce the existing orders and commenced contravention proceedings on 11 February 2021. The Agency made an interim care decision that from the November 2020 to September 2021 the care record must reflect that the father had a care percentage of 20% care on the basis the mother withheld care and the father was taking reasonable action to have the court-ordered care arrangement complied with. The mother’s evidence was that the children ran away from the father when he attended their school to collect them, that they are fearful of him due to his history of violence towards the mother during the relationship, and that they have not had contact with the father for three years. The mother consented to disclosure of confidential notes from counselling sessions with her psychotherapist (including some sessions with the children in which they expressed their fear of the father) spanning a 10 year period from the time of separation.
Issues:
1.
Whether the father (for the purpose of section 51, Child Support (Assessment) Act 1989 (the Act) was taking reasonable action to ensure the court orders were complied with; and
2.
whether there were special circumstances such that an interim care determination should not be made.
Decision and Reasoning: The decision under review was set aside, and in substitution the tribunal decided that from 7 November 2020 the mother has had 100 per cent care of the children for the purpose of s51 of the Act.
The tribunal was satisfied that the father took reasonable action to ensure the court-ordered care arrangements were complied with for the purposes of section 51 of the Act. In respect of the father, as required by subsections 51(2), (3) and (4) of the Act, the first care percentage is 14% while the second percentage is 0%.
In the special circumstances of this case as they relate to the children of the assessment, the father should not have the benefit of an interim period. On balance, the tribunal was satisfied that the father’s own behaviour had significantly contributed to the care arrangements not being complied with. The tribunal placed significant weight on contemporaneous counselling records which reflected that the children had disclosed that they were exposed to family violence perpetrated by the father and were subsequently fearful of the father.
B and C (pseudonyms) (Child support) [2021] AATA 5500 (3 September 2021) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Child support’ – ‘Domestic and family violence’ – ‘Non-compliance with parenting orders’ – ‘Percentage of care’ – ‘Protection order’ – ‘Risk to child’ – ‘Section 51, child support (assessment) act 1989’ – ‘Suicide threat by child’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: The father’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of the decision to dismiss his objection to the determination of Services Australia – Child Support (the Agency) pursuant to s51 Child Support (Assessment) Act 1989 that the mother’s actual 100 per cent care of the child should be reflected in the child support assessment and no interim care determination should be made.
Facts: The mother and father are parents of one child (aged 12) in respect of whom there has been a child support assessment in place since 30 September 2009. Parenting orders dated June 2020 provide that the child will spend 5 nights per fortnight and half of each school holidays in the care of the father. The pre-existing care determination was 33% care to the father and 67% care to the mother, which accorded with the care provided for in the parenting orders. On 18 December 2020 the mother advised the Agency that the child was in her 100% care due to a medical crisis, namely that the child had threatened suicide if returned to the father’s care. The child’s psychiatrist directed the child should reside with the mother and not be required to reside with the father. Medical records confirming this advice were adduced at the hearing. The father disagreed with the care change due to the court orders. The father did not respond to a disputed care contact letter issued by the Agency and on 16 February 2021 a delegate of the Agency decided that care of the child was 100% to the mother and 0% to the father from 2 November 2020. The father provided the court orders and reason for decision which make mention of the child’s mental health and the mother provided a provisional protection order made on 8 March 2021 for the protection of the child (which was later withdrawn). On 24 March 2021 an objections officer disallowed the father’s objection and the father sought review by the tribunal.
Issues:
1.
What were the care arrangements in relation to the care of the child in the relevant care period and should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?
2.
Should an interim care determination be made in relation to the care of the child, or were there were special circumstances such that an interim determination should not be made?
Decision and Reasoning: Decision affirmed.
From 20 November 2020 the child’s actual care was 100% to the mother and 0% to the father. The tribunal acknowledged that there was a court-ordered care arrangement in place that was not being adhered to, and that the father contended that he was taking reasonable action to have his court-ordered care restored. However, the tribunal found that special circumstances existed on the basis of the psychiatrist’s advice that the child remain wholly in the mother’s care due to his medical crisis, and that it was therefore appropriate to determine the respective care percentages based on actual care, rather than making an interim care determination by reference to the parenting orders.
Simpson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 78 (1 February 2021) – Administrative Appeals Tribunal of Australia
‘Another reason to revoke mandatory cancellation decision’ – ‘Application for review of decision not to revoke cancellation of visa’ – ‘Character test’ – ‘Criminal history’ – ‘People affected by substance misuse’ – ‘Uncharged acts’
Proceedings: Application for review of decision not to revoke cancellation of visa.
Facts: A delegate of the Minister (the respondent) mandatorily cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. The applicant made written representations to the respondent requesting revocation of the cancellation of the visa. The respondent declined to revoke the cancellation.
Issues: Under s 501CA(4) of the Act, the original decision may be revoked if –
1.
The applicant passed the character test (subsection (b)(i)).
2.
There is another reason why the decision to cancel the applicant’s visa should be revoked (subsection (b)(ii)).
Decision and reasoning: Application for review of decision not to revoke cancellation of the applicant’s visa was dismissed.
Issues 1: The applicant had a “substantial criminal record”. He did not pass the character test defined in s 501(6) of the Act and could not rely on s 501CA(4)(b)(i) as a reason for the mandatory cancellation of the visa to be revoked.
Issue 2: The Tribunal was required to consider “Primary Considerations” under Direction 79 (as well as “Other Considerations”).
On Primary Consideration A “Protection of the Australian community from criminal or other serious conduct”, the Tribunal member noted that under the Direction she was “not limited to considering proven offences” but “required to consider the nature and seriousness of the applicant’s ‘conduct to date’.” This included an incident where the applicant damaged his ex-partner’s new partner’s car, grabbed his ex-partner, and threatened her and her new partner with violence. This was “very serious conduct” (at [52]). The applicant had also committed 34 criminal offences and had a lengthy traffic history. There was a moderate risk he would commit further offences. Primary Consideration A weighed heavily against revocation of the cancellation of the Applicant’s visa ([49]-[84]).
D (a pseudonym) (Migration) [2020] AATA 3488 (30 June 2020) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Domestic and family violence’ – ‘Evidence of de facto relationship’ – ‘Evidence of family violence’ – ‘Immigration’ – ‘No family violence’ – ‘Partner visa’ – ‘S.65 of the migration act 1958’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia
Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
Facts: The applicant, Ms. D claimed that her relationship with Mr P, the visa sponsor, had ceased and she had been the victim of family violence. She applied for Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act). A delegate of the Minister refused to grant a visa to the applicant on the basis that she did not meet cl.820.211(2)(a) of the Migration Regulations (1994) because the evidence failed to demonstrate that the applicant was the de facto partner of the sponsor, as defined under section 5CB of the Act.
Issues: To grant a Partner (Temporary) visa (Class UK) visa, the Tribunal must be satisfied:
1.
The evidence is sufficient to demonstrate the applicant and the sponsor had been in a de facto relationship and that the relationship has ceased to exist.
2.
The evidence is sufficient to demonstrate family violence.
Decision and Reasoning: The Tribunal found that there was a de facto relationship and it had ceased but found there was no family violence, so affirming the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
After considering the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other, the Tribunal member was satisfied that the applicant and sponsor had been in a de facto relationship, and the relationship had ceased [14].
Relying on statutory declarations provided by a social worker and a psychologist and a mental health plan written by a medical practitioner, the applicant made a non-judicially determined (see r1.24 and 1.25 Migration Regulations (1994)) claim of family violence.
After considering the evidence, the Tribunal member was not satisfied that the applicant had suffered relevant family violence. The Tribunal member found no evidence of physical violence and was not convinced that the psychological trauma experienced by the applicant met the test required by the legislation to sustain a claim of family violence [28]. The Tribunal sought the opinion of an independent expert.
The Independent expert report (the report) found that “the sponsor’s conduct did not cause [Ms. D] to reasonably fear for, or to be reasonably apprehensive about, her well-being or safety. … [Ms. D] said that she has maintained a friendship with the sponsor despite him reportedly continuing to verbally abuse her.”[33] The report found the applicant had not experienced family violence outlined in r1.21 Migration Regulations (1994).
The applicant challenged the report. The Tribunal member was concerned as to whether the applicant had been afforded procedural fairness [42] and a second hearing took place.
The Tribunal member considered the written responses of the applicant and her agent to the report, the responses of the independent expert to the matters raised by the applicant and her agent and discussed these issues with the applicant and her agent at the second hearing [62]. The Tribunal member found that the applicant had not suffered family violence committed by the sponsor.
Hamilton and Secretary, Department of Social Services (Social services second review) [2020] AATA 1918 (26 June 2020) – Administrative Appeals Tribunal of Australia
‘Covid-19 pandemic’ – ‘Domestic violence’ – ‘Financial abuse’ – ‘New start allowance’ – ‘Special circumstances’ – ‘Workers compensation’
Case type: Review
Facts: The female applicant sought review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division, which affirmed the decision of the Department of Human Services rejecting her new start allowance claim because she had a compensation lump sum preclusion period from 2 March 2010 to 21 April 2025. The applicant had received a workers compensation lump sum payment for injuries suffered in a motor vehicle accident. Her evidence was that she suffered severe financial hardship as her abusive male ex-partner had accessed and gambled her savings. She terminated the relationship and had to sell her home due to her financial difficulties, retaining about $400,000. The relationship resumed and he used her ATM card to take money from her bank account threatening to beat her if she did not provide access to her funds. The applicant finally terminated the relationship and said he had taken all the money which she had following the sale of her house which represented all that remained of the settlement sum she had received ([67]). The applicant was unable to obtain continuous employment and was experiencing severe financial hardship ([79]).
Issue: Whether special circumstances exist.
Held: The Tribunal set aside the decision and held that the applicant’s circumstances were "special" pursuant to s 1184K, such that much of her compensation payment should be treated as not having been made so as to reduce the preclusion period applicable to her compensation payment so that it ended on 21 May 2020 ([82]). The special circumstances in accordance with s 1184K(1) related to the totality of the applicant’s circumstances, including her financial hardship, her injuries, her financial deprivation following domestic violence and financial abuse ([79]).
The hearing was conducted via telephone in accordance with the provisions of the Tribunal’s COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions ([29]).
Australian Information Commissioner
‘WZ’ and CEO of Services Australia (Privacy) [2021] AICmr 12 (13 April 2021) – Australian Information Commissioner
‘Audit of policies, procedures and systems’ – ‘Complainant had notified of separation from partner’ – ‘Following, harassing and monitoring’ – ‘Privacy’ – ‘Protection orders’ – ‘Residential address disclosed to the complainant's former partner’
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The female complainant was receiving Centrelink payments administered by Services Australia (the respondent) while living with her former male partner. She obtained an Apprehended Violence Order (which her partner was imprisoned for breaching). The complainant notified the respondent of her separation from the partner, but the respondent considered the separation unverified. Their online records continued to be linked meaning that if the complainant updated her address online, her partner’s address would also be updated. Her former partner posted a screenshot of the complainant’s new address to social media and made threats against her and her current partner.
Issues: Whether Services Australia interfered with the complainant’s privacy as defined in the Privacy Act 1988 (Cth).
Decision and reasoning: The Commissioner found that the respondent interfered with the complainant’s privacy by:
1.
Disclosing the complainant’s personal information, namely, her new address to her former partner, for a purpose other than that for which it was collected, in breach of Australian Privacy Principle (APP) 6.
2.
Failing to take reasonable steps to ensure that it used accurate and up-to-date personal information of the complainant in the form of her relationship status having regard to the purposes of its use, being to update her former partner’s address, in breach of APP 10.2.
3.
Failing to take reasonable steps to ensure that it used accurate and up-to-date personal information of the complainant in the form of her address at which she could be contacted in breach of APP 10.2.
4.
Failing to take reasonable steps to protect the complainant’s personal information, being her updated address, from unauthorised disclosure to her former partner in breach of APP 11.1.
In addition to ordering compensation for non-economic loss (including re-activation of psychological symptoms and distress) and expenditure incurred in association with the privacy complaint, and ordering an apology, the Agency was required to undertake an audit of policies, procedures, and systems to ensure the privacy breach was not repeated or continued. The Commissioner noted at [156]-[160]:
The effect of this privacy breach on the complainant has been significant. This is in large part due to the fact that she feared harm from the former partner… While the changes the respondent has made are encouraging, I remain concerned that individuals are at risk of their personal information being disclosed to former partners.
[…]
It is appropriate for the respondent to put in place more robust measures where the consequences for individuals are more significant. It is therefore appropriate to have special measures in place to protect individuals identified as being at risk of domestic violence. However, I remain concerned about the risks to individuals seeking to update their own address and not that of their former partner, where the respondent is not satisfied that the individual has in fact separated from their partner, regardless of whether they have a history of family or domestic violence. The ‘reasonable steps test’ is one that takes into account all relevant circumstances, including what is practical and what is required where the adverse consequences to particular individuals are significant.
I therefore see no reason to limit the audit to a particular cohort of individuals, including those at risk of family domestic violence. It is appropriate in order to address the grievance to target the situation where an individual makes unverified claims to have separated from, or to be no longer living with, their partner, and seeks to update their address, whether online or in person.”
‘ST’ and Chief Executive Officer of Services Australia (Privacy) [2020] AICmr 30 (30 June 2020) – Australian Information Commissioner
‘Damages for non-economic loss’ – ‘Disclosure for tribunal proceedings’ – ‘Following, harassing and monitoring’ – ‘Information privacy principles’ – ‘Privacy’
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The female complainant’s complaint concerned the disclosure of her personal information, collected by the former Child Support Agency for a Tribunal hearing, to the complainant’s ex-partner. She claimed that the personal information revealed the places she visited which she had attempted to keep hidden from the ex-partner as she feared harm.
Issues: Whether Services Australia interfered with the complainant’s privacy as defined in the Privacy Act.
Decision and reasoning: Services Australia interfered with the complainant’s privacy, breaching the Information Privacy Principles (IPP), by disclosing the complainant’s personal information in breach of IPP 11. The locational information disclosed was not relevant to the decision under review by the Tribunal and the complainant was therefore not likely aware that information of its kind would be disclosed.
In terms of damages, the Commission accepted that the complainant had already disclosed some of the places she had frequented through other processes. The Commissioner noted at [75]-[76]:
“I do not consider that the previously disclosed information negates the complainant’s claim to have feared the ex-partner locating her. The complainant clearly went to some lengths to redact certain information from the documents she provided in the primary decision process and I accept her claim that she thought carefully about what information to disclose.”
“However, I am of the view that in all the circumstances, the degree by which the disclosure contributed to the complainant’s fear of being located by the ex-partner was not significant. I place weight on the fact that the complainant had disclosed some locations to the ex-partner during the COA process and that she continued to maintain a PO Box at the same post office as the ex-partner. I also note the absence of any evidence showing that the complainant sought the assistance of police. While I accept the complainant’s claims to have feared being located by the ex-partner, these claims are not so specific and detailed (nor are they supported by specific and detailed corroborating evidence) as to cause me to form the view that the disclosure exacerbated her fear of being located to a significant extent.”
The Commissioner was satisfied that the privacy breach had caused the complainant distress, but no other claimed damage. She was awarded $3,000 for non-economic loss.
‘PJ’ and Australian Federal Police (Freedom of Information) [2018] AICmr 64 (10 September 2018) – Australian Information Commissioner
‘Confidentiality’ – ‘Freedom of information’ – ‘Public interest’ – ‘Systems abuse’ – ‘Whether disclosure of personal information unreasonable’
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant applied to the Australian Federal Police (AFP) for access to “any notes made on myself by the Australian Federal Police. Not criminal records, but any and all police files/notes made on me.” The AFP exempted access to 13 folios in part under s 47F (the personal privacy exemption) of the Freedom of Information Act 1982 (Cth). Some exempt material included names, dates of birth and contact details of third party individuals, and information pertaining to an alleged domestic violence incident.
Issues: Whether the material the AFP found to be exempt under s 47F was conditionally exempt. If so, whether giving the applicant access to conditionally exempt documents would, on balance, be contrary to the public interest (s 11A(5)).
Decision and reasoning: Access to personal information of third party individuals and about an alleged domestic violence incident involving the applicant was refused.
Taking into account the nature of the information, that the information was provided for a limited purpose and was not well-known or available from other public sources, the Commissioner accepted the AFP’s submission that disclosure could undermine a range of processes intended to protect individuals and could discourage those who may be affected by domestic violence from coming forward to police. The Commissioner was satisfied disclosure would be unreasonable and the relevant material was conditionally exempt under s 47F. It was also contrary to the public interest to give the applicant access to the conditionally exempt documents at this time.
‘DK’ and Telstra Corporation Limited [2014] AICmr 118 (30 October 2014) – Australian Information Commissioner
‘Family law judge’ – ‘Following, harassing and monitoring’ – ‘Non-economic loss’ – ‘Privacy’
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The complainant worked as a judge in the family law jurisdiction. He requested that Telstra connect a phone line to his home for the sole purpose of an alarm system installed by the Court. Telstra set up the phone line and published the complainant’s name, address and the phone number in both the White Pages online and in the hard copy directory.
Issues: Whether Telstra had breached the complainant’s privacy.
Decision and reasoning: Telstra interfered with the complainant's privacy by failing to take reasonable steps to provide notice to the complainant that it would use and disclose his personal information for the purpose of publishing it in the White Pages, in breach of National Privacy Principle (NPP) 1.3. Telstra was ordered to apologise, review its processes and review its Privacy Statement.
Telstra was also ordered to pay the complainant $18,000 for non-economic loss. In reaching this amount, the Commissioner noted the following evidence from the complainant:
“Since the publication of my details a litigant from a matter decided by me has begun to loiter at and about our home. As my details and those of my partner are suppressed on every public register I infer his knowledge of our address is the White Pages site…
“We have just moved to our home and our enjoyment of it has been rudely interrupted…We both jump whenever the street bell rings. I have applied to be transferred interstate. On moving we will incur moving costs, expenses re sale of our home and costs of resettling… We will both have expenses travelling to visit family and friends as our lives, to date, have been in [omitted]…
“The invasion of and prejudice to my privacy and personal safety can be readily envisioned as arising for others such as victims of crime, women fleeing domestic violence and the like.”
In awarding compensation, the commissioner was guided by severity of the impact of the privacy breach on the complainant (with concerns for his/his partner’s safely leading him to move interstate); the added security threat he/his partner were exposed to; the responsibility of Telstra as an organisation to have appropriate measures in place; and the extent of the publication to a very wide audience in both online and hard copy form.
‘AG’ and Department of Immigration and Citizenship [2013] AICmr 55 (26 April 2013) – Australian Information Commissioner
‘Freedom of information’ – ‘Material obtained in confidence’ – ‘Personal privacy exemption’ – ‘Request for access to documents’ – ‘Visa application’
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant applied to the Department to access specific documents related to his ex-wife. The Department refused access to 11 documents saying disclosure would reveal information provided in confidence and personal information about third parties, of which disclosure would be unreasonable and contrary to public interest.
Issues: Whether the documents were exempt under ss 45 (material obtained in confidence) and 47F (personal privacy exemption) of the FOI Act.
Decision and reasoning: Access refused.
Documents exempt under s 45 included statutory declarations made by the applicant’s ex-wife and other third parties in relation to her application for permanent residency in Australia, as well as a record of interview with the ex-wife and letter sent by a third party. The commissioner was satisfied that disclosure of the documents sought would cause detriment to the applicant’s ex-wife. The Commissioner was satisfied that disclosure of the documents sought would be a breach of confidence and the documents were exempt under s 45.
Documents exempt under s 47F were general correspondence in relation to the applicant’s ex-wife visa applications. The documents contained personal information of the applicant’s ex-wife, the applicant and or third parties, which was of a sensitive and personal nature (including names/other information). Disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, and an agency’s ability to obtain confidential information and to obtain similar information in the future. Giving the applicant access to the documents was contrary to the public interest.
In reaching the decision, Acting Information Commissioner Pirani stated:
“[20] The Department has created Form 1040 for the purposes of a visa applicant providing documentation in relation to family violence matters. This was the form used by the applicant’s ex-wife in support of the visa application. Form 1040 states that the information provided in the form ‘is given and received on the understanding that it will be treated in confidence’.”
‘AF’ and Department of Immigration and Citizenship [2013] AICmr 54 (26 April 2013) – Australian Information Commissioner
‘Freedom of information’ – ‘Material obtained in confidence’ – ‘Request for access to documents’ – ‘Visa application’
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant’s relationship with his former partner ended and she applied for a Subclass 100 visa on domestic violence grounds. The applicant applied to the Department for access to all material in any form relating to his former partner. The Department applied the material obtained in confidence exemption (s 45) and the personal privacy exemption (s 47F) to statutory declarations made by the applicant’s former partner and a competent person in relation to a visa application made by the applicant’s partner under the family violence provisions of the Migration Regulations.
Issues: Whether the documents were, inter-alia, exempt under s 45 (material obtained in confidence).
Decision and reasoning: Access refused. In particular, the Commission was satisfied that the statutory declarations were communicated and received on the basis of a mutual understanding of confidence between the applicant’s former partner and the Department and the competent person. Disclosure “would result in detriment to the authors of the statutory declarations as it would reveal private matters relating to the allegations of family violence. The disclosure of this information may cause a level of embarrassment and discomfort to the authors of the statutory declarations”. The Commissioner was satisfied that unauthorised disclosure of the information contained in the documents would cause detriment to the applicant’s former partner and the competent person.
High Court of Australia
The King v Rowan (A Pseudonym) [2024] HCA 9 (13 March 2024) – High Court of Australia
‘ Appeal against conviction’ – ‘ Defence of duress’ – ‘ Necessity’ – ‘ Threat’ – ‘ Battered women syndrome’
Charges: Incest x 11; act of indecency x 1.
Proceedings: Appeal against conviction and sentence.
Facts: Following a trial by jury in June 2021, the female respondent was found guilty of eleven charges of incest and indecency. The victims were the respondent’s daughters. The prosecution case was that the respondent had committed the offences with her partner, the daughter’s father (‘JR’).
The female respondent, who has a mild intellectual disability (IQ of 70), sought to rely on a defence of duress. Evidence of a forensic psychologist opined the respondent’s behaviour to be consistent with battered women syndrome, and evidence of JR’s controlling behaviour and sexually and physically abusive treatment of the respondent. The respondent was financially and socially dependent on JR. The defence of duress was not left to the jury at the respondent’s trial in June 2021. [26]–[27]
The respondent successfully appealed this ruling in the Court of Appeal. The Court (Kyrou, McLeish and Niall JJA) unanimously held duress should have been left to the jury for their consideration.
Grounds of Appeal: The Crown/prosecution sought leave to appeal the decision of the Court of Appeal on the following sole ground:
•
The Court of Appeal erred in finding that the trial judge had erred in ruling that the respondent could not avail herself of the defence of duress.
Decision and reasoning: Appeal dismissed. The Majority (Gageler CJ, Gordon, Jagot and Beech-Jones JJ) held the Victorian Court of Appeal to have adopted and applied ‘the accepted understanding … of the form of threat necessary to establish duress at common law’, as opposed to the doctrine of duress of circumstances. [53]–[57]
The necessity for the accused to be subject to a threat of infliction of the relevant form of harm if the accused fails to commit the acts that constitute the offence charged has been a consistent feature of the consideration of the common law of duress by intermediate courts of appeal in the common law jurisdictions in this country [37]
Accordingly, the Majority dismissed the appellant’s concern that the Victorian Court of Appeal’s judgment reflected the adoption of the doctrine of duress of circumstances — a relatively recent doctrinal development occurring in England and Wales. The doctrine suggests that pressure on the accused’s will ‘can arise from other objective dangers threatening the accused or others’ and not merely ‘the wrong threats or violence of another’ (R v Martin [1989] 1 All ER 652, 653 (Simon Brown J) [47]. The Majority, however, refused to explores this doctrine as neither party contended the common law of Australia should adopt duress of circumstances. [49]
The Majority further held the evidence adduced before the trial judge — namely, the forensic psychologist’s report — could engender reasonable doubt in a reasonable jury that the prosecution negatived the existence of a threat to inflict the threatened harm if the respondent failed to commit the charged offences:
In this case, the evidence of pervasive violence, intimidation, control and sexual abuse perpetrated by JR on the respondent and their children over a sustained period raised a reasonable possibility that any express or implicit demand JR may have placed on the respondent to join in the sexual abuse of [the daughters] carried with it the implication that serious violence and more severe sexual abuse would be inflicted on the respondent or their children if she refused [62]
In a separate judgment, Edelman J dismissed the appeal, finding there to be a foundation in the available evidence sufficient for the defence of duress to be left to the jury. [113]
Lang v The Queen [2023] HCA 29 (11 October 2023) – High Court of Australia
‘ Appeal against conviction’ – ‘ Murder’ – ‘ Suicide’ – ‘ Unreasonable verdict’ – ‘ People with mental illness’ – ‘ Evidence’ – ‘ Expert testimony’ – ‘ Appeal dismissed’
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: By special leave, Mr Lang appealed an unanimous decision of the Queensland Court of Appeal (McMurdo and Mullins JJA and Brown J) to uphold his conviction following a trial by jury in the Supreme Court of Queensland for the murder of Maureen Boyce.
Mrs Boyce had a sporadic extra-marital relationship with Mr Lang over several years; of which her husband (Mr Boyce) knew. At the time of the incident, Mr Lang and Mrs Boyce were the only two in Mrs Boyce’s apartment. Mrs Boyce suffered from bipolar disorder and longstanding borderline personality disorder [47]. The victim experienced intermittent suicidal ideation, described as a ‘preoccupation with thinking about ending one’s life’ [56].
At trial, Mr Lang accepted only two feasible explanations for Boyce’s death: suicide or murder. A forensic pathologist opined that the injury sustained by Mrs Boyce (a single wound with multiple internal stab wounds) was not self-inflicted.
Grounds of Appeal: Mr Lang appealed the conviction on two grounds:
1.
Unreasonable jury verdict (ie, the verdict of the jury could not be supported having regard to the entirety of the evidence for there is a reasonable possibility that the deceased committed suicide).
2.
Wrongful admission of expert evidence (ie, the evidence of a forensic pathologist, opining that the injury sustained by the victim was not self-inflicted, was wrongly admitted into evidence).
Decision and reasoning: Appeal dismissed, and order confirmed. The High Court unanimously dismissed the first ground of appeal, finding that the jury’s verdict was not unreasonable. Strong and compelling evidence of Mr Lang’s motive, combined with his conflicting testimony to police ([352]-[356]), was sufficient for the jury to exclude the hypothesis that Mrs Boyce died by suicide ([159]–[160]; [158]; [248])
(Kiefel CJ and Gageler J at [2]; Gordon and Edelman JJ at [41], [145]–[185]; Jagot J at [419])
Gordon and Edelman JJ cautioned judicial and prosecutorial/defence care in reasoning Mr Boyce’s death was either a consequence of suicide or murder, in light of the evidence of Mrs Boyce’s mental health, specifically her diagnosis of, and experience with, depression and bipolar disorder (269]-[270]; [284]-[285]):
There is need for great caution in the reasoning that as Mrs Boyce was unlikely to have committed suicide, or more specifically to have committed suicide by the method of stabbing, it is more likely that she was murdered by the appellant. In this case, whoever inflicted the wound, something highly improbable did occur. All of the evidence must be considered, going to the relative likelihood of both hypotheses, in determining whether the prosecution failed to exclude as a reasonable hypothesis that Mrs Boyce committed suicide. In particular, the likelihood of Mrs Boyce deciding to commit suicide cannot be considered in isolation from the likelihood of the appellant deciding to commit murder’ [158]
With respect to Ground Two, the majority (Kiefel CJ and Gageler J at [3], Jagot J at [470]) held that the evidence was admissible. The majority deemed the evidence sufficient to establish that the forensic pathologist’s opinion was based on his expertise.
Gordon and Edelman JJ dissented ([42], [220]–[242]):
‘The problem for Dr Ong’s opinion on this issue, and the reason that it was both inadmissible and of no weight, is that he failed to expose how his expertise was the substantial basis for connecting the facts to which he referred to this opinion’ [234]
BA v The King [2023] HCA 14 (10 May 2023) – High Court of Australia
‘ Appeal allowed’ – ‘ Tenancy/Property’ – ‘ Meaning of 'breaking’
Charges: Breaking etc into any house etc and committing serious indictable offence
Proceedings: Appeal from the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales R v BA [2021] NWCCA 191 (20 August 2021) to acquit.
Facts: The appellant and complainant were in a domestic relationship. They resided together in an apartment, which they occupied as co-tenants pursuant to the Residential Tenancies Act 2010 (NSW). The breakdown of the relationship resulted in the appellant ceasing rent payments and moving out. After forcibly entering the complainant’s apartment, the appellant intimidated and assaulted the complainant (see Kiefel CJ, Gageler and Jagot JJ [4]–[5]).
The trial judge directed a verdict of not guilty on the basis that the accused had a right to enter as a lessee. The Crown appealed this direction, submitting that the trial judge erred in holding that the prosecution was required to establish that the appellant did not have a pre-existing right to enter (as a pre-condition to proof of ‘breaking’). The Court of Criminal Appeal (Brereton JA and Fullerton and Adamson JJ) upheld this appeal and ordered a re-trial.
Grounds of Appeal: The appellant appealed the decision on one ground:
1.
The Court of Criminal Appeal erred in holding that an entry into a dwelling-house pursuant to a pre-existing right to enter will nonetheless involve a “break” if made without the consent of the actual occupant.
Decision and reasoning: Appeal allowed and orders set aside. The majority (Gordon, Edelman, Steward and Gleeson JJ) concluded that the appellant could not break into the apartment by law as he was still a co-tenant, pursuant to the Residential Tenancy Agreement. [42] That is, he possessed a right of exclusive possession over the apartment and therefore had lawful authority to enter it without the complainant’s consent.
This difficult case illustrates the complexities of the concept of “break and entry”, the meaning of which was established in historical circumstances quite different from contemporary society, including when domestic and family violence was generally not treated a criminal [36]
The Crown observed that the complainant was entitled to protect herself from apprehended violence to her person in the security of her own home by refusing to unlock the front door. In a practical sense, this is true. However, the complainant’s power to keep the appellant, as a co-tenant, out of the apartment was not unlimited. The source of the appellant’s liberty to enter the … apartment was the residential tenancy agreement. It was not the complainant’s consent. It was not within the complainant’s power unilaterally to alter the appellant’s liberty to enter. For example, neither the landlord nor the complainant could lawfully change the locks for the premises to exclude the appellant without the appellant’s consent, or without a reasonable excuse [80]
The minority of Kiefel CJ and Gageler and Jagot JJ dissented:
The appellant’s status as a co-tenant under a residential tenancy agreement did not give him a right to forcibly enter the apartment and assault his former partner who resided in the dwelling-house and who had refused him entry [3]
Dansie v The Queen [2022] HCA 25 (10 August 2022) – High Court of Australia
‘Adverse inferences’ – ‘Appeal against conviction’ – ‘Circumstantial case’ – ‘Drowning’ – ‘Evidence’ – ‘Independent assessment of evidence’ – ‘Inference of guilt’ – ‘Murder’ – ‘People with disability and impairment’ – ‘Reasonable hypotheses consistent with innocence’ – ‘Unreasonable verdict’ – ‘Unreasonableness ground’
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: By special leave the defendant appealed the majority decision of the South Australian Court of Criminal Appeal (Parker and Livesey JJ, Nicholson J dissenting) to uphold his conviction following trial by judge alone (Lovell J) in the Supreme Court of South Australia for the murder of his wife. He argued that the trial judge’s verdict could not be supported having regard to the evidence.
Following a stroke in 2005 the female victim was confined to a wheelchair and she could no longer speak. For two years before her death she had been living in a nursing home. The Crown alleged that while on an outing her husband pushed her wheelchair into a pond, resulting in her drowning. Lovell J drew inferences adverse to the appellant’s credit from the appellant's behaviour during interviews with police ‘that his relationship with his wife had changed since she had been living permanently in the nursing home, such that he had come to see her as "taking up his time" and no longer had a caring relationship with her.’ In assessing the appellant’s account of his wife’s death as implausible, Lovell J found support for the prosecution case in circumstantial evidence that he had left his watch, wallet and a spare change of clothes in the car and had done internet searches on funerals in the month before. Lovell J found 2 distinct interconnected motives, financial and relationship, concluding the only rational inference available on the whole of the evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife and therefore his guilt was proved beyond reasonable doubt.
Ground: The majority in the Court of Criminal Appeal erred in how it approached the ground that the verdict was unreasonable or could not be supported having regard to the evidence. In particular, the majority misinterpreted and misapplied the approach required to be taken to that ground in accordance with M v The Queen [1994] HCA 63; (1994) 181 CLR 487 as applied in Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.
Decision and reasoning: Appeal allowed, conviction set aside and the matter remitted for rehearing. Livesey J’s judgment in the Court of Criminal Appeal, with which Parker J agreed, erred. ‘What was missing from this analysis, because it had been eschewed as raising “jury” questions, was any independent consideration of whether the evidence left open reasonable hypotheses consistent with innocence’ [35].
Peniamina v The Queen [2020] HCA 47 (9 December 2020) – High Court of Australia
‘Appeal against conviction’ – ‘Exclusion of provocation’ – ‘Murder’ – ‘Partial defence of provocation’
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: The appeal concerned the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304(1) of the Criminal Code (Qld). Section 304 was amended in 2011 to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is “based on anything” done by the deceased, or anything the accused believes the deceased has done, to end or to change the nature of the relationship or to indicate in any way that the relationship may, should or will end or change. The 2011 amendments placed the burden of proof of the defence on the accused. The issue raised by the appeal is whether in discharging this burden the appellant was required to prove that the provocation was not "based on" anything done (or believed to have been done) by the deceased to change the relationship, notwithstanding that such conduct (or believed conduct) was not the conduct that he claimed had induced his loss of self-control. The appellant killed his wife in circumstances that left it open to find he was angered by a belief that the deceased had been unfaithful and planned to leave him. But the appellant’s case was that, for the purpose of s 304(1), his loss of self-control was ’based on’ the deceased “grabbing [a] knife, threatening [him] with it and cutting his right palm.” The jury found the appellant guilty of murder. On appeal, the Queensland Court of Appeal held that the trial judge was entitled to direct the jury to consider whether the exception set out in s 304(3) excluded the availability of the partial defence under s 304(1).
Grounds of appeal: The Court of Appeal erred in holding that the exclusion of the defence of partial provocation pursuant to the exception in s304(3) was not confined to the provocative conduct of the deceased which the defence relied upon as causative of the appellant's loss of self-control.
Held: Appeal was allowed. The majority (Bell, Gageler and Gordon JJ) found that, correctly understood, s 304(3) excludes the defence of provocation where the accused was in a domestic relationship with the deceased and his/her loss of self-control was induced by anything done (or believed to have been done) by the deceased to change the relationship. Whether the defence does not apply is a question of law.
Here, it was the appellant’s defence that it was the deceased’s conduct with the knife that induced his loss of self-control. There was no evidentiary foundation to suggest that the conduct with the knife was itself a thing done to change the relationship. It was therefore not open to find that the defence was excluded under s 304(3). The trial judge was wrong to direct the jury that, in addition to proving the elements of the defence, the appellant was required to prove that his loss of self-control was not based on anything done by the deceased to change the relationship.
Note: The appellant was subsequently retried and convicted of manslaughter (the sentencing judge found that the jury accepted the partial defence of provocation, and that the appellant’s belief that the victim had been unfaithful was reasonable) and resentenced: R v Peniamina (No 2) [2021] QSC 282 (25 October 2021).
Roy v O’Neill [2020] HCA 45 (9 December 2020) – High Court of Australia
‘Admissibility of evidence’ – ‘Domestic violence order’ – ‘Female perpetrator’ – ‘Implied licence to enter’ – ‘People affected by alcohol misuse’ – ‘Police powers’ – ‘Pro-active policing’ – ‘Whether police had any basis to request to submit to a breath test’ – ‘Whether police have powers to attend the threshold of private property to ensure compliance with a domestic violence order’
Proceedings: Appeal from the decision of the Northern Territory Court of Appeal O'Neill v Roy [2019] NTCA 8 (4 September 2019).
Issue: Scope and limits of implied licence.
Facts: The respondent woman was the subject of a DVO that protected her male domestic partner (Mr Johnson, the victim). The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.
Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.
The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.
The Northern Territory Court of Appeal held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose. The respondent sought special leave to appeal. The application regards the scope of the licence. It was agreed that the content of the implied licence is determined objectively while the infringement of the implied licence is determined by reference to some subjective characterisation of purpose.
Judgment: The Court per Kiefel CJ, Keane and Edelman JJ dismissed the appeal, having earlier granted special leave to appeal subject to noting that the proposed grounds of appeal might be reframed with greater precision HCATrans 43 (20 March 2020). Keane and Edelman JJ observed that the making of a coercive direction is beyond the scope of the licence generally implied by the law to enter the curtilage of a property but that there was no need for a coercive direction here as Ms Roy complied with the request for a breath test. No question of coercion would arise unless and until Ms Roy refused to consent to provide a breath test, and Constable Elliott decided to invoke the power conferred by reg 6(1)(a). [93]
Kiefel CJ held that either of two lawful purposes (to check compliance with a domestic violence order where Ms Roy was known to be invariably intoxicated or to ascertain the state of Ms Roy and Mr Johnson by way of a proactive domestic violence check) was sufficient for the law to imply a licence for Constable Elliott to enter the dwelling unit in question. He was not a trespasser. The evidence of the results of the breath test was admissible.
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 (11 October 2017) – High Court of Australia
‘Crown appeal against sentence’ – ‘Current sentencing practice’ – ‘Instinctive synthesis’ – ‘Manifestly inadequate’ – ‘Sentencing’ – ‘Worst category of case’
Charges: Incest x 2; Sexual penetration of a child under 16 x 1; Indecent assault x 1.
Appeal type: Crown appeal against sentence.
Facts: The charge subject of the appeal was one count of incest. The appellant pleaded guilty, and was sentenced to 3 years and 6 months’ imprisonment. The total head sentence was 5 years’ and 6 months’ imprisonment with a non-parole period of 3 years ([12], [23]).
Section 5(2)(b) of the Sentencing Act 1991 (Vic) provided that the court must have regard to current sentencing practices when sentencing an offender. The Court of Appeal stated that ‘but for the constraints of current sentencing practice’, it would have imposed a longer sentence ([33]).
Issues: Whether the sentence for the charge of incest was manifestly inadequate. In resolving this question, the High Court clarified the relevance of ‘current sentencing practices’ to sentencing.
Decision and Reasoning: The appeal was allowed, and the matter was remitted to the Victorian Court of Appeal for determination of the appeal against sentence ([77]). The High Court (Kiefel CJ, Bell and Keane JJ, Gageler and Gordon JJ agreeing) held that the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it ([2]).
Kiefel CJ, Bell and Hayne JJ stated: ‘the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor’ ([9]).
Further, their Honours stated at [50]:
section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.
Hughes v The Queen [2017] HCA 20 (14 June 2017) – High Court of Australia
‘Meaning of “significant probative value”’ – ‘Tendency evidence’
Charges: Sexual offences against underage girls x 11.
Appeal type: Appeal against conviction.
Facts: The defendant was Robert Hughes, the star of the TV show Hey Dad! The 11 complainants were friends of his daughters or workers on the set. The prosecution sought to adduce the evidence of each of the 11 complainants to support each of the other counts. The prosecution sought to prove tendencies of ‘having a sexual interest in female children under 16 years of age’ and ‘using his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them’ ([3]). The tendency evidence was admitted, and the appellant was convicted ([8]).
Issues: Whether tendency evidence is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. This issue had been the subject of diverging lines of authority between the Victorian and New South Wales Court of Appeal.
Decision and Reasoning: The High Court (4:3) dismissed the appeal.
The majority (Kiefel CJ, Bell, Keane and Edelman JJ) held that the evidence was admissible. The majority identified that there is likely to be a high degree of probative value when (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged ([41]).
The majority endorsed the test for “significant probative value” posed in Ford, that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged ([40]). The majority at [40] added the following qualification:
it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
Gageler, Nettle and Gordon JJ dissented.
Gageler J advocated for a more conservative approach: his Honour argued that admitting all the evidence risks the jury placing too much emphasis on the series of allegations, and not assessing each charge individually ([109]).
Nettle J emphasised that the fact that an accused has committed one sexual offence against a child is not, without more, sufficiently probative of the accused committing another sexual offence against a child ([158]). Something more is required, for example a similarity in the relationship between the alleged victims, a connection between the details and circumstances of each offence, or a system of offending ([158]). Nettle J also reiterated the dangers in admitting tendency evidence ([174]).
Gordon J agreed with Gageler and Nettle JJ and set out her Honour’s own set of principles at [216].
The Queen v Kilic [2016] HCA 48 (7 December 2016) – High Court of Australia
‘Appeal against sentence’ – ‘Appeal allowed’ – ‘Dousing with petrol and setting alight’ – ‘Drug misuse’ – ‘Intentionally causing serious injury’ – ‘Methylamphetamine’ – ‘Pregnancy’ – ‘Sentencing’ – ‘Worst category of offence’
Charges: Intentionally causing serious injury x 1; Using a prohibited weapon x 1; Dealing with suspected proceeds of crime x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The defendant and victim were in a relationship; the victim was 12 weeks’ pregnant with the defendant’s child ([5]). The defendant pleaded guilty to dousing the victim with petrol and setting her alight ([10]). The victim’s injuries were ‘horrendous’ ([11]), and she terminated her pregnancy ([13]). The sentencing judge said that he found it hard to recall a more serious example of the charge in his 38 years of working in criminal law ([14]). The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years ([1]). The Court of Appeal allowed the defendant’s appeal against sentence on the basis that there was ‘such a disparity between the sentence imposed and current sentencing practice’ ([1]).
Issues: Whether the Court of Appeal erred in holding that the sentence was manifestly excessive.
Decision and Reasoning: The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) overturned the Court of Appeal’s decision and reinstated the original sentence. The High Court discussed two aspects of the Court of Appeal’s decision: first, the Court of Appeal employing the term ‘worst category’ of offending; and second, the Court of Appeal’s interpretation of ‘current sentencing practice’.
First, the High Court held that it is an error to describe offences as being within ‘the worst category of cases’ if the offence does not warrant the maximum penalty ([19]), as the term is likely to cause confusion ([17]-[20]).
Second, the High Court remarked that ‘current sentencing practice’ is likely to change over time, ‘current sentencing practices for offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’ [21]. The High Court found that the cases were too few to establish a pattern, one case was 12 years old, and most did not occur in a domestic violence context ([25]-[31]). The High Court said that ‘violence perpetrated in the course of a domestic relationship against the offender's female partner … involve the abuse of a relationship of trust’, and such violence ‘must steadfastly be deterred’ ([28]). This was a distinguishing factor from cases with comparable serious injuries ([28]).
Munda v Western Australia [2013] HCA 38 (2 October 2013) – High Court of Australia
‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Antecedents and personal circumstances’ – ‘Denunciation’ – ‘Deterrence’ – ‘Manslaughter’ – ‘Sentencing’ – ‘Social disadvantage’ – ‘Traditional Aboriginal and Torres Strait Islander punishment’
Charge/s: Manslaughter
Appeal Type: Appeal against sentence.
Facts: The appellant, an Aboriginal man, pleaded guilty to the manslaughter of his de facto spouse. He was sentenced to five years and three months’ imprisonment with a non-parole period of three years and three months’. The DPP appealed to the Court of Appeal on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the appeal and resentenced the appellant to seven years and nine months’ imprisonment with the same parole eligibility conditions. The appellant and the deceased had been in a relationship for approximately 16 years. On the day the deceased was killed, the appellant and the deceased spent the afternoon at a local tavern and both became intoxicated. After returning home, an argument ensued and the appellant assaulted the deceased in a prolonged and brutal way. He threw the deceased about the room, rammed her head into walls and repeatedly punched her on the face and head. There was a history of significant domestic violence in the relationship, including a conviction for grievous bodily harm for which the appellant was sentenced to 12 months’ imprisonment (conditionally suspended) as well as a conviction for common assault. The appellant was subject to a lifetime violence restraining order in favour of the deceased which prohibited him from having any contact with her. However, this order had been ignored by both parties and the relationship had continued.
Issue/s: Some of the issues concerned –
a.
Whether the Court of Appeal incorrectly applied the principles which govern manifest inadequacy of a sentence.
b.
Whether the Court of Appeal erred by failing to pay sufficient regard to the appellant’s antecedents and personal circumstances, in particular the systemic deprivation and disadvantage (including endemic alcohol abuse which is prevalent in Aboriginal and Torres Strait Islander communities) that the appellant faced.
Decision and Reasoning: The appeal was dismissed by majority (Bell J dissenting).
a.
The joint majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) found no error in the Court’s approach to the issue of manifest inadequacy. In the Court of Appeal, McLure P made express reference to the gross over-representation of Aboriginal people in the criminal justice system (particularly in relation to manslaughter) which is directly related to alcohol and drug abuse. Her Honour also made reference to various ‘weighting errors’ in the sentencing at first instance. The Court held that there was no error in this approach. See in particular at [37], where the joint majority noted ‘her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate".
See also McLure P’s statement quoted at [41] – "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The joint majority approved these remarks at [42] – ‘The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong.’
b.
The appellant did not submit that ‘Aboriginality per se warrants leniency’ (see at [47]). Rather, the appellant contended that social and economic issues commonly associated with Aboriginal communities affected the appellant and that these should have been treated as mitigating factors. He also contended that he was likely to receive traditional Aboriginal and Torres Strait Islander punishment when released from prison and that he was ‘willing, and indeed anxious’ (see at [49]) to subject himself to this payback. He submitted that this should have received greater significance as a mitigating factor.
In dismissing these arguments, the Court noted that while mitigating factors such as social disadvantage need to be afforded appropriate weight in sentencing, this cannot result in the imposition of a penalty which is disproportionate to the gravity of the offending. In particular, the Court noted at [53] – ‘To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’ and ‘Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.’
The Court also addressed the argument that general deterrence has less significance in relation to crimes which are not premeditated in the context of social disadvantage. In dismissing this assertion, the Court noted that the criminal law is not limited to the ‘utilitarian value of general deterrence’ and stated that the obligation of the State is ‘to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’ (see at [54]). Furthermore, the gravity of the offending in this case was extremely high - see at [55] –
‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’
In relation to the appellant’s alcohol addiction, McLure P held that this factor would increase the weight to be given to personal deterrence and community protection. The joint majority of the High Court agreed and noted that the fact the appellant was affected by an environment of alcohol abuse should be taken into account in assessing personal moral culpability, but this has to be balanced with the seriousness of the offending. See further at [57] where the majority of the High Court said– ‘It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.’
In relation to the relevance of traditional Aboriginal and Torres Strait Islander punishment, the High Court’s disposition was that the appellant’s willingness to submit to this punishment was not a relevant consideration in sentencing. However, the first instance judge did take it into account, which was not challenged in the Court of Appeal. While the joint majority of the High Court did not offer a conclusive opinion, they noted that the courts cannot condone the commission of an offence or ‘the pursuit of vendettas’ and held that the appellant did not suffer injustice because the prospect of traditional punishment was given only limited weight (see at [61]-[63]).
Bell J dissented. Her Honour held that it was open to the primary judge to reach the sentence that he did, based on comparable authorities. Bell J was also critical of the practice of giving too much weight to the maximum penalty, given the wide variety of circumstances in which manslaughter convictions can arise. Her Honour stated that a sentence well short of half the maximum penalty does not of itself give rise to legal error.
Roach v The Queen [2011] HCA 12 (4 May 2011) – High Court of Australia (appeal from Queensland Court of Appeal)
‘Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Probative value’ – ‘Propensity evidence’ – ‘Relationship evidence’
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against conviction.
Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides that ‘[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.
Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.
The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that the rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).
Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.
The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:
‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].
The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:
[45] In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.
[47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.
[48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) – High Court of Australia
‘Adjournments’ – ‘Amendment’ – ‘Appeal’ – ‘Case management’ – ‘Pleadings’ – ‘Practice and procedure’
Hearing: Appeal against decision to allow amendments to statement of claim.
Facts: ANU applied for an adjournment at trial to make substantial amendments to its statement of claim against Aon. The adjournment was granted and the primary judge allowed the application to amend the statement of claim. Aon appealed against the decision.
Decision and Reasoning: This case did not concern family violence but contained a number of relevant statements regarding adjournments. French CJ referred to the decision in Sali v SPC Ltd, which concerned the refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, the High Court held there ‘that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’’ (see [26]). Brennan, Deane and McHugh JJ went on to say:
‘What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources’.
Toohey and Gaudron JJ dissented in the result but acknowledged that:
‘The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard’.
In the present case, French CJ stated at [27]:
‘The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn’.
Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
‘Battered woman syndrome’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Expert testimony - psychologist’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Self-defence’
Charge/s: Murder
Appeal Type: Appeal against conviction.
Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at [4]). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at [50]).
The psychologist outlined the general characteristics of battered women as follows (at [51]):
1.
they are ashamed, fear telling others of their predicament and keep it secret.
2.
they tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocussed.
3.
they have an increased arousal and become acutely aware of any signal of danger from their partner.
4.
they may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
5.
in severe cases, they may live with the belief that one day they will be killed by the other person.
Issue/s: Some of the issues concerned –
1.
Provocation - Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of provocation’ (see at [155]).
2.
Self-defence – Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of self-defence’ (see at [155]).
Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.
Gaudron and Gummow JJ:
“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at [53])
“…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at [55])
“So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at [56])
“…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at [60])
Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at [239]). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.
McHugh J did not make any comments on BWS.
Kirby J:
His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at [159]).
His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at [161]).
Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at [161]).
Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at [167]).
M v M (1988) 166 CLR 69; [1988] HCA 68 (8 December 1988) – High Court of Australia
‘Allegations of sexual abuse’ – ‘Custody order’ – ‘Risk’ – ‘Test to be applied’ – ‘Unacceptable risk’
Proceedings: Appeal against custody order.
Facts: The trial judge made an order giving the wife guardianship and custody of the child. The wife alleged that the father had sexually abused the child and that the child’s welfare would be put at risk in allowing the father custody. The trial judge was not satisfied that the father had abused the child. However, His Honour considered that there was a possibility that the child had been sexually abused by the father. Accordingly, in the interests of the child, His Honour held that he should eliminate the risk of such abuse by denying access to the father. The father appealed this decision.
Issue/s: What is the correct approach in dealing with sexual abuse allegations and unacceptable risk?
Reasoning/Decision: The appeal was dismissed. The approach to be taken in these matters is not one of competing rights of the parents or ever purely a finding for or against either based on the evidence in support of the allegations. The approach is to determine on all of the evidence what is in the best interests of the child.
The Court concluded and held at [25]:
‘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”, “an element of risk” or “an appreciable risk”, “a real possibility”, a “real risk”, and an “unacceptable risk”. 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’.
With regards to the consideration of risk, it is in “achiev[ing] a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. A finding of sexual abuse need not be made to make a finding of unacceptable risk.
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 (17 June 1970) – High Court of Australia
‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Relationship evidence’ – ‘Relevance’ – ‘Statements made by deceased's wife charging accused with desire to kill her’
Charges: Murder.
Appeal Type: Application for special leave to appeal against conviction.
Facts: The facts of this case were summarised concisely by Martin CJ (with whom Pullin JA and Hall J agreed) in O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) [DT1] at [26] as follows -
‘[T]he appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused.
Issue/s:
a.
Whether the statements made by the appellant’s wife were admissible.
b.
If they were admissible, whether they should have been excluded by the trial judge because their probative value was outweighed by the potential prejudice to the accused.
Decision and Reasoning: The Court unanimously dismissed both grounds of appeal and held that the evidence was admissible.
a.
Barwick CJ noted at [3] that, ‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.’ Evidence of the ‘nature of the current relationship between the applicant and his wife’ was relevant to the appellant’s guilt. Evidence of a ‘close affectionate relationship’ could be used by the jury to conclude that the appellant was not guilty. Evidence of hostility in the relationship could be used by the jury to conclude that the appellant’s argument that the shooting was accidental lacked credibility. His Honour did concede that if the deceased’s statements ‘had not been part of the evidence of a quarrel of a significant kind’ ([8]), they would have been inadmissible. However, in this case the statements were part of a ‘quarrel’ between the parties and were indicative, ‘of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached’ (see at [8]). More generally, his Honour concluded that ‘evidence of the relations of the accused with others’ is admissible not only in cases where it establishes motive, though this may be the most common way in which it is used. This type of evidence could also be admissible if it explains an ‘occurrence’ or assists in the choice between two explanations of an ‘occurrence’ because such evidence satisfies the test of relevance (see at [7]).
Menzies J (with whom McTiernan J and Walsh J agreed) reached the same conclusion –‘To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife’(see at [4]).
b.
Barwick CJ held that while the deceased’s statements were damaging to the appellant, they were not prejudicial, and showed, ‘the depths to which the relationship of the parties, as husband and wife, had sunk’ (see at [9]).
Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34 (30 June 1938) – High Court of Australia
‘Civil cases’ – ‘Evidence’ – ‘Standard of proof’
Proceedings: Petition for divorce on the ground of adultery.
Facts: The applicant sought a dissolution of his marriage to his wife on the ground of her adultery.
Issue/s: What is the standard of proof required in civil matters?
Decision and Reasoning: In explaining the civil standard of proof, Dixon J stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a mere mechanical comparison of probabilities’. His Honour went on to explain that the standard is one of ‘reasonable satisfaction’:
‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency’.
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) – Family Court of Australia (Full Court)
‘Application to adduce further evidence re criminal history and family violence’ – ‘Family law’ – ‘Fatal strangulation’ – ‘Hague convention’ – ‘History of family and domestic violence’ – ‘Intolerable situation’ – ‘Non’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Systems abuse’ – ‘Victims as (alleged) perpetrators’
Issue: Application for leave to appeal, application to adduce further evidence re criminal history and family violence.
Grounds:
•
The primary judge erred in the application of the grave risk of physical or psychological harm defence (Ground 1);
•
The primary judge erred in the finding that there is no immediate prospect of a resumption of the parental relationship (Ground 2);
•
The judge erred by assuming that the current protection orders in New Zealand would remain in place (Ground 3);
•
The intolerable situation defence applies (raised by the Court).
Facts: The appellant fled New Zealand with the assistance of New Zealand Police with her two children, in mid-2019 she believed the children’s father posed a real risk to her and the children. The father had an extensive criminal history which demonstrated "a pattern of increasingly serious charges against the father (not all of which resulted in convictions), domestic violence offences and breaches of bail and parole" [29]. The mother gave evidence of her intention to remain separated from the father but argued that the extensive history of repeated reconciliations between them meant the court should not have accepted that her intention to remain separated would ensure the children’s safety if they were returned to New Zealand. The father invoked the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Abduction Convention’) to secure the children’s return [1]. The application for recovery was made by the Secretary of the Department of Communities and Justice (NSW) as the "Central Authority" under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"), an Independent Children’s Lawyer (ICL) was appointed and argued at first instance against the Hague Convention Application being granted, but the judge accepted the mother’s evidence she would not resume cohabitation with the father and the application was granted. The mother sought leave to appeal and applied to lead more evidence of the father’s criminal history and family violence history. The ICL did not participate in the application for leave to appeal despite the order for their participation remaining on foot.
Judgment: Leave to appeal granted. Appeal allowed on basis of the intolerable situation defence (not raised as a ground of appeal but by the Court).
Both Ground 1 and Ground 2 contended that the primary judge erred in finding that there is no immediate prospect of a resumption of the parental relationship. This error was based on the judge’s acceptance "of the mother’s evidence that she had permanently separated from the father and had taken necessary steps to keep him away from her and the children" [51]. In support of these contentions, the mother submitted that the primary judge should have considered her history of separation and reconciliation with the father and instead concluded that it was thus unsafe to assume she would cooperate with attempts to keep her and the children safe. The Court noted that this position was inconsistent with the evidence submitted by the appellant at trial and concluded that "given the manner the case was run at trial" the grounds could not succeed [534].
Ground 3 contended that the primary judge erred in assuming that the protection orders against the father in New Zealand would remain in place. As the mother did not submit as part of her case at trial that she would agree to the father’s application to discharge these protections orders being granted, nor was there evidence that the father’s application had any prospect of success, the third ground was "not made good" [55].
Ryan, Aldridge and Watt JJ all, in separate judgements, granted leave and allowed the appeal after considering the intolerable situation defence under reg 16(3) of the Family Law (Child Abduction) Regulations 1986 (Cth). It was noted that the father’s previous convictions and violence, the pattern of parental separation and reconciliation, and the totality of the circumstances in which the children would find themselves if they were to return to New Zealand were unsafe and intolerable [63].
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the matter: [78] ‘We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.’
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Stringer & Nissen (No. 2) [2019] FamCAFC 185 (23 October 2019) – Family Court of Australia (Full Court)
‘Appeal’ – ‘Failure to consider evidence relevant to the child's best interests’ – ‘Parenting orders’ – ‘Relocation’
Case type: Appeal against interim parenting orders as to with whom the child, X, should live.
Facts: The parties separated in 2015 when X was around 6 months old. In 2015, the parties entered into a parenting plan. In early 2019, the mother and X moved from Town A to live in Sydney. The mother did not tell the father she was leaving Town A because she was afraid of what he might do to her or X, and said that, during the relationship, the father was aggressive and abusive towards her. After leaving Town A, the parties made arrangements for X to spend time with the father until March 2019. At the end of that time, the father refused to return the child to the mother. The primary judge ordered that the parties have equal shared parental responsibility of X and that if the mother returns to live in Town A, then X will live with her, but that if the mother does not return to Town A, then X will live with the father. At the heart of the Court’s decision was the denunciation of the mother’s unilateral decision to move away from Town A.
Issue: Whether it was in the best interests of X to live with his mother in Sydney or with his father in Town A?
Held: The Full Court of the Family Court of Australia allowed the appeal against the orders of the primary judge. Their Honours found that the primary judge did not engage in a careful consideration of the evidence, as he failed to take into account the mother’s evidence that she did not tell the father she was moving because she feared him. The Full Court was also perplexed as to why the father’s unilateral decision not to return X to his mother was not denounced in the same way as the mother’s unilateral decision to relocate without telling the father. The Full Court also found that the primary judge misapprehended the nature and extent of the family violence and misapplied legal principles.
At [45], the Court found:
“The allegations of family violence, together with the mother’s concern as to the father’s alcohol abuse were matters on which she relied to demonstrate that it would not be in the child’s best interests to live with the father and his Honour ignored a fundamental integer of the mother’s case which was that there was a risk to the child from being exposed to family violence. The orders she sought for time would however, provide for the maintenance of the child’s relationship with the father while he remained living with his mother. His Honour’s approach was erroneous in principle and to the facts.”
Keating & Keating [2019] FamCAFC 46 (21 March 2019) – Family Court of Australia (Full Court)
‘Contributions’ – ‘Domestic violence’ – ‘Kennon principles’ – ‘Property settlement’
Case type: Appeal.
Facts: The husband was a tradesman and operated a business, called the Keating Group, through a complex trust and corporate structure. The Group traded throughout the marriage, and since the parties separated in 2010, the husband managed and operated it. Its value and dramatic increase in the husband’s director loan account to the Group were key issues in the proceedings. The primary judge separated the parties’ property into 2 pools: non-superannuation assets and property and liability, and superannuation. The non-superannuation property was worth $1,784,854; however as a result of the husband’s indebtedness to the Group and expenses associated with a failed taxation minimisation scheme, liabilities exceeded assets by $804,805. The husband’s and wife’s contributions were assessed at 70% and 30% respectively. Their superannuation contributions were assessed as equal. No adjustment was made under section 75(2) of the Family Law Act 1975 (Cth).
The wife was ordered to retain her personal possessions, her bank account, car and $12,000 previously received by way of partial property settlement. She also received a superannuation split of $119,000 and 50% of any payment received as a result of a pending class action relating to the tax scheme. The husband retained the Group, which had an annual turnover of $4 million and which provided him with a superior standard of living. He remained personally liable for his loan account and debts due in relation to the tax minimisation scheme.
The wife alleged that she was subject to family violence at the hands of the husband during and after their relationship. Her evidence included that the husband broke her nose, beat her on an overseas trip until she passed out, and that she suffered serious bruising and broken ribs. The primary judge dismissed all incidents of violence towards the wife except that which resulted in her broken wrist, apparently because her evidence was uncorroborated ([41]).
Issue: The wife appealed the property settlement orders on 7 grounds. Relevant grounds of appeal include that:
•
The primary judge failed to give adequate reasons for his conclusions and to sufficiently engage with the wife’s case (Grounds 1 and 5).
•
The wife claimed an adjustment, which the primary judge refused to make, arising from family violence under the ‘Kennon’ principles (Ground 4).
Held: The Full Court allowed the appeal against the property order.
Grounds 1 and 5.
At [23]-[24], Ainslie-Wallace and Ryan JJ held –
‘[H]is Honour went no further than to say that the wife was ‘aware’ that the investment scheme was unsuccessful…The issue was whether she knew of and supported the husband’s investment in the scheme to the extent that she should shoulder half of the resulting debt. In the result, his Honour’s decision to fix both parties with responsibility for the debt was made ‘…because [the debt] actually exists…’
‘His Honour’s finding that the wife was ‘aware’ that the investment scheme failed falls considerably short of engagement with the reasons why the wife said she ought not to be fixed with joint responsibility for the debt. The same applies to the finding that the debt ‘actually exists’. Although parties would ordinarily be expected to take the good with the bad, there was no active engagement by the primary judge with the wife’s case that the husband should bear sole responsibility for the debt and why.’
Given the primary judge’s failure to engage with the wife’s case on these matters, the Court held that Grounds 1 and 5 had been established.
Ground 4.
The wife argued that she was exposed to significant family violence by her husband during and after the relationship. She sought an adjustment under the principle in Kennon & Kennon (1997) FLC 92-757 where it was held that family violence, which is demonstrated to have a significant adverse impact upon one party’s contributions to a marriage, is a relevant consideration to the assessment of contributions within section 79. According to the Court in Kennon, it is necessary to adduce evidence to prove the incidence and effect of domestic violence, and to enable the court to quantify the effect of that violence upon the parties’ capacity to ‘contribute’ under section 79(4) ([37]). The Court in Kennon also stated that family violence will be relevant if the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party ([36]).
However, at [33] the Full Court held –
‘The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship.’
The Court went on to state that Kennon should not be interpreted as laying down a precise rule that ‘post-separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant’. The reference to ‘quantification’ in Spagnardi & Spagnardi [2003] FamCA 905 appeared ‘to elevate the need for an evidentiary nexus or ‘discernible impact’ between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence.’ Their Honours stated that perhaps the use of the word ‘quantification’ in Spagnardi was ‘infelicitous’ when in truth, the Court ‘was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions’ ([39]). Their Honours also affirmed the well-settled view that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted ([42]).
The Court could not conclusively determine whether the primary judge’s decision not to make a ‘Kennon’ type adjustment was wrong due to the absence of a transcript ([43]). While Kennon appears to remain sound law, its considerations apply to ‘a relatively narrow band of cases’ ([67]).
Atkinson v Atkinson [2017] FamCAFC 266 (13 December 2017) – Family Court of Australia (Full Court)
‘Allegations of domestic and family violence’ – ‘Alleged false allegations of child abuse’ – ‘Appeal against recovery order’ – ‘Interim parenting orders’ – ‘Recovery order’ – ‘Separation’ – ‘Systems abuse’
Proceedings: Father’s appeal against interim parenting orders, including a recovery order.
Facts: The mother applied for, and was granted, a recovery order for the return of the child after the father failed to return the child to the mother following fortnightly weekend contact. The father argued that the mother physically abused the child and the mother alleged that the father engaged in a pattern of emotional abuse such as to constitute family violence by persistent allegations that the mother physically abused the child.
Issue: Whether the primary judge erred in failing to appoint a single expert before making a recovery order.
Judgment: Appeal dismissed. Interim orders that the child reside with the mother.
In finding that the primary judge did not err in failing to appoint a single expert before making interim orders including a recovery order after the father retained the child Ryan J noted (Johnston and Thackray JJ agreeing):
[49] …the mother’s application was for a recovery order after the father retained the child. The application demanded a prompt response and in my view an adjournment for in all probability many months would not have been in the best interests of the child.
Ralton and Ralton [2017] FamCAFC 182; (7 September 2017) – Family Court of Australia (Full Court)
‘Appeal’ – ‘Application of domestic and international human rights law under the family law act 1975 (cth)’ – ‘Bias’ – ‘Children’ – ‘Costs’ – ‘Family law’ – ‘No merit’ – ‘Procedural fairness’ – ‘Self-represented litigant’ – ‘Unsuccessful application for stay of proceedings’ – ‘Weight of evidence’
Matter: Mother’s appeal against parenting orders that the children B and C reside with the father, he have sole parental responsibility and the mother have limited supervised contact, to progress to alternate weekends and half the school holidays.
Facts: Earlier orders made in 2010 had provided for the children to reside with the mother and have contact with the father. In 2014 and 2015 the children only spent time with the father intermittently. B, in particular, became reluctant to spend time with the father, and in 2016 twice avoided contact by running away from school. The trial judge found that the children were “at risk of longer-term psychological harm in the mother’s household” and would not have any real relationship with their father if they remained in the mother's care [4]. The Independent Children’s Lawyer (‘ICL’) supported the father’s position.
Grounds: The mother’s grounds of appeal were “difficult to follow and understand” and her submissions “did not seek to explain why the primary judge erred but were rather a lengthy and detailed assertion of wrongdoing by his Honour.
Decision: ICL granted leave to appear. No error established and appeal and applications in an appeal dismissed. Mother to pay the father’s costs of the appeal.
Parental alienation was considered in circumstances where the mother appealed against parenting orders on the basis that orders had been made with insufficient consideration of the alleged family violence of the father and the expert witnesses were biased (the Full Court - Bryant CJ, Strickland & Aldridge JJ).
[187] The primary judge was at pains to avoid the use of labels such as “parental alienation” or “enmeshment”. Speaking of the Associate Professor’s evidence, which included a discussion of these concepts, his Honour said:
The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests. (quoting from the primary judgment at [70])
[192] … There is therefore no need for us to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
Saska & Radavich [2016] FamCAFC 179 (1 September 2016) – Family Court of Australia (Full Court)
‘Definition of family violence in section 4ab’ – ‘Key statutory provisions in the family law act’ – ‘Meaning of ‘family violence’’ – ‘Mother a family member by operation of section 4(1ab)’ – ‘Parenting orders’ – ‘Presumption of equal shared parental responsibility’ – ‘Section 61da’ – ‘Whether mother a member of the family of the father within the meaning of section 4ab’
Proceedings: Appeal - parenting orders.
Facts: The trial judge made final parenting orders which included an order that the mother have sole parental responsibility for the child of the mother and the father. In making these orders, the trial judge found that the father’s behaviour towards the mother amounted to ‘family violence’ within the meaning of s 4AB of the Family Law Act. As a result of this family violence, the presumption of equal shared parental responsibility for the child in s 61DA of the Act did not apply: s 61DA(1). Further, even if the presumption had applied, the trial judge held that it would still not have been in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(4). The father appealed against these orders.
Issue/s: Some of the grounds of appeal included –
•
The trial judge erred in finding that the father’s behaviour towards the mother constituted family violence within the meaning of s 4AB(1) because the mother was not ‘a member of the [father’s] family’ as defined in s 4(1AB). Accordingly, the trial judge erred in finding that the presumption of equal shared parental responsibility was rebutted because the father had not engaged in family violence: s 61DA(2)(b).
•
The trial judge erred in finding in the alternative that the presumption was rebutted because equal shared parental responsibility was not in the best interests of the child: s 61DA(4).
Reasoning/Decision: The appeal was dismissed. The Full Court held that the father’s appeal was always doomed to fail because it rested on a misconceived interpretation of s 4(1AB) of the Act. Relevant to the proceedings, the combined effect of s 4(1AB)(e) and s 4(1AC) was that the child was a member of the father’s and a member of the mother’s family. It was never in issue in the proceedings that the mother resided with the child at the material times, the child being a member of the father’s family. Thus, by operation of subparagraph (h) of s 4(1AB), the mother was a member of the father’s family. Further, within the meaning of subparagraph (i) of s 4(1AB) each of the mother and the father, respectively and alternatively, ‘is or has been a member of the family of a child of [the other]’. Accordingly, the father had engaged in family violence against ‘a member of his family’ (see [17]-[24]).
The father’s contention that the trial judge erred in rebutting the presumption of equal shared parental responsibility because the father had committed family violence was therefore dismissed. As demonstrated above, the contention that there was no family violence in this case because the mother was not a member of the father’s family was based on an erroneous reading of the Act.
Additionally, while the trial judge was correct to apply s 61DA(2) and conclude that the presumption did not apply, it was also well within her discretion to conclude that even if the presumption had applied, it would have been rebutted in the child’s best interests: s 61DA(4).
The father also argued that the mother wasn’t fearful, and so the finding of family violence was erroneous. For this argument to be effective, the words of s 4AB(1) would need to be read conjunctively, not disjunctively, as the section is worded. The family member being ‘fearful’ is one possible manifestation of family violence, but is not necessary to make a finding of family violence.
Salah & Salah [2016] FLC 93-713; [2016] FamCAFC 100 (17 June 2016) – Family Court of Australia (Full Court)
‘Ignoring allegations of family violence’ – ‘Interim parenting orders’ – ‘Treatment of issues of family violence’
Appeal type: Appeal against interim parenting orders.
Facts: At the contested interim hearing, the mother made allegations of significant family violence perpetrated by the father in the presence of the children. In light of this and one of the children’s epilepsy and developmental delay, she sought an order directing the father’s care of the children to be supervised by another adult. The father disputed the allegations of family violence. In making interim parenting orders, the trial judge said (see [23]-[27]):
‘The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.
[…]
Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out’.
Issue/s:
1.
The trial judge made several errors of principle in considering the issues of family violence namely, His Honour erred in his consideration of the family violence issues, failed to have regard to s 61DA(3) of the Act and failed to follow the legislative pathway in his determination of the interim issues.
2.
The trial judge failed to take into account relevant facts.
3.
The trial judge failed to give adequate reasons for his determination.
Reasoning/Decision: The appeal was allowed. The Court noted at [36] that, ‘[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial’.They continued at [39]-[40]:
‘In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
…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.
The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH)’.
The Court held that while the trial judge was correct in stating that, at that point, he could not make findings on the disputed allegations, he erred by ignoring the allegations of family violence and finding that the presumption of equal shared responsibility applied. His Honour further erred in his treatment of the allegations of family violence by suggesting with that comment ‘given no other evidence’ that the mother’s allegations required corroboration or objective support and erred in incorrectly referring to the civil standard of proof (see [41]-[45]). Grounds two and three were also successful for similar reasons (see [60],[65]).
Holsworth & Holsworth [2016] FamCAFC 98 (9 June 2016) – Family Court of Australia (Full Court)
‘Children’ – ‘Interim orders’ – ‘Physical violence and harm’ – ‘Where the trial judge could not make findings on allegations of family violence until the evidence was properly tested at trial’
Proceedings: Appeal of interim procedural orders in relation to parenting proceedings
Facts: The parties reached agreement in November 2010 that the children live with the mother and spend time with the father. Almost a year later the mother was “psychiatrically unwell” and the children began to live with the father and spend time with the mother. After many years of litigation, including the appointment of an ICL, one child had returned to live with the mother and was to spend time with the father. The matter was listed for trial and an updated family report was ordered.
One ground of appeal was that “[t]he trial judge failed to give sufficient weight to the mother’s evidence of family violence and did not accept the mother’s evidence of it because she had not produced “third party evidence”.
Issues: In the context of apprehended bias, was the trial judge correct in not determining issues of family violence at an interim hearing?
Reasoning/Decision: The Full Court found that the mother’s assertions regarding the trial judge’s consideration of the evidence of family violence were “unsupported by the transcript”. In addition, her Honour was correct in not making findings “until such time as the evidence had been tested” – something which would happen at the final hearing of the matter. Despite the grounds purportedly being a challenge to the trial judge’s “failure to recuse herself”, it was apparent to the Full Court that they were really a complaint that the trial judge did not accept the mother’s evidence, including that of family violence, at the interim stage of proceedings.
The appeal was dismissed.
Baghti & Baghti and Ors [2015] FamCAFC 71 (5 May 2015) – Family Court of Australia (Full Court)
‘Evidence’ – ‘Expert testimony’ – ‘Family reports’ – ‘Findings of fact in relation to allegations of family violence’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Weight on the expert evidence’
Proceedings: Appeal against parenting and property orders
Facts: There is one child of the marriage. The parties married in 2002 and separated in late 2008/ early 2009, continuing to live under the same roof until November 2009. The mother claimed that up until November 2004 she was the primary carer for the child and the father worked. In November 2004 the mother went back to work and the father became the primary care-giver for the child. The child had health issues which would require visits to the hospital. The father consulted medical practitioners about the child’s weight and would weigh the child after time in the mother’s care. Around “September 2009 the husband arranged for ongoing surveillance of the wife”. In October the mother became aware of the surveillance and asserted stress and digestive issues as a result. This also affected the child. A consultant psychiatrist provided a Family Report to the Court on 9 January 2011. This report included discussion of risk associated with physical violence during the marriage in addition to the conflict and hostility between the parties in association with the child’s medical issues. It also included risk to the child in regards to the father’s obsession with “health and welfare”.
Issues: Whether the judge erred in attributing significant weight to the family report.
Whether the judge should have made a finding in relation to family violence.
Reasoning/Decision: Despite the father having opportunity to cross-examine the report writer at trial, and opportunity to raise his concerns about the report with the writer, and opportunity for the father to submit to the judge that the report be given little weight, no such cross-examination was forthcoming at trial, and no like submission was made to the trial judge. It was determined that not only was the judge entitled to rely on the expert report as he did, the father was not entitled to make his complaint about its handling to the appeal court.
In the “background facts” of the judgment the trial judge discussed allegations of family violence made by the mother but made no finding that the violence, as alleged, had occurred. The trial judge was not in error by not making findings – “A court need only determine those facts that are necessary for the determination of the issues between the parties”.
Slater & Light [2013] FamCAFC 4 (5 February 2013) – Family Court of Australia (Full Court)
‘Children’ – ‘Emotional and psychological abuse’ – ‘Notice of risk’ – ‘Parenting orders and impact on children’
Case type: Appeal against final parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, Magistrate Coates made interim parenting orders. The father unsuccessfully appealed against those interim orders (see Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011)).
Subsequently, final orders were made providing that the mother have sole parental responsibility for the children, that the children live with the mother and spend supervised time for two hours per fortnight with the father. The order for supervised time was for an indefinite duration (see Slater & Light [2011] FMCAfam 1021 (22 September 2011 ) ([1]).
Magistrate Coates’ orders turned on a finding that the father posed an unacceptable risk of emotional harm to the children ([2]). The emotional harm was said to take the form of imposing on the children negative views of their mother, alienating the children from their mother and a chaotic regime for the children ([22]).
Issues: Whether Magistrate Coates erred in:
•
finding that there was an unacceptable risk of harm to the children; and
•
ordering supervised time of an indefinite duration ([2], [29]).
Decision and Reasoning: The appeal was partially allowed. The Court held that the Magistrate did not err in finding that the father posed an unacceptable risk of harm to the children ([69]). This conclusion was open on the psychiatric reports
However, the Court found that the Magistrate erred in ordering an indefinite supervision order, when this was not requested by either the mother or the Independent Children’s Lawyer ([69]-[70]).
The issue of the time and the circumstances in which the father should spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Coates (see Order 3).
McGregor v McGregor (2012) FLC 93-507; [2012] FamCAFC 69 (28 May 2012) – Family Court of Australia (Full Court)
‘Contact proceedings’ – ‘Emotional and psychological abuse’ – ‘Failure to properly admit academic opinions as evidence’ – ‘Information sharing’ – ‘Opinion evidence’ – ‘Parenting orders and impact on children’ – ‘Parties unaware of use of material’ – ‘Reliance upon academic literature as basis for orders’
Appeal type: Appeal against parenting orders and property orders.
Facts: Prior to the trial, the three children of the relationship lived with the father. In parenting and property proceedings, the Federal Magistrate concluded that the father had been physically and verbally aggressive to the mother and that the father had alienated the children from the mother. The Federal Magistrate accordingly made orders for the children to live with their mother. In reaching this conclusion, the Federal Magistrate referred extensively to external literature. The father appealed against this decision.
Issue/s: One of the grounds of appeal was that the magistrate failed to accord the husband natural justice/procedural fairness because the husband was not given the opportunity to cross-examine, respond to or introduce contrary evidence in relation to a number of academic opinions relied upon by the magistrate in reaching his decision.
Reasoning/Decision: The appeal was upheld and the matter remitted for hearing. The Full Court held that the Federal Magistrate placed considerable reliance on the academic literature on the topic of alienation of children. None of it was introduced into evidence as opinion evidence, and accordingly no consideration was made by the Federal Magistrate as to whether to exclude the evidence and, if not, to consider what weight to give it. Accordingly, none of this evidence was able to be tested by the father nor was it the subject of submissions or contrary evidence. There was therefore a failure to afford the father natural justice and procedural fairness (see [118]-[121]).
Baranski & Baranski (2012) 259 FLR 122; [2012] FamCAFC 18 (10 February 2012) – Family Court of Australia (Full Court)
‘Children’ – ‘Procedural fairness’ – ‘Property settlement’ – ‘Where the court was not persuaded that the learned federal magistrate erred in his approach to the wife's claim for a 'kennon type adjustment'’ – ‘Where undisturbed findings of fact made by the learned federal magistrate amply supported the conclusion he reached in relation to this issue’ – ‘Whether the learned federal magistrate impermissibly relied upon extrinsic material and failed to accord the parties procedural fairness’
Appeal type: Appeal against parenting and property orders.
Facts: The parties had twins. Serious incidents of family violence occurred during their relationship and after separation. At the hearing of the trial, the father was in prison having been convicted of aggravated assault on the mother. Mother granted sole parental responsibility and the children to live with her. The father was to have supervised time (these orders were interim). Property – 25% adjustment re Kennon.
Issues: In making findings regarding family violence and its effect on the mother and children, did his Honour impermissibly take account of extraneous material? Did his Honour err in making a “Kennon type adjustment”?
Decision/Reasoning: The Court held that despite including reference to the mother’s conduct in the courtroom when faced with the father and the discussion about a report, the passages of which were included and relied upon in Re: L (Contact: Domestic Violence) [2000] 2 FLR 334, a decision of the England and Wales Court of Appeal (Civil Division). They were on the public record and so “materially different from matters appearing in reports” which have not yet undergone judicial consideration. While this alone does not guarantee that procedural fairness is achieved in circumstances where the parties were not on notice about the report and did not have opportunity to cross-examine accordingly, the Full Court held that “anything said in Re: L was not necessary to establish the relevance of the findings” made by the Federal Magistrate.
Regarding the property settlement and the “Kennon type adjustment”, the Full Court found that while it represented the “top of the range” it did not “exceed the bounds of a reasonable exercise of discretion”. Regarding the violence that was perpetrated post-separation, the Full Court held it was correctly included by the Federal Magistrate and was a relevant consideration in determining whether the mother’s contributions as a whole were more arduous.
Wolfe & Director-General, Department of Human Services [2011] FamCAFC 42 (4 March 2011) – Family Court of Australia (Full Court)
‘Allegations of child abuse’ – ‘Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Parenting proceedings’
Matter: Hague Convention return order appeal.
Facts: The mother unsuccessfully opposed the father’s application for return of the children to New Zealand. There were ongoing parenting proceedings between the mother and father in New Zealand, where the mother conceded the children had been habitually resident for their whole lives. The current New Zealand orders (made following a hearing in which the mother alleged the father had abused the children and been violent towards her) provided that the children reside with the mother and have one and a half hours contact with the father each weekend. The mother’s new partner was violent towards her and the children were exposed to that violence. The mother fled New Zealand and returned to her native Australia after leaving her new partner. She gave evidence that the children were fearful to return to New Zealand due to concerns about her new partner.
Held: Appeal dismissed.
Bryant CJ, Finn and May JJ noted the first instance judge’s comments with approval:
“[i]n part, she relied on her own refusal to establish that a return of the children would place them in an intolerable situation”. Her Honour disposed of this aspect of the mother’s case by saying, correctly, in our view, that “[i]t is well established that, ordinarily, the objects of the Convention should not be frustrated by a parent’s refusal to return with children to their country of habitual residence”. [32]
Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011) – Family Court of Australia (Full Court)
‘Children’ – ‘Notice of risk’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Psychiatric report’ – ‘Risk’
Appeal type: Appeal against interim parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, the Federal Magistrates Court made interim parenting orders. The effect of these orders was to allocate parental responsibility for the children solely to the mother, require the children to live with the mother and require the children to spend weekly supervised time with the father at a contact centre. The orders were made pending the preparation of a psychiatric report on the risk the father presented to the children. These orders radically altered previous arrangements, as the Federal Magistrate was concerned about the need to protect the children from physical or psychological harm that would arise from them being exposed or subjected to abuse, neglect or family violence. The father appealed against these orders.
Issue/s:
•
Whether the Federal Magistrate erred in finding that it was in the best interests of the children (a) for the father’s time to be supervised and (b) to significantly reduce the time they spent with the father.
•
Whether the Federal Magistrate had erred by allocating parental responsibility solely to the respondent.
Decision/Reasoning: The appeal was dismissed. In dismissing the first ground of appeal, the Court held, amongst other findings, that if evidence of abuse or family violence is adduced at trial, the Court is obliged to deal with it. The Court must always critically assess the evidence placed before it in determining the issue (see [46]). It was also noted that a finding of family violence may be made in the absence of a Form 4 Notice.
The Court held that it was clearly open on the evidence for the Federal Magistrate to find that family violence had been perpetrated by the appellant.
In relation to the second ground of appeal, the appellant contended that the Federal Magistrate relied upon erroneous finding of family violence to then improperly find that the presumption of equal shared responsibility did not apply. The Court dismissed this argument by again noting that the finding of family violence was open to the Federal Magistrate (see [64]-[69]).
Note: final orders were subsequently made, but the finding of family violence was not affected (see Slater & Light [2013] FamCAFC 4 (5 February 2013)).
Vasser & Taylor-Black [2010] FamCAFC 36 (11 March 2010) – Family Court of Australia (Full Court)
‘Parenting orders’ – ‘Re F: litigants in person guidelines’ – ‘Self-represented litigants’
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother from parenting orders that challenged part of the process followed and some of the rulings made during the conduct of the trial. On the final day of the hearing, the self-represented mother sought to tender a 52 page document in response to the report of an expert witness.
Issue/s: One of the grounds of appeal was that trial judge failed to provide the mother with procedural fairness in not ascertaining the reason behind the preparation of this document and in not advising her that she may wish to seek legal advice before tendering the particular document, contrary to the litigants in person guidelines: Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Reasoning/Decision: The appeal was dismissed as the mother here was not the victim of unfairness. Although this appeal did not relate to family violence, the Court relevantly observed that the Litigant in Person Guidelines were no more than guidelines.
See Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Amador & Amador (2009) 43 Fam LR 268; [2009] 43 FamCAFC 196 (3 November 2009) – Family Court of Australia (Full Court)
‘Determining allegations in relation to family violence’ – ‘Evidence’ – ‘Parenting orders and impact on children’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Requirement of corroboration’
Proceedings: Appeal against parenting and relocation orders.
Facts: The parties met online and were married in Belgrade. Their child, who had autism, was born in Belgrade. The mother and the son came to live in Australia with the father when the child was 20 months old. The parties subsequently separated, with the mother alleging that the father had perpetrated domestic violence and sexual assault against her. The father denied these allegations. In 2008, a Federal Magistrate made orders granting the mother sole parental responsibility for the child. The mother was also permitted to relocate to Serbia with the child and the father’s contact time with the child was reduced from weekly to possible annual contact. The father appealed against these orders.
Issue/s: One of the grounds of appeal was that the Federal Magistrate erred in accepting the mother’s uncorroborated evidence that domestic violence and sexual assault was perpetrated by the father on the mother.
Reasoning/Decision: This ground of appeal was dismissed but the appeal was allowed on other grounds. In dismissing this ground of appeal, the Court held that a positive finding may be made on the evidence of the victim without corroborating evidence. See [79].
The Court expressed concern at the manner in which the Federal Magistrate had expressed a finding of insufficient evidence re family violence. They were concerned that the Federal Magistrate had felt in some way constrained by law in being able to make a positive determination in relation to allegations of violence even if the evidence had satisfied her on the requisite standard that the violence occurred as alleged. See [95]-[96].
Oakley & Cooper [2009] FamCAFC 133 (30 July 2009) – Family Court of Australia (Full Court)
‘Children’ – ‘Full court referred to, and discussed, the best practice principles for use in parenting disputes when family violence or abuse is alleged’ – ‘Physical violence and harm’ – ‘Whether the federal magistrate erred by giving insufficient weight to issues of family violence’
Proceedings: Appeal against parenting orders
Facts: The parties were together for approximately 7 years, separating in March 2006 – there were 2 children of the relationship. The mother had 6 children from previous relationships. The Federal Magistrate described their relationship as “extremely volatile”, ending in an incident of domestic violence. The Federal Magistrate made findings inter alia: that the parties were unable to effectively communicate with each other due to them being “aggressive, provocative … show[ing] a lack of maturity and complete absence of child focus”; that the mother used physical discipline on the children; and that on at least one occasion the mother’s behaviour at changeover was “appalling and did severely distress the children”. The family report included the opinion that the children “have positive attachments to both parents, but experience some trauma associated with the continuing conflict in their parents’ relationship”. Despite the conflict between them, the parties agreed to an order for equal shared parental responsibility. As such, the Federal Magistrate was obliged to consider equal time, or significant and substantial time with each parent. Orders were made that the children live with the mother 9 nights a fortnight and with the father for 5. The father appealed these orders.
Issues: Did the Federal Magistrate give appropriate consideration to the evidence and findings of family violence when making the parenting orders that he did?
Reasoning/Decision: The appeal was dismissed. The Full Court referred to the 2009 publication “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged”, specifically Section F of the 2009 principles which sets out considerations where children are ordered to spend time with a parent where positive findings of family violence have been made against that parent.
The Full Court found that while they agreed with the argument of the mother’s counsel, that the discussion of weight in relation to family violence had been “clipped” they found that there was no appealable error established. The Federal Magistrate had evidence of both parties and their associates hitting the children, and that both parties were verbally and physically abusive of one another in the presence of the children. Despite acknowledging that the mother’s behaviour was, at times, worse than the father's, when taken in the context of the best interests of the children, the conclusion was that it was in their best interests to remain predominantly in the care of their mother.
M & L (2007) FLC 93-320; (2007) 37 Fam LR 317; [2007] FamCA 396 (4 May 2007) – Family Court of Australia (Full Court)
‘Aboriginal and Torres Strait Islander people’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Relevance of cultural evidence’
Proceedings: Appeal against parenting orders.
Facts: Both parents were Aboriginal and Torres Strait Islander, and lived in the NT, one close to Darwin, one quite remote. There was family violence where the father would physically and verbally abuse the mother. On one occasion the paternal grandfather punched the father for hitting the mother. The mother had been the primary care giver of the children. At trial evidence was led about the communities in which each parent lived. The trial judge found that the children would have a greater connection to their father’s culture by living with him.
Issues: Whether the trial judge had adequately considered the evidence of family violence and its potential effects on the children.
Reasoning/Decision: The Full Court held that there was inadequate consideration of the risk to the children given the father’s history of violence and alcohol consumption. The lack of consideration of the evidence that the children had been primarily cared for by the mother, and that there was no evidence that her care was lacking was overlooked, was also an error. A finding was made by the trial judge that the mother’s parenting was reliant on others in the community, referring to it as “collectivist”. He based his finding on an anthropological report quoted in another judgment. There was no anthropological evidence that the mother’s community engaged in such “collective” parenting, and that the mother was not, herself, the children’s primary care-giver. The trial judge’s finding that the best interests of the children would be met by them living with their father cannot be sustained when evidence of the mother’s adequate care, the fact she was the primary care giver and the father’s violence towards the mother, is balanced against the finding of the cultural benefits to the children of living in the father’s community.
Napier & Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395; [2006] FamCA 1316 (5 December 2006) – Family Court of Australia (Full Court)
‘Contact’ – ‘Risk’ – ‘Unacceptable risk’
Proceedings: Appeal against residence and contact orders.
Facts: The proceedings involved competing applications for residence and contact to the child of the parties. The mother made allegations that the father sexually abused the child. While no finding of abuse was made, the Trial Judge did make a finding of unacceptable risk. On appeal, the father challenged the orders made for contact, in particular, the requirement that the contact be supervised.
Issue/s: The trial judge provided inadequate reasons supporting his finding of unacceptable risk of abuse.
Reasoning/Decision: Although this case did not relate to family violence, the Court made observations relevant to the assessment of unacceptable risk. Bryant CJ and Kay J held at [84] that:
‘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’.
S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003) – Family Court of Australia (Full Court)
‘Contributions must be affected by the violence’ – ‘Impact of violence on past contributions’ – ‘Kennon adjustment’ – ‘Property proceedings’ – ‘Reference to exceptional cases should not mean rare’
Appeal type: Appeal against property orders.
Facts: The parties had two adult children and separated in 2000. The trial judge made a Kennon style adjustment in favour of the wife. His Honour held that the evidence clearly revealed that there had been some violent behaviour by the husband towards the wife. Although there was no explicit evidence from the wife as regards to the effect of the violence on her contributions, the trial judge accepted that the wife’s contributions must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband.
Issue/s: One of the grounds of appeal was whether the trial judge erred in adjusting the wife’s contributions to account for the domestic violence perpetrated by the husband?
Reasoning/Decision: The appeal was allowed. Here, the evidence could not have properly led to a Kennon adjustment under section 79 (see [48]). In reaching this decision, the Court made a number of statements of principle, elaborating upon the decision in Kennon.
It was held that evidence of violence alone is not enough, but that the “violent conduct by one party towards the other” must be demonstrated to have an effect on contributions.
In addition, the Court also stated that the reference in Kennon to ‘exceptional’ cases should not be understood to mean rare. They adopted the trial judge’s comments that ‘the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. … It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’. (see [47]).
B & B [2003] FamCA 274 (8 April 2003) – Family Court of Australia (Full Court)
‘Failure to provide adequate reasons to deal with the allegations relating to violent and abusive behaviour’ – ‘Family violence’ – ‘Kennon adjustment’ – ‘Kennon not an award for damages’ – ‘Parenting orders’ – ‘Property orders’ – ‘Relevance of family violence in cases concerning the welfare of children’
Proceedings: Appeal against parenting orders and division of property.
Facts: The parties had two children together. At trial, the mother made extensive allegations of physical, verbal and emotional abuse against the father, much of which the father conceded (see [38]). The trial judge made an order that the children should predominately be in the care of their father. Additionally, the trial judge rejected the wife’s submission that the division of property ought to be adjusted to 60/40 from 70/30 division on the basis of the decision in Kennon.
Issue/s: Some of the issues were –
•
Did the trial judge err in failing to provide adequate reasons to deal with the allegations relating to violent and abusive behaviour?
•
Did the trial judge err in attributing responsibility for the domestic violence that occurred during the marriage to the wife?
•
Did the trial judge err in his application of the Kennon principle.
Reasoning/Decision:
The Court held that the trial judge was ‘obliged to adjudicate the violence issue as raised by the wife and to make specific findings in respect of the course of conduct conducted by the husband in the course of the marriage so that he could properly assess relevant aspects of the behaviour of each of the parents in determining in whose care he should place the children’. However, from reading His Honour’s reasons for judgment, it was not clear that he considered and evaluated the relevant evidence and took all the relevant factors into account. The issues raised by the wife in the grounds of appeal could not be described as ‘pernickety or overly critical’ (AMS v AIF) when matters of such significant serious and prolonged violence were clearly raised and left virtually undiscussed in the judgment (see [32]-[53]).
Secondly, the Full Court found that, the trial judge did not attribute responsibility for the domestic violence to the wife: while the trial judge found the wife to have engaged in passive/aggressive conduct, His Honour indicated in the clearest terms that he was not condoning the husband’s conduct in response to such behaviour(see [54]-[57]).
Thirdly, the Full Court held that the application of the principles in Kennonis “not the equivalent of an award for damages”, but used to determine whether the husband’s conduct had the effect of making the wife’s contributions more arduous.
T & S (2001) FLC 93-086; [2001] FamCA 1147 (29 October 2001) – Family Court of Australia (Full Court)
‘Administration of justice’ – ‘Effect of family violence’ – ‘Parenting orders’ – ‘Procedural fairness’ – ‘Re f: litigants in person guidelines’ – ‘Self-represented litigants’
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother against orders made by the trial judge in relation to the residence, contact and other specific issues relating to the child of the parties’ relationship. The effect of the trial judge’s order was that the father was to have residence of the child and be responsible for the child’s day to day care, welfare and development; and that the mother was to have specified contact with the child. The mother was unrepresented for five days of the six day hearing. A claim by the mother of domestic violence at the hands of the father was raised but the trial judge did not accept the mother’s evidence. The trial judge instead made a number of adverse findings against the mother.
Issue/s: A major ground of appeal advanced on the Mother's behalf was that she did not receive a fair trial and that a new trial should be ordered. The gravamen of the Mother's case was that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence, and because the Mother suffered from a personality disorder, the trial judge made negative findings against her, and in particular against her credibility.
Reasoning/Decision: The appeal was allowed on the basis of further evidence tendered on appeal which contained detailed evidence of ongoing domestic violence by the husband, and reports from a psychologist and social worker providing evidence as to the effect of the domestic violence on the mother’s ability to conduct her case at trial. The Court held that if the evidence had been tendered before the trial judge, it would have produced a different result and the best interests of the child required a re-hearing.
B & K [2001] FamCA 880 (14 August 2001) – Family Court of Australia (Full Court)
‘Parenting orders’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Sexual and reproductive abuse’
Proceedings: Appeal against residence orders and property settlement.
Facts: The parties had two children. The trial judge made an order for shared residency of the children. The trial judge accepted evidence that the husband had anally raped the wife.
Issue/s: Did the trial judge give sufficient weight to the family violence the husband had inflicted on the wife and the subsequent effect or impact on her of that violence in making residence orders?
Reasoning/Decision: The appeal was dismissed. At [32] the Court noted the authorities referred to by counsel for the wife in support of the argument that the trial judge did not give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife: JG and BG (1994) FLC 92-515, Patsalou (1995) FLC 92-580, Blanch v Blanch & Crawford [1998] FamCA 1908; (1999) FLC 92-837, and Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
The Full Court determined that consideration of the family violence and its effect upon the wife was adequate and orders for fortnight-about care of the children was within the trial judge’s discretion.
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 (4 June 2001) – Family Court of Australia (Full Court)
‘Contact orders’ – ‘Guidelines for matters involving self-represented litigants’ – ‘Parenting orders and effect on children’ – ‘Self-represented litigants’
Appeal type: Appeal against parenting and contact orders.
Facts: While not a case specifically dealing with family violence, there is a large proportion of self-represented litigants in family law proceedings and as such the guidelines set out in this case pertain.
Issue/s: Did the trial judge contravene the guidelines in respect of the litigants in person set out by the Court in Johnson v Johnson (1997) FLC 92-764?
Reasoning/Decision:
The Full Court provided guidelines as follows (taking a number from Johnson v Johnson (1997) FLC 92-764):
1.
A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.
A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3.
A judge should explain to the litigant in person any procedures relevant to the litigation;
4.
A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.
If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6.
A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7.
If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8.
A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150);
9.
Where the interests of justice and the circumstances of the case require it, a judge may:
◦
draw attention to the law applied by the Court in determining issues before it;
◦
question witnesses;
◦
identify applications or submissions which ought to be put to the Court;
◦
suggest procedural steps that may be taken by a party;
◦
clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
In the Marriage of Blanch; Blanch v Blanch and Crawford (1999) FLC 92-837; (1998) 24 Fam LR 325; [1998] FamCA 1908 (27 November 1998) – Family Court of Australia (Full Court)
‘Children’ – ‘Custody proceedings’ – ‘Erroneous findings of fact’ – ‘Incorrect attribution of fault to the victim’ – ‘Perpetrator responsibility’ – ‘Physical violence and harm’ – ‘Relevance of family violence’ – ‘Relevance of family violence in cases concerning the welfare of children’
Appeal type: Appeal against parenting orders.
Facts: The parties were married but separated after seven years. There were two children of the marriage. The wife made allegations of domestic violence against the father; these were denied by the father. The trial judge found at [325] that both parties were responsible for violence in the relationship, and that the relevance of family violence in custody proceedings was to be indicative of a risk ‘to … children in later years that … could cause them harm’. The wife brought an appeal against orders made by the trial judge that the children of the relationship reside with their father.
Issue/s:
Whether the trial judge erred in his findings regarding domestic violence?
Decision/Reasoning: The appeal was allowed.
Counsel for the wife submitted that the trial judge addressed the questions of the husband’s domestic violence ‘in almost a passing manner’, despite the presence of overwhelming evidence from the wife that she was the victim of consistent and frequent violence and abuse. It was held that “in cases such as this, where a case of sustained and severe domestic violence by one party is advanced by the other, the court is obliged to give a clear indication whether it accepts or rejects that case and, in any event, to explain why it has reached that conclusion” (see [333]).
In addition it was held that the trial judge’s conclusion that the responsibility for violence between the parties was fairly evenly shared was not available on the evidence.
Other aspects of His Honour’s treatment of domestic violence were also in issue. First, His Honour’s perception of the relevance of violence to the overall welfare of the children was inadequate. The trial judge failed to consider the significant risk of such violence to the children’s emotional development such as “insecurity, fear, unhappiness, anxiety and hyper vigilance”: Patsalou and Patsalou [1994] FamCA 118 and JG and BG (1994) FLC 92-515 (see [334]). Second, Lindenmayer J also strongly disapproved of the trial judge’s finding that the husband’s violence towards the wife was a product of the marital relationship rather than of the husband’s personality.
Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal (1997) FLC 92-757; [1997] FamCA 27 (10 June 1997) – Family Court of Australia (Full Court)
‘Contributions’ – ‘Property proceedings’ – ‘Relevance of domestic violence’ – ‘Section 79’ – ‘Significantly more arduous’
Proceedings: Property settlement.
Facts: The parties cohabited for approximately five years before separating. The husband was very wealthy and the wife had far more modest means. The property pool was nearly $9 million. There were no children of the marriage. In 1994, the wife filed a property application under s 79 of the Family Law Act. The husband filed a cross application. The wife subsequently filed an amended application which included a claim under the cross-vesting legislation that the husband pay her damages for assault and battery. The husband denied the allegations of assault and restated his position regarding the property claim. The trial judge accepted that a number of assaults had occurred and awarded damages, but found that the husband's conduct had not affected the wife's contributions to allow an adjustment in relation to s 79(4).
Issue/s: The wife did not challenge the trial judge’s finding that the husband's conduct had not affected her contributions. Consequently, the Full Court's comments on the relevance of domestic violence in claims under s79 of the Family Law Act were made in obiter.
Decision/Reasoning: The appeal was dismissed but the Full Court took the opportunity to clarify the relevance of violence in s79 property adjustments. The Full Court said that earlier authorities on s 79 precluding evidence of domestic violence were no longer binding, acknowledging that the ‘pervasiveness and destructiveness of domestic violence’ was now better recognized by the Australian community and courts.
The Full Court cautioned that s 79 of the Act is not a source of ‘social engineering’ or to be used as ‘a means of evening up’ the financial positions of the parties. They held:
‘Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion’.
The Court also referred to this principle as including ‘exceptional cases’ and noted, ‘[i]t is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party’.
(See also subsequent interpretation in S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003), Baranski & Baranski & Anor [2010] FMCAfam 918 (1 September 2010) and Damiani & Damiani [2012] FamCA 535 (9 July 2012).)
Re Andrew (1996) FLC 92-692; [1996] FamCA 43 (23 May 1996) – Family Court of Australia (Full Court)
‘Contact proceedings’ – ‘Family violence’ – ‘Fear of violence’ – ‘Supervised access order’ – ‘Unacceptable risk to child’ – ‘Weight to be given to impact of access on custodial parent’
Proceedings: Appeal against supervised access orders.
Facts: The parties separated. Satisfactory access arrangements were in place for 3.5 years. However, the relationship between the parties deteriorated and the husband assaulted the wife. The wife held a genuine belief that the husband had tried to kill her and the child on this occasion and subsequently denied the husband access to the child. The husband filed an application for unsupervised access.
The trial judge found that each parent alone could provide adequately for the needs of the child. However, the wife’s fears had become even more entrenched over time and these fears were a major impediment to access, because they were genuine even if they may not be founded in fact. Her capacity to provide care to the child would be impaired and cause detriment to the child if the husband was given unsupervised access. The trial judge made orders for supervised access.
Issue/s: The trial judge gave too much weight to the mother’s attitude and not enough weight to the benefits to the child of unsupervised contact with the father.
Reasoning/decision: The Full Court dismissed the appeal. After citing extensively from past authorities, it was concluded that the finding that the wife’s genuine fear of the husband would significantly affect her ability to provide adequately for the needs of the child as custodial parent despite the benefits to the child from contact with the father was open to the trial judge.
In the Matter Of: N Appellant/Wife and S Respondent/Husband and the Separate Representative [1995] FamCA 139 (20 December 1995); (1996) FLC 92-655; (1995) 19 Fam LR 837. – Family Court of Australia (Full Court)
‘Assessment of unacceptable risk’ – ‘Unacceptable risk’
Proceedings: Appeal against custody orders.
Facts: Not a family violence case, but it discusses principles in determining unacceptable risk in the context of sexual abuse allegations. In custody proceedings, the mother alleged that the father sexually abused their child and sought to have access by the husband to the child prevented. The trial judge was not satisfied on the civil standard of proof that the sexual abuse had occurred. However, he did not conclude that the abuse certainly did not happen. The mother was steadfast in her belief that the child had been abused by the father. The trial judge did not find the father unfit to have custody or access to the child by reason of sexual abuse or unacceptable risk of abuse, however, mitigated against the concerns and effect on the mother by making interim supervised contact orders.
Issue/s: Whether the trial judge erred in finding that the father was not an unacceptable risk?
Reasoning/Decision: The appeal was dismissed by majority. The Full Court held that the trial judge should not have made interim custody orders and failed to take into consideration the effect this would have not only on the child but also on the mother’s ability and capability to parent effectively. However, as the interim custody order was not challenged the Full Court did not set it aside. As regards to no finding of unacceptable risk, on the evidence, this was open to the trial judge.
Patsalou and Patsalou (1995) FLC 92-580; [1994] FamCA 118 (27 October 1994) – Family Court of Australia (Full Court)
‘Child welfare’ – ‘Custody proceeding’ – ‘Evidence’ – ‘Impact of family violence on children’ – ‘Independent research by judge’ – ‘Relevance of family violence’ – ‘Social science research’
Appeal type: Appeal against custody orders.
Facts: Allegations of family violence were made in custody proceedings. The trial judge accepted the wife’s evidence that prior to separation the husband had been hitting her on a regular basis, in front of the children on a number of occasions. Her Honour stated that the denigration of one parent by the other and the perpetuation of violence by that parent against the other is of importance when assessing where the interests of the children lie and what future arrangements might best advance their welfare. Her Honour also noted a number of articles on the effect upon children of inter-spousal violence including that such effects may be profound and long-lasting. The trial judge concluded that the children’s welfare would be best promoted by remaining in the custody of the wife.
Issue/s: Some of the grounds of appeal were –
•
Whether the manner in which the trial judge dealt with the violence and denigration by the husband of the wife was inappropriate and contrary to law.
•
Whether the trial judge erred in referring to the body of research as the articles cited did not constitute evidence before her and the parties were not invited to make submissions with respect to them.
Reasoning/Decision: The Full Court upheld the trial Judge's finding that allegations of domestic violence were relevant to custody proceedings and found that the reference by the trial judge to published social science literature about the impact of family violence on children was permissible as the published research was referred to as background information rather than evidence.
Evidence of family violence was held to be relevant in custody matters, to the extent that it assisted the court to determine what is in the best interests of the children, as its impact could be ‘profound and long-lasting’. The Full Court approved the comments by the trial judge that denigration and assault cause ‘considerable unnecessary strain’ to the victim and ‘may erode the confidence, dignity and self-esteem of the children’s other parent’. Baker, Kay and Tolcon JJ agreed with the trial judge that such conduct modelled inappropriate behaviour for children and could ‘impinge upon the quality of parenting able to be offered to the children’ and ‘reflects poorly upon the assailant’s capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress’.
Between: R Appellant/Husband and C Respondent/Wife [1993] FamCA 62 (25 June 1993); Russell & Close (Unreported, Full Court of the Family Court of Australia, Fogarty, Baker & Lindenmayer JJ, 25 June 1993) – Family Court of Australia (Full Court)
‘Allegations of sexual abuse’ – ‘Best interests of the child’ – ‘Interpreter’ – ‘Meaningful relationship’ – ‘Parenting proceedings’ – ‘Separate representative/independent children’s representative’ – ‘Unacceptable risk to child’ – ‘Weight to be given to impact of access on custodial parent’
Appeal type: Appeal against access orders.
Facts: Post separation, an access arrangement for the two children of the relationship was established. The relationship between the parties deteriorated and the mother refused to allow the husband access to the children. One child was found to have been sexually abused, but it was not possible to identify the perpetrator. The mother believed that the father was the perpetrator, however the trial judge was not satisfied that the father had sexually abused the child. The trial judge made orders giving the father unsupervised daytime access to the children to reduce the risk of the mother from making unfounded allegations in the future. The father appealed against these orders. The mother did not challenge the orders, but cross-appealed in relation to findings of fact made by the trial judge.
Issue/s:
•
Whether it was open to the trial judge to make orders giving the husband unsupervised daytime access, where the court was not satisfied that the father had sexually abused the child.
Decision/Reasoning: The appeal was allowed in part. Amendments were made to the trial judge’s orders, clarifying the father’s access period and altering the proposed changeover location. The mother’s appeal against factual findings made by the trial judge and the father’s appeal against daytime access were dismissed.
The Full Court found that the relevant considerations when making access orders in cases involving sexual abuse of children were whether sexual abuse had occurred, whether the perpetrator could be identified, the potential risk of harm to the child from sexual abuse, the potential benefit to the child from parental access and the impact of the custodial parent’s beliefs on the welfare of the children. The Full Court said that the custodial parent’s beliefs regarding the child’s exposure to harm are relevant to the extent that they are likely to adversely affect that parent’s parenting ability and that a subjective test is used to assess the custodial parent’s beliefs.
The Full Court was satisfied that it was open to the trial judge to draw inferences regarding the likely future conduct of the mother. As the trial judge had found the mother genuinely believed the child had been sexually abused, that it was highly likely the mother would make further allegations of sexual abuse against the father if unsupervised overnight access was granted and that this risk did not apply to unsupervised daytime access, it was at the trial judge’s discretion to give the husband unsupervised daytime access.
Family Court of Australia
Bennett & Bennett [2021] FamCA 182 (21 April 2021) – Family Court of Australia
‘Abuse of children’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Family violence evidence’ – ‘Kennon principles’ – ‘Parenting proceedings’ – ‘Property proceedings’ – ‘Sexual abuse’
Proceedings: Parenting and property proceedings.
Facts: The mother and father separated in 2016. The father was found guilty of assault and aggravated indecent assault in relation to their children. He was also found guilty of multiple assault and intimidation charges against the wife and children.
Issues:
1.
Application to change the children’s surnames, issue of passports and overseas travel, and the father’s access to school information.
2.
Division of net available asset pool.
Decision and reasoning: Parenting and property orders made.
Parenting orders: It was in the children’s best interests that they eradicate their father’s name from their names, given the damage and violence he inflicted on them, noting that “[t]he children need to close this chapter in their lives and this is one practical way of assisting them to do so” (at [124]).
Property orders: The decision of Kennon v Kennon was highly relevant to the facts: “where there is a course of violent conduct during the marriage which is demonstrated to have had a significant impact upon that party’s contribution to the marriage, this is a factor which the trial Judge is entitled to take into account in assessing the parties’ respective contributions under section 79 of the Act.” As per Baker J in Kennon at [84]:
“The incidence of domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions…for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.”
The wife’s entitlement was to 95% of the property comprising of the following:
•
The husband’s violence and conduct towards the children and wife made her role as a parent and homemaker far more arduous than it needed to be. Her entitlement for past contributions was assessed at 70% being direct financial contributions, contributions as parent and homemaker, and solely since separation in the most difficult of circumstances (given the husband’s behaviour and offending).
•
In relation to her future needs, her contribution to the children post-separation would continue to be overwhelming. Moreover, “the husband’s conduct towards the children…made her parenting role more arduous as the children have suffered psychologically from their father’s violence.” She would be solely financially, emotionally and psychologically supporting the children for the next 6 years. An adjustment of 25%.
The husband was entitled to 20% of the pool, reducing the wife’s entitlement to 80%.
Pollard and Nordberg [2019] FamCA 365 (7 June 2019) – Family Court of Australia
‘Alleged child victims’ – ‘Appeal against recovery order’ – ‘Best interests of the child’ – ‘History of domestic and family violence’ – ‘Interim parenting orders’
Proceedings: Appeal against grant of recovery order.
Facts: The father had sought, and been granted, a recovery order for the return of the children following the mother’s unilateral removal of the children from the family home in Victoria. She took the children with her to her mother’s home in New South Wales. The mother alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother.
Issue: Whether the recovery order ought to be revoked pending a final order hearing.
Judgment: Wilson J upheld the mother’s appeal against the father’s recovery order on the basis of family violence allegations against him, despite no expert report being admitted:
[155]If I dismiss the mother’s appeal, the recovery order will operate in such a way that the children are physically, and if necessary, forcibly, returned by police to the father in Victoria. If the allegations of family violence are proved at trial, that means I will order the children to be returned to a violent environment. It must not be overlooked that the mother has alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother. I refuse to make an interim order returning the children to the father in circumstances where the father may at trial be found to have engaged in family violence. In my judgment this court must act protectively towards the children and remove them from any risk associated with family violence. To do so is consistent with the imperative recorded in s 60CC(2A).
Behn & Ziomek [2019] FamCA 298 (10 May 2019) – Family Court of Australia
‘Assault child’ – ‘Best interests of child’ – ‘Coercive control’ – ‘Family law’ – ‘Financial abuse’ – ‘Protection order’ – ‘Relocation’ – ‘Sexual abuse’ – ‘Supervised contact’ – ‘Systems abuse’ – ‘Unacceptable risk’
Matter: Application for children’s orders for relocation, mother to have sole parental responsibility, supervised contact
Facts: The German national mother wished to return the Germany with the child. The court considered whether the child faced an unacceptable risk in spending time with the father.
Issue: Application for leave to appeal.
Decision and reasoning: Relocation allowed; mother to have sole parental responsibility.
McClelland DCJ accepted that the child faced an unacceptable risk spending time with the father because (1) he had an extensive history of coercive and controlling behaviour towards the mother, and (2) his controlling nature manifest itself in physical violence towards the child.
[200] His Honour accepted evidence that the father had a history of engaging in controlling and coercive conduct in respect to the mother and that that controlling nature had manifested in physical violence to the child. Matters found to constitute controlling and coercive conduct during the relationship included setting up a camera in their home, telling the mother an investigator was following her while she was overseas, questioning her presence at her brother’s wedding, frequent accusations of infidelity, inspecting her used underwear and telling her it tested positive for sperm; attending her medical appointments and attempting to sexually belittle mother by asking questions of and making comments alleging her infidelity to multiple doctors, sending her a divorce kit in response to an argument about money and financially controlling her by draining her bank account and using her credit card.
His Honour accepted that the father’s post-separation manner of conduct of the proceedings and behaviour questioning medical treatment of the child amounted to coercive and controlling behaviour, as did calling the police for seven times for unnecessary police welfare checks. His Honour also accepted that the father’s assault of the child was child abuse.
Frangoulis and Xennon [2019] FamCA 103 (28 February 2019) – Family Court of Australia
‘Anger management’ – ‘Application in a case’ – ‘Disputed compliance with therapy order’ – ‘Family law’ – ‘Family violence’ – ‘Interim parenting orders’ – ‘Substantially supervised contact’ – ‘Therapist's expertise disputed’
Matter: Father’s application in a case for reinstatement of contact with the three children X, Y and Z, additional make up contact and that the child X engage in re-unification therapy with the father with a therapist to be agreed or as nominated by the Independent Children’s Lawyer.
Facts: The mother alleged serious family violence against the father. A previous interim order required the father to engage with either Mr B or another therapist nominated by the Independent Children’s Lawyer (“ICL”). The parties were in dispute as to whether the father had complied, the mother disputing the professional expertise of the father’s chosen therapist, who was neither Mr B nor nominated by the ICL. The father contended the ICL approved the father’s proposal to undertake the therapy with Mr F.
Earlier orders provided for the father to have contact with the children supervised by Mr and Ms C in the first week on Saturday from 2:00pm until 5:00pm and in the second week on Sunday from 2:00pm until 5:00pm save and except that the father’s time with X is subject to her wishes. The mother stopped contact pursuant to that order alleging he had spent time with the children without supervision. Berman J had previously held that the father had contravened the supervision order.
The mother referred to a report of Mr B dated 28 August 2017 which observed:
“[the father] was not open to consideration of any difficulties with reactivity or emotional regulation. He was not open to consider any role that he might play in the conflict with [the mother] or any contribution to [X]’s difficulties or possible dilemmas that might arise for the other children. I have decided to terminate contact with [the father] after 2 visits, rather that continue for 6 consultations as had been initially ordered. I did not feel that further contact would enable any helpful resolution to this matter and was concerned that continued discussion might only serve to further entrench a fixed and limited position.” [17]
The mother unequivocally stated she would reinstate the father’s contact once he had complied with the therapy requirement. Berman J expressed surprise that the parties had been unable to negotiate a resolution to the issues in the application.
Decision: Inter alia, Berman J ordered:
1.
That the father will attend upon Mr F for a further two (2) sessions and at the conclusion of which Mr F will prepare a report directed to the following matters:
(a)
A summary of his expertise, experience or skillset in respect of family violence and anger management;
(b)
A report directed to the father’s engagement with therapy and focussing on anger management and family violence;
2.
That to assist with the therapeutic intervention by Mr F, the father will provide to him the following:
(a)
The report of Mr B;
(b)
The report of Ms D;
(c)
The judgments of 27 July 2018 and 19 November 2018.
3.
That upon the expiration of twenty one (21) days from the provision of the report by Mr F, indicating that the father has successfully engaged with counselling and therapy directed to family violence and anger management, the father’s time with the children will be reinstated pursuant to paragraph 1 of orders made 4 August 2017, with further amendment that his time with the children will only require the substantial presence of either Mr or Ms C.
Berman J considered the father’s application for reunification therapy with his child:
[49] … For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.
[50] The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.
[51] A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.
Farina & Lofts and Ors [2019] FamCA 27 (23 January 2019) – Family Court of Australia
‘Damaging property’ – ‘Family violence evidence’ – ‘Kennon principles’ – ‘Physical violence and harm’
Case type: Interim ruling.
Facts: The applicant and first respondent were in a de facto relationship for 14 years and have two children. They agreed that their respective contributions during the relationship (apart from the Kennon argument) should be regarded as equal ([8]-[10]). The first respondent alleged that the applicant’s conduct amounted to family violence, occurring during and subsequent to their relationship. Her evidence of such violence included a history of protection orders made against the applicant; allegations of physical, verbal, psychological, financial, emotional and mental abuse; allegations of property damage and animal cruelty; and allegations of exposing the children to family violence ([13]).
Issue: The applicant sought a ruling on whether or not family violence evidence relied upon by the first respondent sufficiently met the requirements of the Kennon principles and resulted in an ‘additional adjustment’ to the first respondent.
Held: Carew J ruled that the first respondent’s evidence was insufficient to establish that the Court should make an adjustment on the basis of the Kennon principles. Her Honour stated that ‘[w]hile it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings, the difficulty often faced by a trial judge is the inadequacy of evidence to support any relevant finding and adjustment’. Even if there is no direct evidence as to how the conduct affected the victim’s ability to make his or her contributions, the impact may be inferred provided that the evidence clearly supports it. A person’s conduct will be relevant if it has had a ‘significant adverse’ or ‘discernible’ impact on the contributions of another ([6]).
The applicant submitted that the evidence failed to demonstrate a discernible or significant adverse impact on the first respondent’s contributions ([15]). In relation to direct and indirect financial contributions, the first respondent deposed to finding it difficult to contribute financially because of the domestic violence inflicted upon her by the applicant. In relation to non-financial contributions for the welfare of the family, she gave evidence that the applicant also made it difficult for her to contribute as a ‘mother’ ([17]). The applicant further submitted that the first respondent’s evidence to occasionally feeling nervous or humiliated represented a personal impact on the first respondent, but fell short of establishing that those feelings had any discernible or significant impact on her ability to contribute ([18]).
Carew J noted that the need to establish ‘fault’ has been replaced by a ‘no-fault’ system in order to obtain a divorce or other relief, such as a property settlement or spouse maintenance. The repeal of the ‘fault’ based system avoids the humiliation and expense associated with presenting the necessary evidence ([22]). Nevertheless, according to the Kennon principles, there are circumstances where conduct will be relevant to the determination of a property settlement application ([23]).
Her Honour accepted the applicant’s submission that the evidence relied upon by the first respondent was insufficient to establish the impact of the conduct on her ability to make contributions or the quantification of that impact on her contributions, either expressly or impliedly ([24]).
Garrod & Davenort [2018] FamCA 825 (12 October 2018) – Family Court of Australia
‘Coercive control’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘History of domestic and family violence’ – ‘Physical violence’ – ‘Systems abuse’
Issue: Parental responsibility.
Facts: The mother alleged that the child was repeatedly struck by the father causing bruising and that the father engaged in intimidating conduct towards her and the child, often following drug use by the father. The father was subject to several intervention orders, none of which successfully prevented his violent and intimidatory conduct. One incident of violence followed the mother’s discovery the father had spent money set aside for payment of bills. The father was persistently in arrears of his child support obligations and viewed child support as a benefit to the mother.
The mother led evidence that the father’s conduct towards her and the child made her highly anxious. The child allegedly made disclosures to the mother in July 2014 after spending time with the father that ‘daddy hit me’ and ‘he was just angry and he hit me’. The following day, the mother alleged a bruise appeared on the child’s hip. [344]
Decision and Reasoning: The mother have sole parental responsibility for the child, the father have no contact with the child and there be a moratorium on the father seeking further parenting orders for a period of two years. The father’s conduct towards the mother and the child had made the mother highly anxious.
It was held that that ‘the father’s behaviour ha[d] been manipulative and the violence, which has been physical violence as well as coercive controlling violence, insidious. It was often perpetrated in the presence of the child.’ [5]
Despite the father’s recent admissions regarding his conduct, the Court was unconvinced that he does not pose an unacceptable risk to the child’s safety and wellbeing.[5]
The Court considered the definition of ‘coercive controlling violence’. It was held that: ‘Coercive controlling violence is an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance in them. Its focus is on control, and does not always involve physical harm.’ [223]
Xuarez & Vitela (No 3) [2017] FamCA 1108 (22 December 2017) – Family Court of Australia
‘Abuse of process’ – ‘Child-related proceedings’ – ‘Systems abuse’ – ‘Vexatious proceedings’
Case type: Application by both parties for a vexatious proceedings order.
Facts: Mr Xuarez and Ms Vitela (both pseudonyms) had been involved in court proceedings in relation to parenting orders for over 10 years ([7]-[21]). The father had filed 19 separate Applications in a Case between 11 April 2012 and 16 November 2017 ([16]), which were all dismissed, and Notices of Appeal in relation to the dismissals ([17]). Both the mother and the father filed applications for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth).
Issues: Whether the Court should make the vexatious proceedings order against the mother or the father or both.
Decision and Reasoning: The application made by the mother was granted, while the application by the father was dismissed. An order was made prohibiting Mr Xuarez from instituting proceedings against Ms Vitela or any of her legal representatives and dismissing all extant applications ([45]).
Justice Carew at [29] cites Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 to set out 11 principles to consider when making an order in relation to vexatious litigants. Applying the principles to the father’s conduct, Carew J highlighted the facts that most of the applications were instituted without reasonable grounds, the father sought orders that the Court did not have jurisdiction to make, and the repetitive nature of the applications amounted to an abuse of process ([34]). It was noteworthy that in 2010, the father was declared a vexatious litigant in another court, in relation to proceedings where the father stalked the mother’s former legal representative ([37]). These facts justified the order being made against the father.
Janssen & Janssen [2016] FamCA 345 (1 February 2016) – Family Court of Australia
‘Discretion to admit the audio recordings and transcripts into evidence’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Recordings made without consent’ – ‘Serious allegations of family violence’ – ‘Whether recordings were reasonably necessary to protect lawful interests’
Proceedings: Application relating to the admissibility of evidence and application as to whether the rules of evidence ought to apply in a Family Court hearing.
Facts: On the first day of a four day hearing, counsel for the applicant (the mother) sought leave to tender voice recordings and transcripts that had been made without the knowledge of the father. Under s 7 of the Surveillance Devices Act 2007 (NSW), it is unlawful to record private conversations without the consent of the parties to that conversation unless the recording of the conversation falls within one of the exceptions in s 7(2) and (3).
Issue/s:
•
Whether both the voice recordings and transcripts were admissible.
•
Whether there were ‘exceptional circumstances’ as per s 69ZT(3) requiring the proceedings to be determined according to the rules of evidence set out in the Evidence Act and not according to the procedures set out in s 69ZT(1) and (2) of the Family Law Act 1975 (Cth) (‘the FLA’).
Reasoning/Decision: First, McClelland J held that both the voice recordings and the transcripts were admitted in evidence under s 7(3) of the Surveillance Devices Act 2007 (NSW) (the recordings were reasonably necessary to protect the applicant’s lawful interests) and, in the alternative, under s 138 of the Evidence Act (the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained improperly).
McClelland J noted the ‘floodgates’ caution from senior counsel for the father i.e. that there was a danger of parties to a marital relationship experiencing difficulties surreptitiously recording their partner. However, in this regard, His Honour stated that his decision was very much one based on the facts of the case, including the allegations that the father had maintained a charming public face but had engaged in conduct within the family home that was alleged to have constituted family violence in terms of the provisions of s 4AB of the FLA. His Honour also had regard to the potential difficulty of obtaining evidence of family violence when it occurs behind closed doors without any witnesses present other than the perpetrator and victim. Further, His Honour noted that the recordings and transcript would be directly relevant to the issue of credibility as to whether family violence occurred in the proceedings (see [6]-[14]).
Notwithstanding the findings above, senior counsel for the father submitted that the Court ought to exclude the voice recordings (permitting the inclusion of the typed transcript) because the danger of the evidence being unfairly prejudicial to the father outweighed its probative value (s 135 Evidence Act). This was because the mother had knowledge and control of the recording and the circumstances in which the conversation occurred and was recorded. McClellan J dismissed this argument and held the voice recordings were admissible. This could be a matter for cross-examination by the father: Huffman & Gorman (No. 2). Further, His Honour noted submissions from counsel for the applicant and counsel for the Independent Children’s Lawyer that an important aspect of the evidence contained in the tapes was not simply what was said but how it was said. This was relevant to whether the father’s behaviour could be modelled or mimicked by the children and whether the parenting abilities of the primary carer had been compromised as a result of the content and tone of the communication (s 69ZN of the FLA) (see [15]-[23]).
Second, McClelland J held that the rules of evidence were to be applied in respect to the issues of the events on 10 September 2013 (these events were the subject of criminal proceedings) and to the issue as to whether the father made threats to the children or to the mother in respect to the children (s 69ZT(3)). For the remainder of the issues, the rules of evidence would not apply (s 69ZT(1) and (2)) and His Honour would therefore have the discretion to consider the probative value of such evidence. His Honour stated, ‘evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in appropriate context and given appropriate weight, depending upon who was expressing the opinion and on what basis, and the establishment of the necessary background facts’ (see [24]-[34]).
Sawyer & Sawyer [2015] FamCA 982 (10 November 2015) – Family Court of Australia
‘Application to discharge the icl’ – ‘Independent children's lawyer’ – ‘Legal practitioners’ – ‘Negligence or bias’
Proceedings: Numerous applications including an application to discharge the ICL.
Facts: The mother and the father separated in 2009.There were three children of their relationship. In 2012, a final parenting order was made with the consent of the parties and the Independent Children’s Lawyer (ICL). There was continued conflict between the parents. Numerous applications were considered by the court in this case in particular, an application brought by the father to discharge the ICL.
Issues: Whether the ICL had been negligent and demonstrated bias towards the mother?
Reasoning/Decision: The application was dismissed. Forest J referred to his previous discussion (in Dean & Susskind [2012] FamCA 897 at [19]-[28]) of the principles applicable to such an application:
‘…
The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.[20]
I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL. [21]
…
It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal. [26]
Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case’. [27]
The father submitted a number of facts as evidence of bias. First, the ICL sought the appointment of a new, female report writer (Ms C). The father argued that the ICL failed to give him an opportunity to argue against Ms C’s appointment and, by retaining Ms C, evidenced ‘significant gender bias’ by removing ‘the only male person within our entire court process’. The fact that the ICL disagreed with the father on the issue of appointing a new family report writer, as she was entitled to do, did not prove that the ICL failed to adequately consider the father’s argument. Further, the selection of a report writer alone, who happened to be female, did not demonstrate or prove gender bias (see [58]-[63]).
Second, the father argued that the ICL demonstrated negligence or bias against him because she would not give him a copy of her instructions to the report writer. Forrest J noted that there is nothing in the Federal Circuit Court Rules or the Family Court Rules that obliges an ICL to provide copies of her instructions to an expert retained by her to each of the parents. Further, the father did not actually request the ICL to provide him with a copy of her instructions; he instead asked whether he would receive a copy of the instructions to which the ICL replied ‘you don’t see the letter of instruction’. In these circumstances, the ICL had not demonstrated negligence or bias that warranted her disqualification (see [65]-[70]).
Third, on the day of the interviews for the report, the father argued that the ICL demonstrated bias in directing the waiting arrangements in her office for the parents and children. Forrest J held that, at the interim stage, where the evidence invited a number of possible findings that could not be made without cross-examination of deponents, he was not in a position to say that the ICL had acted in a way that warranted her immediate discharge (see [71]-[78]).
Finally, the father asserted that the ICL was incompetent as well as negligent and biased against him. Forrest J was not persuaded by the father’s evidence and held that (see [79]-[81]):
‘It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required’.
Theophane & Hunt [2014] FamCA 1038 (24 November 2014) – Family Court of Australia
‘Family reports’ – ‘Impact of loss of relationship with parent’ – ‘Independent children’s lawyer’ – ‘No contact orders’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Sexual and reproductive abuse’ – ‘Statutory framework’ – ‘Systems abuse’ – ‘Vexatious proceedings’
Proceedings: Application for final parenting orders.
Facts: The parties had one child together. During the relationship, the mother alleged that the father often forced her to have non-consensual sex with him. The parties separated and the mother obtained a DVO against the father. The mother initiated proceedings seeking parenting orders and over the next four years a number of parenting orders were made and amended. However, after an incident at handover, the wife formed the belief the husband would abduct or remove the child from her care, and she attacked the father whilst in a dissociative state. She was convicted of unlawful wounding and sentenced to 18 months imprisonment, and immediately released on probation.
The applicant father sought orders for sole parent responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. He argued that the mother presented an unacceptable risk of sexual, physical and emotional harm to the child (the mother suffered sexual abuse as a child). At the time of these proceedings, the father was committed to stand trial on six charges of rape of the mother and one charge of grievous bodily harm against the mother.
The mother sought orders, supported by the Independent Children’s Lawyer, that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication with the father. She later amended her orders and sought to include provision for a card or letter for her birthday and for Christmas. The mother sought no contact as she believed any continued interaction between her and the father in relation to the child, was likely to adversely affect her capacity to parent the child.
Issue/s: What parenting order was in the best interests of the child?
Reasoning/Decision: Orders were made providing for the mother to have sole parental responsibility for the child and sole custody of the child, and for the father’s access and communication with the child to be limited to postal correspondence twice a year until the child turned eighteen. His Honour also made a vexatious litigant order against the father, restraining him from bringing further proceedings without leave of the court.
In relation to making a no contact order, his Honour stated that it is a serious matter that a child neither spend time with nor communicate with a parent. Accordingly, such orders ought to be restricted to cases where the outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Three scenarios were considered in which ‘no contact’ orders had been made in the past. First, these orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child. Second, ‘no contact’ orders have been made where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed (on the basis of protecting the child from the consequences of that parent’s belief): Re Andrew. Finally, this approach was taken one step further in Sedgley & Sedgley where the Court held that while the welfare of the child may require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation (see [55]-[58]).
The best interest considerations in s 60CC let the court to determine the child live with her mother. His Honour accepted that by time the child turned 12 she would likely come into conflict with the father and was at real risk of harm from his coercive, controlling, dominating and self-serving personality traits (see [177]-[178]). Further, the father was to have no contact with the child except for a card/letter at Christmas and on the child’s birthday. It was found that the father deliberately calculated his interaction with the mother with a view to destabilising her mental health conditions, and even the smallest opportunity for debate or conflict with the mother would be seized upon by the father. If the mother was required to continue to interact with the father in any form of co-parenting, there was a substantial risk that she will either attempt to kill herself, attempt to kill the father, or both.
It was ultimately decided that the prospect and magnitude of the risk of harm to the child if her mother was required to maintain contact with the father far outweighed any benefit the child would obtain by a continuation of any time or communication with her father. It was held that the best interests of the child lay with making a no contact order.
In relation to family violence, his Honour was satisfied that on occasion the father had engaged in non-consensual sexual intercourse with the mother. However, it was both unnecessary and undesirable to make a finding regarding the father’s conduct in relation to the criminal offence of rape (see [168]-[169]). However, the father’s controlling and domineering behaviour was considered and had bearing on the court’s decision for no contact (see [170]-[171]).
His Honour considered each of the many proceedings instituted by and conducted by the father and was “satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously.” He was “therefore satisfied that the father has frequently instituted or conducted vexatious proceedings.”[243]
At [246] his Honour stated:
I am satisfied that many of the applications that the father has brought or prosecuted in relation to the mother have been vexatious, although I accept that some, on occasion, have had merit. Some have been vexatious in the sense that they were intended to harass and intimidate the mother into either a further destabilisation and perhaps dissociation, or to attempt to otherwise coerce her to his will. Some were vexatious as being without reasonable foundation. Some may have been both.
And at [248]:
I accept that it is a grave matter to deny a parent the opportunity to litigate in relation to their child. However upon analysis, my order does not prevent the father doing so per se: if there is a legitimate basis for further litigation, sufficient to warrant a grant of leave, then he may do so. However he cannot be trusted with the unfettered right to issue proceedings against the mother in relation to the child, because he will abuse it. For that reason, any application for leave should be, in the first instance made ex parte: s 102QE(4).
Note: this case was confirmed on appeal, see Theophane & Hunt and Anor [2016] FamCAFC 87.
Cannon & Acres [2014] FamCA 104 (6 March 2014) – Family Court of Australia
‘Family violence’ – ‘Parenting orders’ – ‘Systems abuse’ – ‘Vexatious litigant’ – ‘Views of the child’
Proceedings: Parenting orders and vexatious proceedings order.
Facts: Over many years, the mother and the 12 year old child experienced harassment, physical violence and stalking behaviour by the father. The father had little or no insight into the impact of his behaviour on the child. This was the third final parenting hearing. The current proceedings were brought about by the father in circumstances where the application was doomed to fail. Seeing the profound impact of these fresh proceedings on her mother, the child resolved that she no longer wanted to see or communicate with her father. Benjamin J was satisfied that the views were her own.
Issue/s:
•
What parenting orders were in the best interests of the child?
•
Whether in the circumstances of this proceeding a vexatious proceedings order should be made and if so the nature and extent of that order.
Reasoning/Decision: In making parenting orders, Benjamin J noted that the presumption of equal shared parental responsibility in s 61DA of the Act did not apply because there were reasonable grounds to believe here that the father had perpetrated family violence. This family violence included the father’s entrenched pattern of behaviour (referred to by a psychologist), the father’s stalking behaviour, the verbal abuse, harassment and the assaults by him on the child. Further, shared parental responsibility could not effectively operate given the views of the child, the approach adopted by the father and the impact upon the mother. Accordingly, Benjamin J made an order that the mother have sole parental responsibility for the child (see [379]-[384]). Benjamin J also made an order that the child spend no time with the father and have no communication with the father (see [387]-[404]).
Benjamin J made a vexatious proceedings order prohibiting the father from instituting further proceedings without leave. This order was made under s 102QB(2) of the Family Law Act 1975 (Cth). At [420], His Honour noted that the fundamental differences between the old section (s118) and s 102QB were: (1) the test was no longer a court having frivolous or vexatious proceedings before it but rather whether or not there was a history of a person having frequently instituted or conducted vexatious proceedings; and (2) Vexatious proceedings were now defined by statute in s 102Q(1).
To make an order under s 102QB(2), Benjamin J noted at [438] that a two part threshold test needs to be met, namely:
•
That there have been vexatious proceedings instituted or conducted in Australian courts or tribunals; and
•
That the person, in this case the father, has frequently instituted or conducted such proceedings.
Applying this test, Benjamin J proceeded in three parts. First, His Honour determined a number of proceedings initiated by the father constituted vexatious proceedings on the facts (see [441]-[481]). Second, His Honour held that the proceedings amounted to the father ‘frequently’ instituting and conducting vexatious proceedings. In making this determination, Benjamin J noted that the test of ‘frequently’ was used as opposed ‘habitually and persistently’. The term ‘frequently’ is a relative term and is to be considered in the context of the facts of an individual case and, in this case, in the context of the litigation between these parties. This test was said to be satisfied on the facts (see [482]-[494]).
Finally, with the threshold being met, Benjamin J considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. His Honour noted that a vexatious proceedings order must be considered in the context where there is a need to balance the serious step of restricting a person from commencing proceedings against the need to protect the mother and the child from the constant impact of litigation. In the circumstances, a vexatious proceeding was made (see [495]-[540]).
Modlin & Anstead and Anor [2013] FamCA 955 (6 December 2013) – Family Court of Australia
‘Family reports’ – ‘No contact orders’ – ‘Parental capacity’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Self-represented litigants’ – ‘Single expert report’
Proceedings: Application for parenting orders.
Facts: The mother and the father, who both had compromised mental health: the mother diagnosed as Bipolar and the father also being previously diagnosed as Bipolar, had two children together. Both children had intellectual and developmental disabilities. The parties separated and reconciled several times before final separation, with the mother obtaining Apprehended Domestic Violence Orders (ADVO) on a number of occasions. The father breached one of these orders in February 2010 by breaking into the mother’s home and assaulting the mother. He was charged and spent time in a psychiatric facility. The mother formed a relationship with another man (‘the stepfather’). In 2011, one of the children went temporarily missing in a National Park under the care of the father, the father deliberately sent photographs of his penis to the mother, and one of the children told the mother that the father swore at her. Contact ceased between the father and the children and the mother received victim’s compensation in relation to domestic violence by the father. Proceedings were commenced in relation to the parenting of the children.
Issue/s: It was agreed that the mother and the stepfather would have parental responsibility for the children. However, some of the remaining issues were –
•
Whether the father should have shared parental responsibility or no responsibility for the children;
•
Whether or to what extent the father should spend time or communicate with the children.
Reasoning/Decision: Orders were made giving the mother and stepfather equal shared parental responsibility for the children, giving the father no parental responsibility, making provision for the children to live with the mother and stepfather and to have no contact with the father, restraining the father from approaching the children, their school and residence and the parents from discussing proceedings with or near the children.
The Court found that the s 61DA presumption of equal shared parental responsibility did not apply as the father engaged in family violence. Further, in relation to the children’s best interests, including consideration of the evidence about family violence, the Court determined that in any case the presumption would be rebutted on the evidence. It was held that any further contact between the father and the mother would destabilise the mother and prevent her from being able to adequately care for the children (see [197]-[205]). Additionally, on this basis, it was ordered that the father spend no time with either child (see [206]-[210]).
Loughnan J also made a number of orders restraining the father from communicating with the children or the mother or stepfather. These orders were necessary for the physical and mental protection of the mother, especially in light of the evidence of family violence. However, Loughnan J ordered that, if required, the father communicate with the step-father through a post office box and be notified if the family relocated from the region (see [217]-[232]).
Schieffer & Schieffer [2013] FamCA 168 (20 March 2013) – Family Court of Australia
‘Best interests of the child’ – ‘Children’ – ‘Inconsistency of parenting orders with existing family violence order made by state court’ – ‘Independent children’s lawyer’ – ‘Intersection of legal systems’ – ‘Living arrangements’ – ‘Parenting orders and impact on children’ – ‘Presumption of equal shared parental responsibility’ – ‘Protection orders’
Proceedings: Application for parenting orders.
Facts: The parties separated and made consensual arrangements for the care of their child. In June 2012, the father detained the child citing a belief that the child had been sexually abused by the mother’s partner. Subsequently the mother, having happened upon the child and the father’s partner, attempted to detain the child herself. This resulted in an Apprehended Violence Order (AVO) being made against the mother in favour of the father’s partner. It applied to the child and the father as well as they lived with Ms E.
The mother refuted the allegation of sexual abuse but her relationship with her partner had ended and the mother acceded to an order precluding any future contact between the child and her former partner. The father then contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.
Issue/s: What orders regarding the residence of the child and shared parental responsibility were in the best interests of the child?
Reasoning/Decision: The Court was persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistent with their mutual wish, the Independent Children’s Lawyer’s suggestion and the Family Consultant’s recommendation (see [95]-[100]). His Honour ordered that it was in the child’s best interests to live predominately with the mother. Although both parents were equally capable of meeting the child’s intellectual needs, he considered that the mother was better able to meet the child’s physical and emotional needs (see [106]). The child was to spend substantial and significant time with the father (see [105], [109]-[116]).
The parenting orders were inconsistent with the existing family violence order, as the AVO prohibited the mother from approaching and contacting the child or the father. Although the order made an exception for contact that occurred pursuant to the Act, it was only for the restricted purpose of ‘counselling, conciliation, or mediation’. It was noted that where the terms of the parenting and family violence order were inconsistent, the parenting order should take precedence to facilitate communication between the parents regarding the child and to ensure the child was exchanged for periods of contact (see [91]-[94]).
Damiani & Damiani [2012] FamCA 535 (9 July 2012) – Family Court of Australia
‘Court to consider family violence (60cc)’ – ‘Family violence in property proceedings’ – ‘Kennon adjustment’ – ‘People with mental illness’ – ‘Property proceedings’
Proceedings: Application for property orders.
Facts: The parties married and lived together for 19 months. They had one child. The husband contributed the bulk of the capital to the marriage and was on a far superior income. The wife had cared for the child since separation, nearly eight years prior. During the marriage, the husband perpetrated family violence against the wife on five occasions, over a period of 15 months. This caused the wife to suffer from post-traumatic stress disorder. The wife claimed the family violence made her contributions in the role of homemaker and parent significantly more arduous. The husband had financially supported the wife and the child during the period since separation.
Issue/s: Whether the court should make a Kennon style adjustment in the property settlement proceeding?
Reasoning/Decision: The Court referred to the Full Court in Kennon where the principles regarding family violence making contributions more arduous lie. The Full Court’s further refinement of the Kennon principles in Spagnardi & Spagnardi was also noted (see [138]-[144].
The Court discussed the approach regarding family violence in property proceedings as broken down into three steps: (1) Make findings of fact about one party’s conduct; (2) (If applicable) make findings about the physical or psychological effect of the conduct on the other party; and (3) Make findings of fact about the effect of the conduct of one party upon contributions made by the other party. It was also noted that it could not be assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. At trial, the wife had to establish to the judge’s satisfaction a connection between any proven family violence in the case and the contributions she made (see [145]).
On the facts, Watts J first concluded that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place were made significantly more arduous by the violence of the husband. Second, while His Honour also held that the wife’s role as parent post-separation was made significantly more arduous by the family violence during co-habitation, His Honour observed that it was more difficult to make such an assessment. The wife did experience apprehension and heightened emotion around dealing with the husband’s time with the child after the separation. However, the effect of violence on contributions was not constant over the previous eight years, with the wife’s post-traumatic stress disorder having significantly dissipated (see [174]-[179]). Accordingly, it was appropriate to increase the wife’s assessed contributions by 25 per cent for the duration of the relationship and by 5 per cent post separation to take account of the effect of the husband’s conduct on the mother (see [179].
Russell & Russell [2012] FamCA 99 (7 March 2012) – Family Court of Australia
‘Alleged breach of indian dowry law’ – ‘Dowry’ – ‘Family law’ – ‘Final parenting and child orders’ – ‘History of domestic and family violence’ – ‘Overseas relocation to india’ – ‘Parenting orders’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Rebuttal of presumption of equal shared parental responsibility’ – ‘Relocation’ – ‘Sole parental responsibility order’
Matter: Application for final parenting and child orders.
Proceedings: Final parenting and child orders hearing, including application for overseas relocation.
Facts: The mother had limited English skills, poor work prospects and no family support in Australia and there was a high level of conflict between the parties exacerbated by cultural issues. Both parties’ extended families remained in India. The mother alleged a history of family violence perpetrated by the father against the mother. The father stated that it was his intention to remain in Australia regardless of the final outcome. There were allegations that India’s dowry laws had been breached by the demand for and payment of dowry by the wife’s family to the husband’s family.
Issue: Was the presumption of shared parenting responsibility rebutted? Ought the mother be allowed to relocate to India with the child?
Judgment: Presumption of shared parenting responsibility rebutted, relocation allowed.
Young J found the presumption of shared parental responsibility was rebutted due to the conflict between the parties, their lack of communication and cultural issues.
The mother was permitted to relocate to India where she had family support available.
Kreet v Sampir [2011] FamCA 22 (18 January 2011); (2011) 252 FLR 234; (2011) 44 Fam LR 405 – Family Court of Australia
‘Forced marriage’ – ‘Marriage occurring in a country other than australia’ – ‘Nullity application’
Proceedings: Nullity application.
Facts: Ms Kreet (the wife), an Australian born woman, married Mr Sampir (the husband) on June 2009 in India. She travelled to India with her parents believing she was going to marry her Australian boyfriend, Mr U. Upon arrival, her parents confiscated her passport and was introduced to Mr Sampir. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped if she refused to marry Mr Sampir. Under duress, the wife married Mr Sampir and submitted his Australian visa application to the authorities. She returned to Australia, resumed her relationship with Mr U and withdraw her sponsorship of the respondent’s visa application. She obtained an indefinite Intervention Order against her father.
Issue/s: Whether the marriage was void?
Reasoning/Decision: Section 23B(1)(d) of the Marriage Act 1961 (Cth) states that a marriage is void if ‘the consent of either parties is not real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.
While the legislation does not define duress in the context of a marriage, Cronin J found that ‘there was no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes: In the Marriage of S (1980) FLC 90-820’ (see [39]).
Cronin J was satisfied that ‘the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress’ (see [43]).
Harridge & Harridge [2010] FamCA 445 (4 June 2010) – Family Court of Australia
‘Children’ – ‘Risk assessment’ – ‘Unacceptable risk’
Proceedings: Parenting orders.
Facts: The father of the two children subject to the parenting proceedings was convicted of three offences involving child pornography.
Issue/s: What parenting orders were in the best interests of the child?
Reasoning/Decision: Although this case did not relate to family violence, it contains observations relevant to risk assessment. The Court held that an allegation of potential risk of harm ought not to divert the court from the central task of assessing the best interests of the children. At [53] Murphy J quoted from an article by psychiatrist and barrister, Mahendra, who stated that risk assessment in any situation involves, in essence, asking the following questions:
•
What harmful outcome is potentially present in this situation?
•
What is the probability of this outcome coming about?
•
What risks are probable in this situation in the short, medium and long term?
•
What are the factors that could increase or decrease the risk that is probable?
•
What measures are available whose deployment could mitigate the risks that are probable?
Maluka & Maluka [2009] FamCA 647 (24 July 2009) – Family Court of Australia
‘Children’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Family law’ – ‘History of domestic and family violence’ – ‘Stalking’ – ‘Systems abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’
Matter: Application that mother have sole parental responsibility, the children live with the mother, the mother be permitted to change the children’s names and relocate without notice to the father, that the father be restrained from bringing applications in relation to the children for a period of time.
Facts: The mother alleged serious history of domestic and family violence throughout the history of the relationship, including “serious assaults of the mother, stalking, vandalism to property of the mother and her present partner, intimidation, threats of violence (including a history of death threats), verbal abuse, controlling behaviour, isolation and dominance”[4] such that the mother and children live in terror of the father and have done for years.
Held: Mother have sole parental responsibility for the children and they reside with the mother, the mother be permitted to everything necessary to change the children’s surnames, the mother be permitted to relocate the residence of the children to any place in Australia without notice to or permission of the father, the father be subject to a restraining order.
[396] “In many ways the facts as between the parties that I have determined in this case fit most, if not all, of the indicators of coercive controlling violence. The father has used coercion, control, violence, intimidation and threats throughout the relationship, including after separation. He seeks to intimidate and control the mother with the attendant violence, abuse, isolation and aggression. From time to time he focuses this on the children. He dominates and controls the children, particularly X, but his behaviour with regard to Y and her reaction to his verbal abuse of her in June 2008 is indicative of his continuing coercive controlling violence.
[397] The father exercised economic power to control and manipulate the mother and effectively the children. He endeavoured to isolate mother and in effect continues to do so. In that process he denies or minimises his involvement and culpability.
[399] The effect of that long term violence, control and manipulation imposed by the father on the mother has from time to time undermined the mother’s parental authority and undermined her parenting role…”
Note this case was subject to further litigation, although the judge’s comments about the type of family violence experienced were not challenged. See for example Maluka & Maluka [2011] FamCAFC 72; (31 March 2011).
HZ & State Central Authority [2006] FamCA 466 (7 June 2006) – Family Court of Australia
‘Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Parenting proceedings’ – ‘Separation’
Matter: The mother’s appeal against orders made by Bennett J on 11 April 2006 requiring the return to Greece of three children, C, D and E pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
Facts: The mother was an Australian-born woman of Greek parentage and the father was Greek. They met and married in Greece and throughout the marriage the mother and three children resided with the father’s parents in Greece. With the father’s consent the mother brought the children to Australia for what she said was a holiday and conceded that the habitual residence of the children was Greece. There was evidence of threatening text messages from the husband to the wife and the eldest child’s evidence of the father’s violence and threatening behaviour towards the mother and his own mother in the presence of the children supported the mother’s allegations.
Grounds: The trial judge erred in failing to find that Article 13(b) (grave risk of physical or psychological harm or place them in an intolerable situation) and Article 13(c) (the eldest child’s views should be taken into account) should prevent the return of the children.
Held: Appeal dismissed. The court was unable to identify error in the trial judge’s decision.
The court acknowledged the limitations of the Hague Convention in cases where domestic and family violence is alleged:
[48] The operation of the Convention which has the effect of potentially sending a mother back into a situation of risk to her own physical wellbeing has been a matter of significant academic criticism …
[75]…As we have already indicted, the return of these children to Greece was anticipated to be in their mother’s company. She had found accommodation for herself remote from that of the father. She led no evidence to suggest that the Greek authorities would be unable to provide her and the children with appropriate protection pending her utilising lawful means to relocate the children from Greece. The finding by the trial Judge that the mother had not persuaded her that the return of the children to Greece would raise a grave risk of harm to the children or otherwise place them in an intolerable situation was a finding clearly open to the trial Judge.
[78]…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.
T and N (2003) FLC 93-172; [2003] FamCA 1129 (4 November 2003) – Family Court of Australia
‘Anger management course’ – ‘Applications’ – ‘Applications and orders for child residence, contact and parenting orders (in fam law proc)’ – ‘Children’ – ‘Consent orders’ – ‘Contact proceedings’ – ‘Family violence’ – ‘Inadequate undertakings’ – ‘Independent children’s lawyer’ – ‘Judge refusal to accept consent orders for unsupervised contact’ – ‘Legal representation’ – ‘Parenting proceeding’ – ‘People affected by substance abuse’ – ‘People with children’ – ‘Safety and protection of victim and witnesses’ – ‘Women’
Proceedings: Orders sought by consent for supervised and unsupervised time with the father
Facts: The parties had two children. There was a history of violent and abusive conduct by the father against the mother and one of the children (including that he bit the child as a baby). This resulted in a number of periods of separation and reconciliation, with a number of Apprehended Violence Orders being brought against and breached by the father (see [17]-[24], [27]-[28]). The father also regularly smoked cannabis (see [25]-[26]). In April 2001, the mother left the family residence without notice, taking the children with her. At the hearing, the parties attempted settlement. The parties and the Independent Children’s Lawyer proposed consent orders for children to progress from supervised to unsupervised to block periods of time with the father, who would give undertakings regarding his conduct, discipline of the children, substance use and participation in an anger management course.
Issue/s: What orders were appropriate in the best interests of the children?
Decision and Reasoning: Moore J declined to make the consent orders as proposed as the untested evidence raised concerns for the judge that the orders may not be in the children’s best interests. Instead, the judge made orders by consent for supervised contact only. The allegations against the father indicated him to be a violent and abusive person who represented a high risk of harm to the well-being of the mother and a high risk of harm to his children.
While Her Honour acknowledged that the parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor, consent does not displace the obligation of the Court to make orders that are in the best interests of children (see [39]). Moore J also expressed her concern that the Independent Children’s Lawyer would provide support for the proposed consent orders in the face of behaviour that had the potential to place the children in serious jeopardy and in light of orders that would give no protection whatsoever to the children (see [40]).
M & M [1998] FamCA 1742 (12 November 1998) – Family Court of Australia
‘Children’ – ‘Contact’ – ‘Exposing children’ – ‘Family violence’ – ‘Impact of violence on children’ – ‘Inability to acknowledge inappropriateness of behaviour’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Supervised by court’
Proceedings: Contact orders.
Facts: The parents had two children together (B and E) and the mother had another son from a previous relationship (D). The children had witnessed violence by the father against their mother, siblings and extended family. The father had several convictions for assault against the mother and one against D, and had been subject to AVOs. After separation, B and E lived with the father, with interim orders made for the mother to have contact with the children. At trial, the parties agreed that B and E should live with the mother but a number of issues were left to be determined. At hearing, a counsellor gave evidence that both children displayed concerning behaviours consistent with early onset and repetitive physical violence.
Issue/s: One of the issues was what contact should the children have with the father?
Reasoning/Decision: On the evidence, the Court held that it was in the children’s best interest that all but in the very short term they should have no contact with the father. Orders were made to reduce contact over the space of 12 months to minimise the distress that could be caused to the children by immediate complete separation (see [96]-[100]). The Court held that the father’s abusive behaviour presented a ‘multi-faceted danger for the children’ including danger of injury as well as “fear, insecurity & vigilance”. It was held there was a risk of the children learning behaviour from the father which would affect their future interactions e.g. the daughter accepting abuse as part of life and the son believing violence is acceptable. See [94]-[95].
In the Marriage of JG and BG (1994) 122 FLR 209; (1994) FLC 92-515; (1994) 18 Fam LR 255 (30 September 1994) – Family Court of Australia
‘Child welfare’ – ‘Children’ – ‘Custody proceedings’ – ‘Impact of domestic violence on children’ – ‘Impact of family violence on children’ – ‘Parenting’ – ‘Parenting proceedings’ – ‘Parties represented by counsel’ – ‘People with children’ – ‘Relevance of family violence in cases concerning the welfare of children’
Facts: The case concerned the custody of two children aged four and two. The wife alleged that the husband had been physically and verbally violent towards her on a number of occasions.
Issue/s: What is the relevance of family violence in custody, guardianship and access matters?
Decision and Reasoning: The court accepted that the relevance of family violence will vary according to the nature of the proceedings.
Chisholm J went on to consider the relevance of family violence in proceedings relating to children. His Honour considered at [257] that although it is ‘not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims’, family violence is by no means irrelevant. His Honour held that ‘[family violence] is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration’. The standard of proof is the civil standard on the balance of probabilities. However, the conduct of a parent is relevant in custody matters only to the extent that it relates to the welfare of the children.
Where violence is directed at the children themselves, or occurs in the presence of the children, it is obviously and directly relevant to their welfare (see [260]). However, other forms of violence could also be relevant to the welfare of the children such as violence affecting the custodial parent, threats, etc. The Court must assess the nature and extent of the harm in light of the evidence and findings before them. See [261].
The Court also stated that it may be possible for the court to decline to make findings in relation to family violence, where it could determine the case without reference to them.
In the Matter Of: Re K Appeal [1994] FamCA 21; (1994) FLC 92-461 (10 March 1994) – Family Court of Australia
‘Alleged murder of mother by father’ – ‘Custody’ – ‘Family law’ – ‘Murder’ – ‘Over-emphasis of conduct of father’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Prejudice’ – ‘Separate representation’ – ‘Welfare of child’
Matter: Father, grandparents and paternal aunt’s appeal against orders granting sole guardianship and custody of the child to the maternal aunt and permission for her to remove the child from Australia to the United States where she resided.
Facts: The mother died and the father was charged with her murder and was awaiting trial at the time of the hearing before the trial Judge. Those proceedings concerned applications by the maternal aunt and the paternal grandparents and aunt for custody of the only child of the marriage. The applicant father indicated that he supported the application of the grandparents and paternal aunt that they be granted custody of the child. The trial Judge made a finding that on the balance of probabilities the husband shot the wife.
Grounds:
Husband:
•
As he was unrepresented and awaiting trial for murder the trial judge should have made interim rather than final orders, exercised his discretion to stay or adjourn the proceedings, or at least adjouned final determination until the conclusion of the criminal proceedings.
•
The trial judge failed to give reasons or adequate reasons for his decision to make final orders.
•
It was neither necessary or desirable for his Honour to have made the finding that the husband shot the wife.
Grandparents and paternal aunt:
•
The trial judge failed to give adequate weight to the evidence of Mrs Holmes in support of the appellants’ case, particularly in relation to methods of dealing with grief in eastern European families.
•
The trial judge over-emphasized the conduct or involvement of the husband in the wife’s death and this influenced him against the proposals of the appellants.
Intervention by Commonwealth Attorney-General:
The case warranted the appointment of a separate representative pursuant to s 65 of the Family Law Act because (a) permanent removal of the child from the jurisdiction was contemplated which would likely lead to cessation of any contact with the father; and (b) the relationships between and circumstances involving the parties and interveners.
Decision and reasoning: Appeal dismissed.
In considering the Attorney-General’s intervention, the Full Court (Nicholson CJ, Fogarty and Baker JJ) suggested guidelines for appointment of separate representatives for children involved in proceedings, one of which was that separate representatives should normally be appointed where there is an apparently intractable conflict between the parents:
[95] In this regard we lay stress upon the words "intractable conflict". There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the Court similarly have the assistance of such a person to present the child's point of view.
[96] If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the Court: see Law Council of Australia (1989) "Law Council Submission on Role of Separate Representatives" Vol. 4 No. 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the Court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an "honest broker" as between the child and or the parents.
Murray & Director of Family Services ACT [1993] FamCA 103 (6 October 1993) – Family Court of Australia
‘Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Motorcycle gang’ – ‘Parenting proceedings’ – ‘Separation’ – ‘Weapons’
Matter: Appeal against Hague Convention return order.
Facts: The husband was a member of the New Zealand motorcycle gang known as “the Mongrel Mob”. The mother brought her children aged five, four and two to Australia from New Zealand. Her evidence was that she was the victim of several violent attacks which included head butting, punching, kneeing her at the base of the spine. She had received death threats. The acts of violence either took place in the presence of or in close proximity to the children.
She said the husband had an arsenal of weapons which included firearms, knives, chains and meat cleavers and was likely to use the weapons against her. The husband whilst admitting to a ‘turbulent’ relationship with the wife and some incidents of violence said her claims were exaggerated. The trial Judge had rejected regulation 16(3)(b) defence commenting that it was not possible to determine the veracity of the allegations and that the evidence relating to them would be available only in New Zealand.
Held: Appeal dismissed.
The Full Court in rejecting the mother's appeal characterised the evidence as:
“almost entirely directed at the prospective threat to the wife of a return to New Zealand and more particularly to a return by her to Dunedin.” [170]
They said:
[171] Whilst there is nothing that requires the wife to return to New Zealand, it is obviously desirable and from the point of view of the children that she does so. However, there is no requirement imposed by this court that she or they must return to Dunedin. It is open for her to return to another part of New Zealand where the danger to her may be less and it is of course open to her to seek orders from the New Zealand courts both for personal protection and interim and final custody immediately upon her arrival in New Zealand. She can also, if she wishes, seek leave from the New Zealand court to take the children to Australia.
[172] As his Honour pointed out, New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.
[173] It would be presumptuous and offensive in the extreme for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the courts.
[174] In our view and in accordance with the views expressed by this Court in Gsponer's case, the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available…
[175] For us to do otherwise would be to act on untested evidence to thwart the principal purposes of the Hague Convention which are to discourage child abduction and where such abduction has occurred to return such children to the country of habitual residence so the courts of that country can determine where or with whom their best interests lie. These children are New Zealand citizens who have lived all their lives in New Zealand and it is for a New Zealand court to determine their future.
In the marriage of Merriman and Merriman [1993] FamCA 115; (1994) FLC 92-497; (1993) 116 FLR 87 – Family Court of Australia
‘Allegations of violence and abuse’ – ‘Interim custody application’ – ‘Issues of welfare of children and stability’ – ‘Physical violence and harm’
Proceedings: Interim custody application
Facts: Parties married in 1978 and separated under one roof in March 1993. There are 2 children of the marriage aged 13 and 9 at the hearing. There was corroborated evidence of violence perpetrated by the father on the mother. The husband was convicted of assault upon the wife earlier in the same year of the hearing. He was “ordered not to assault, molest or interfere with” the mother. Regardless of these orders he continued to contact the mother and make threats to her and her family. The husband also verbally abused and belittled the mother in front of the children during the marriage. There were also multiple occasions of physical abuse throughout the marriage. Since separation the husband had given the 13 year old daughter Rohypnol and shared a bed with her. He was advised by the Department of Community Services not to do this. Also post separation, the father took out a life insurance policy for the mother. The mother moved from the matrimonial home to her mother’s house in June 1993. The children remained with the father.
Issues: In light of the father’s history of domestic violence and threats, what interim arrangements should be made for the care of the children?
Reasoning/Decision: Due to the violence of the father, the Court held that he was a risk to the children both physically and developmentally (he is an “inappropriate role model”). It was held that the children were to remain in the former matrimonial home to “preserve stability for the children and for their safety” and their mother was to have interim care of the children. The father was restrained from coming within 2 miles of the home due to “serious concerns as to the safety of the wife and the children”.
Federal Circuit Court of Australia
Khoury and Ganem [2021] FCCA 869 (1 April 2021) – Federal Circuit Court of Australia
‘Allegations of serious family violence’ – ‘Application for no contact with father’ – ‘Application for sole parental responsibility’ – ‘Arranged marriage’ – ‘Child present’ – ‘Child's fear and anxiety’ – ‘Children’ – ‘Coercive control ** financial abuse’ – ‘Criminal charges’ – ‘Family law’ – ‘Independent children's lawyer’ – ‘Parenting applications’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Social isolation’ – ‘Strangulation’ – ‘Threats to family’ – ‘Threats to kill family’
Matter: Parenting applications: father’s application for interim orders that he and the child X attend ongoing reunification therapy at his expense and subject to the recommendations of the therapist, he spend supervised time with X; mother’s application that she have sole parental responsibility for X, X reside with her and X only spend time with the father in accordance with X’s wishes. The Independent Children’s Lawyer sought orders in the terms proposed by the mother, and a restraint on the father attending X’s school. Earlier final parenting orders made by consent had provided for X to have graduated contact from supervised contact to each Thursday to Sunday. Between 2013 and 2015 the father had sporadic contact with X and each alleged the other was to blame for the lack of contact. Proceedings were recommenced in 2018 and orders made for the parties and child attend therapy with a view to reunification. The reunification therapy was unsuccessful with the therapist reporting the session was terminated early due to the father’s inability to focus on the child’s feelings or regulated his behaviour in response to the child, pressuring the child who was crying and distressed, despite the therapists attempts to encourage the father to engage in behaviour which was not experienced by the child as threatening.
Among other orders the father sought orders for reunification therapy in circumstances where the mother argued it was not in the child’s best interests to see the father because of controlling behaviours, disrespect of women and extreme religious beliefs [98]. The father denies the mother’s allegations.[99]
Decision: Inter alia X reside with the mother, the mother have sole parental responsibility and the father have contact in accordance with X’s wishes, the father be restrained by injunction from attending or being within 500 metres of any school X attends, the mother obtain therapeutic counselling for X to better address her fears and anxieties.
Per Bender J:
[100] As has been set out in this judgment, therapeutic reunification counselling to assist in rebuilding the relationship between X and the Father was not successful and was a distressing and unhappy experience for X.
[101] [expert witnesses] both expressed the view that a further attempt at such therapy could be too distressing for X, especially given her current levels of anxiety and fear and her resistance to spending any time with the Father.
[102] Therefore, the real question for this Court is whether the risk to X of a meaningful relationship with the Father is outweighed by the emotional and psychological risk to X in forcing her to undertake further counselling in the hope that a relationship with the Father might be achieved.
Boden & Boden [2018] FCCA 82 (25 January 2018) – Federal Circuit Court of Australia
‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Parenting orders and impact on children’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility rebutted’ – ‘Unacceptable risk of harm’
Proceedings: Contested parenting application.
Facts: The father was physically violent and verbally abusive to the mother and children ([79]). There were two Domestic Violence Orders in favour of the mother ([217]). The two eldest daughters suffered from depression and anxiety, cut themselves, and had self-esteem issues ([2]). The youngest son was diagnosed with autism, but the father refused to accept the diagnosis, and refused to make arrangements to reduce the son’s emotional distress ([162]).
Issues: Parenting orders to be made.
Decision and Reasoning: Judge Willis identified ‘grave concerns’ about the father’s ability to regulate his emotions and about his parenting skills to independently parent ([248]). The children had ‘suffered catastrophically’ from their parents’ separation and their exposure to the family violence ([2]). Due to the father’s admissions to family violence, the presumption of equal shared parental responsibility was rebutted ([238]).
Judge Willis remarked at [247]:
I have the impression that the mother has significant insight into her own behaviour and that of all of the children. She is acutely aware and has the skills to deal with Z and Y cutting themselves, of them suffering depression and anxiety and having self-esteem issues. Some of these issues will, no doubt, be directly related to their exposure to family violence. Day in day out, experts in this Court talk about the effect of family violence in children and their inability to sustain relationships, become depressed and blame themselves for breakdowns. All of these things have happened for Y and Z.
Judge Willis ordered that the father undertake an anger management course, and that the mother undertake a Domestic Violence course in relation to the cycle of violence ([232]-[233]). The judge ordered that the son have limited contact with the father (see Orders).
Atkinson & Atkinson (No 3) [2016] FCCA 2284 (2 September 2016) – Federal Circuit Court of Australia
‘Coercive control’ – ‘History of domestic and family violence’ – ‘Parental responsibility’ – ‘Systems abuse’
Matter: Mother’s application for residence, sole parental responsibility and contact for child X; Father’s application for residence, sole parental responsibility and contact for child X.
Issues: Best interests of child, whether the Father has been violent towards the Mother; and whether the Mother suffered from any mental illness or disorder which “significantly negatively affects her parenting”.
Facts: Each party’s evidence was that the other was not an appropriate parent. The mother alleged the Father perpetrated family violence against her and the Father alleged the mother had a mental illness or disorder which caused her to manufacture malicious allegations against the Father. The father had engaged in a pattern of coercive and controlling behaviour by repeated texts and telephone calls and at least one late night attendance at her home. The Court expressed concerns that the Mother’s reports of the Father’s domestic violence towards her to hospital staff following hospital attendance whilst injured and pregnant were not investigated by the Department of Family and Children’s Services of New South Wales (“the Department”) as the parties had resumed their relationship when the mother refused service.
It emerged in cross-examination of the Father that he had failed to disclose his involvement in other litigation, in the Family Court with his ex-wife and various local courts in relation to other family violence matters. The Father had made repeated groundless, repeated, repeated allegations against the Mother to Police, the Department and various medical practitioners. He also failed to comply with procedural and counselling requirements expeditiously.
Decision and reasoning: Ordered that the mother have sole parental responsibility and reside with the mother, the father to have contact. The father denied all allegations against him and had a complete lack of insight into the impact of his behaviour.
The allegations raised by Mr Atkinson at various points in the proceedings have, on their face, appeared highly concerning. The Court has, accordingly, proceeded with some caution and consumed vast resources in the determination of serial Interim Applications. When each of those allegations, serious on their face, have been examined they have been found wanting substantial, if any, support. Indeed, the actions taken by Mr Atkinson in seeking to obtain evidence, photographing the child, presenting the child to a Doctor on a weekly basis and presenting the child to the Police, is, upon the evidence as it has unfolded, far more injurious to the child than that complained of. The repetition of those behaviours is a far greater concern as to future risk than anything complained of as regards the mother.[440]
In light of the findings that have been made by the Court regarding the perpetration of family violence by Mr Atkinson upon Ms Atkinson, it would be entirely unreasonable and onerous to impose upon Ms Atkinson a burden to consult and endeavour to make joint and consensual decisions with Mr Atkinson. To that end and whilst it is submitted on behalf of Mr Atkinson that the Court should find that these parents have “differing parenting styles rather than family violence”, I make clear that this submission is rejected. What has occurred in the relationship between Mr and Ms Atkinson is, I am satisfied, family violence.[473]
Corby & Corby [2015] FCCA 1099 (16 April 2015) – Federal Circuit Court of Australia
‘Admissibility’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Parenting orders and impact on children’ – ‘Recorded conversations’ – ‘Sexual and reproductive abuse’ – ‘Whether recordings were reasonably necessary to protect lawful interests’
Proceedings: Application for the admissibility of evidence.
Facts: On the first day of the final parenting hearing in relation to the parties’ only child X, counsel for the mother sought the Court’s leave to tender four short audio recordings of conversations between the mother and father that took place prior to separation. The mother accepted that these recordings were made without the knowledge of the father, that they are ‘private conversations’ and were therefore prima facie made in contravention of s 7 of the Surveillance Devices Act 2007 (NSW). However, counsel for the mother submitted that the recordings were admissible because the recordings were ‘reasonably necessary’ to protect her lawful interests (s 7(3)) or, alternatively, the evidence ought to be admitted under s 138(1) of the Evidence Act 1995 (NSW) because the desirability of admitting the evidence outweighed the undesirability of doing so.
Issue/s:
•
Whether the recordings were reasonably necessary to protect the mother’s lawful interests and consequently, admissible?
•
Whether the recordings ought to be admitted on the basis that the desirability of the evidence outweighed the undesirability of admitting the evidence?
Reasoning/decision: Sexton J held that the mother’s conduct was lawful under s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and therefore the recordings were admitted on this basis. In making this finding, Sexton J held that first, s 7(3)(b)(i) was satisfied in relation to the term ‘lawful interests’ as the mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to respond to the father’s demands for sexual activity: DW v R (see [19]-[23]).
Second, Sexton J was satisfied that the recordings were ‘reasonably necessary’ (‘reasonably appropriate’ as opposed to ‘essential’ and judged objectively at the time of the recordings) to protect those lawful interests: DW v R. Here, the mother made the recordings for the purpose of having evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself and the child from further behaviour. Sexton J stated that, ‘[w]hile the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted. If this was so, as the Court found in R v Coutts, it may not have been a realistic option for her to report her predicament to police and obtain a warrant for conversations with her husband to be recorded’ (see [29]). The evidence also disclosed that the father may have had a very different public face to his private face. The mother was not trying to obtain a confession but to establish her credibility if there was ever a dispute about what actually happened (see [24]-[31]).
Although the matter did not turn on the issue, Sexton J also considered whether the evidence should be admitted on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Sexton J concluded that had it been necessary, she would have exercised the discretion to admit the evidence for a number of reasons including that the evidence was highly probative to making parenting orders in the best interests of the child, the allegations were extremely serious and it was necessary for the court to determine if the child was at risk in the father’s care, the impropriety of the mother in making the recordings was not of the “worst kind”, and it was “unlikely” the mother could have gained consent to make the recordings (see [32]-[36]).
Federal Circuit and Family Court of Australia (Division 1) Appellate Division
Carter and Wilson [2023] FedCFamC1A 9 (10 February 2023) – Federal Circuit and Family Court of Australia (Division 1)
‘Appeal from order for equal shared parental responsibility’ – ‘Coercive control’ – ‘Context of coercive and controlling behaviour’ – ‘Controlling conduct’ – ‘Costs’ – ‘Equal shared parental responsibility’ – ‘Family law’ – ‘Father perpetrator’ – ‘Findings of family violence’ – ‘Genuine concerns for child's welfare’ – ‘Limitation of contact’
Matter: Mother’s appeal from order for equal shared parental responsibility.
Facts: A final parenting order made 8 April 2022 provided that the parties have equal shared parental responsibility for their child, X, born in 2016. The order was made subsequent to a consent order which provided for a graduated increase in the father’s contact with the child to the point he spends alternate weekends and one night in the alternate week with the father. The father had been physically violent towards the mother on one occasion and the father accepted that he had held his hand over his older daughter, Y’s mouth to prevent her screaming. No criminal charges were laid re Y’s allegations but she was named as the protected person in a protection order issued against the father and had not had contact with him since September 2017. The primary judge held that the father’s admission of violence against the mother was relevant to the determination that the presumption of equal shared parental responsibility did not apply to the matter. The primary judge held that the mother’s conduct in limiting the time the child spent with the father and her insistence upon supervision amounted to controlling conduct for the purpose of the definition of family violence in s4AB of the Family Law Act 1975 (Cth).
Held: Appeal dismissed, costs certificates issue in favour of the mother, the father and the independent children’s lawyer.
The primary judge’s error in finding that the mother’s behaviour amounted to controlling conduct did not impact the result of the case, and therefore the appeal was dismissed.
McClelland DCJ and Campton JJ) observed that ‘controversially… the primary judge also found that the mother’s conduct in limiting the amount of time the child spent with the father and her insistence upon such time being supervised amounted to controlling conduct for the purpose of the definition of family violence as set out in s 4AB of the Act’ [6], noting:
[16] In the context of the facts and circumstances of this case, we respectfully agree with Bennett J that the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1). In that respect, there was no finding that the mother’s concerns for the welfare of the child were other than genuine in the context where she had herself been the subject of one violent assault by the father and had witnessed the father’s admittedly unacceptable conduct towards Y. There was no finding that the mother acted capriciously or maliciously. Indeed, as noted by Bennett J, the mother was acting in accordance with orders of the Court after 30 January 2019.
[17] The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important. There was no finding that the mother was acting other than protectively towards the child. Such conduct, in the context of the Act, which has a strong focus on the promotion of the welfare of children and protecting them from being exposed to violence, cannot, in our respectful opinion, in the circumstances of this appeal, reasonably ground a finding of family violence as defined in s 4AB of the Act.
Bennett J observed:
[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over a child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
[85] In placing the mother’s behaviour in context, I assume that the relevant period during which the primary judge found that the mother’s behaviour constituted family violence was from the child’s birth until the first parenting order, that is, from 2016 to 30 January 2019. However, there is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father “initially” (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
[87] Whilst it is uncontroversial that the mother did not allow unsupervised time between the father and the child when she and the father were living separately and apart prior to orders being made, the primary judge does not identify the extent to which the father’s limited participation in the first three years of the child’s life is attributable to the mother’s behaviour, or why the control exercised by the mother was not consistent with steps taken by a parent who is acting protectively.
[88] The primary judge refers to the mother’s behaviour as controlling of the child, the father and of the child’s relationship with the father. However, his Honour’s reasons do not include an analysis of the evidence or findings about the respects in which he was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.
Isles v Nelissen [2022] FedCFamC1A 97 (1 July 2022) – Federal Circuit and Family Court of Australia (Division 1)
‘Child abuse’ – ‘Child exploitation material’ – ‘Child protection’ – ‘Children’ – ‘Family law parenting’ – ‘Risk of sexual abuse of child by father’ – ‘Sexual assault’ – ‘Sexual interest in children and adolescents’ – ‘Unacceptable risk’ – ‘Use of tendency evidence’
Matter: Appeal against family law parenting decision.
Facts:
The appellant father and first respondent mother had four children. When he was nearly 7, their eldest son alleged that his father had sexually assaulted him. As a result, the mother sought to prevent the father from having access to all four children. The father argued that the mother had encouraged the son to make false allegations against him. The mother agreed to consent orders allowing the father to have unsupervised access to the children knowing that the second respondent, the Department of Communities, would intervene to prevent this [66]. The independent children’s lawyer was also party to the proceedings.
At trial, the central issue was whether the father posed an unacceptable risk of harm to the children [69]. The primary judge found that, although it was not possible to find on the balance of probabilities that the father had perpetrated the abuse, he posed an unacceptable risk to the children and contact should be supervised [75].
Grounds:
(1) In relation to the standard of proof, the primary judge misapplied s140 of the Evidence Act (balance of probabilities in civil cases) and should have made a finding about unacceptable risk on this basis.
(2) In relation to tendency evidence, the primary judge considered tendency evidence that should not have been admitted under Part 3.6 of the Evidence Act 1995 (Cth), regardless of the father’s failure to object [98].
Held: Appeal dismissed.
The court noted the comprehensive and prescriptive requirement to consider “unacceptable risk” when making parenting orders:
[58] …s 60CG of the [Family Law] Act [1975] exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interest will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss4(1) and 4 AB of the Act respectively.
(1) On the standard of proof, the primary judge was correct in separating the need to make a finding on the balance of probabilities in relation to fact (ie did the father sexually assault his son?) and the question of future risk (ie is the father an unacceptable risk to the children?) [83]. While the question of future risk is ‘evidence-based’ and ‘not discretionary’ [85], the court held that even if the risk were only possible, not probable, it would be unacceptable [86].
(2) On tendency evidence, under Part VII of Family Law Act (children), large tranches of the Evidence Act do not normally apply [88]. However, given that the mother and Department sought a finding that the father had committed the criminal offence of sexual assault, the primary judge decided under s69ZT(3) before proceedings had commenced that the Evidence Act would apply [91]-[93]. The relevant tendency evidence was the father’s apparent sexual interest in other adolescents and his alleged interest in child exploitation material [103]. Although the father could have objected to the admission of this evidence at trial, he did not and so could not object on appeal [95, 97]. Despite the admission of this evidence, the primary judge was unable to find that the father had committed the sexual assault, so the appeal court held that the father had suffered no prejudice [103].
Federal Circuit and Family Court of Australia (Division 2) Family Law
Campi and Ferrin [2022] FedCFamC2F 1621 (24 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
‘Application in a proceeding’ – ‘Best interests of the children’ – ‘Family law’ – ‘Family report’ – ‘Interim hearing’ – ‘Parental alienation’ – ‘Psychologist evidence’ – ‘Reportable intensive family therapy’ – ‘Significant risk of psychological harm’
Matter: Mother’s application in a proceeding, seeking orders for reportable intensive family therapy to be conducted by Dr B. to address alleged parental alienation of the mother by the father.
Facts: The children resided with the father and there was evidence the children’s relationship with the mother was fractured and the children had been resistant to contact with the mother since March 2022 when they last had supervised contact with the mother at a contact centre. It appeared the children had refused to participate in contact pursuant to a consent order made September 2022 that the younger child have unsupervised contact with the mother from after school until 7 pm each Friday afternoon which the older child could join if he desired. The court was unable to consider the mother’s allegation that the father had alienated the children from her in the interim hearing.
Newbrun J considered proposals for children to attend intensive family therapy in the context of mother’s allegations of parental alienation by father:
[9] The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult.
[38] As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model [Reportable Intensive Family Therapy], and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c) Family Law Act 1975 (Cth):
(a)
The Court’s concern that the children may be exposed to psychological harm if subjected to the proposed intensive four-day family therapy RIFT model;
(b)
The lack of material before the Court relating to risk screening of the children prior to participating in the proposed intensive family therapy;
(c)
The lack of material before the Court relating to the nature of the proposed intensive family therapy;
(d)
The lack of any independent evaluation of the proposed intensive family therapy;
(e)
The content of the Family Report does not suggest that expert evidence from a clinical psychologist such as Dr B and/or further family therapy is required to elucidate the issue of parental alienation;
(f)
The Family Report writer, appointed under section 62G of the Family Law Act 1975 (Cth) to provide a Family Report, is well able to provide appropriate evidence and opinions in relation to the issue of parental alienation (the Family Report writer, refers to and/or discusses the issue of parental alienation in paragraphs 76, 100, 102, 104, 108, 111, 112, 113 albeit she does indicate that the Court needs to conduct a further assessment of this issue). The Court is of the view that it is not necessary in this case for it to have a range of opinion on the issue of parental alienation;
(g)
The content of the Family Report does not refer to and/or support Dr B’s proposed intensive four day family therapy RIFT model.
Wylder v Wylder [2022] FedCFamC2F 1366 (9 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
‘Best interests of child’ – ‘Child abuse’ – ‘Coercive control’ – ‘Covert recording’ – ‘Manipulation’ – ‘No contact order’ – ‘Parenting’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Selective misrepresentation’ – ‘Social media’ – ‘Suicide threat’ – ‘Systems abuse’ – ‘Technology facilitated abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Victim as (alleged) perpetrator’ – ‘Weapons’
Case type: Appeal against parenting order.
Facts: The father was an Australian resident who met and married the mother in Country B. They moved to Australia where their daughter was born in 2017. The father made repeated notifications to the Department of Child Safety alleging that the mother used corporal punishment to discipline the child contrary to Australian standards [44], [68]. From videos posted on social media by the father, it was evident that the father did not listen to the child and coached her to make allegations of violence against the mother [56], [111]. The mother did not speak English well and she yielded to the father’s demands to agree to his unsupervised contact with the child in consent orders [26]-[30].
In previous proceedings the Court ordered the father be assessed for drug and alcohol use but he refused to participate [19]. In a search of the premises executing a recovery order for return of the child, police found weapons at the father’s house and charged him with offences under the Weapons Act [36]. In 2015, the father was self-medicating with anti-anxiety drugs when he admitted himself as an inpatient in a mental health unit. He said he had daily intrusive thoughts about killing the mother [124]. He discussed with other inpatients a plan to stalk his treating psychiatrist with intent to harm him and his family [129]. The father’s mother (ie the child’s paternal grandmother) applied for a domestic violence order against the father in 2019 [143]. The Court considered that there was ‘ample evidence’ that the father had engaged in family violence towards the mother [149].
Issue: The best interests of the child.
Held: The Court ordered that the mother have sole parental responsibility for the child, that the child live with the mother and that the mother be permitted to relocate with the child. The Court ordered that the father should have no time and no communication with the child.
The mother did not pose a risk to the child [116]. After an intervention by police and a social worker, the mother changed her approach and reduced her reliance on physical discipline [67]. The child was happy living with the mother [290].
The father was assessed by a forensic psychiatrist as being a high risk of suicide and murder-suicide, including kidnapping and absconding with the child, and an even higher risk to others generally [234]. He was also assessed as having a narcissistic personality and an anti-social personality disorder [219]. His postings on social media and abusive threats against his wife were in breach of a court order and he demonstrated contempt towards the Family Court and legal processes [305].
Although the father claimed to be the victim of physical violence from the mother, what concerned Judge Vasta was the father’s coercive control of the mother:
1.
However, it is not the spectre of physical violence that concerns this Court; rather, it is the spectre of coercive control. Whilst it had been documented that the parents had separated on occasions, the mother said that the father spoke to her in such a way that she felt compelled to return to the relationship. The father denies any such conduct.
2.
What has been of concern is the documented history of the litigation. It is incongruous that the mother would make the complaints that she made during the previous filing in this Court (BRC 11666/2019); have a Court make an order that mandated supervised visits between the father and the child; and, then choose to ignore that and, instead, come to a compromise solution with the father that gave him unsupervised equal time with the child.
3.
There seems to be no other rational explanation for this other than the father implementing coercive control over the mother to the extent that she felt that she had no other choice but to comply with the father’s demands. The judicious use of covertly recorded conversations with one parent by the other parent and then referring to selective excerpts is a feature that is often found in cases of coercive control.
4.
In this case, the father did give to the Court such selective recordings. The father pointed to one particular recording where the mother made an “admission” that the father was the favoured parent by the child. In another recording, the mother “admitted” that the father treated her like a queen. In another recording, the mother is said to convey that she arranged custody arrangements for her financial benefit. In a further recording, the mother has “conceded” that she was “not going back to court again”. And in a final recording, the mother “admitted” that the father would never hurt his daughter.
5.
These recordings were used by the father to intimidate the mother into not pursuing any parenting matter because these recordings would be used against her, as if they were repudiations of her stance. Of course, they have little evidentiary value as they are excerpts from a larger conversation upon which the Court has no information, and therefore, no context.
6.
The behaviour in making constant notifications to the Department of Child Safety can also be seen as a manifestation of the coercive control. Further, posting the videos to social media can also be seen as a manifestation of coercive control. One such video records a “Tik Tok” dance that the mother had uploaded to social media. The father recorded himself watching the video where the father made derogatory comments suggesting that the manner of solo dancing in the video was not befitting that of a woman who had a boyfriend, let alone a woman who was a mother.
7.
….
8.
The father will attempt to draw the child into his world; a world where the mother is evil and cannot be trusted and a world where institutions such as the police and the Courts are malevolent and must be resisted. This was perfectly illustrated by the manner in which the father dealt with the child when making the videos. He ignored what the child was saying and imposed his own version of the facts and would not brook any variation to that. The child will never be truly free under the care of the father and she will not have the opportunity to grow and experience life because she will be made to conform to his world view.
9.
And this is just part of the danger that the father represents. The evidence that the father planned to do harm to his treating psychiatrist because that psychiatrist would not support his application for a pension is concerning enough. But when this is added to the father’s manipulation of the mother to avoid having to endure supervised visits with the child, the reaction of the father to police attempting to serve him with the police protection order, the obsessive determination with which he wished to expose a “rapist” at the school, his Facebook comments to a Member of Parliament as to his capacity for violence and the nonchalance with which he violated a Court order and injunction about posting on social media, the jeopardy at which he places X cannot be overstated.
10.
There are absolutely no safeguards that the Court could put in place that would allow the father to have any form of contact with X and yet keep the child safe.
11.
It is never an easy task for a Court to make orders that prohibit contact between a parent and child, however there are those rare cases where such an order is the only order that can be made in the best interests of the child. This is one of those cases.
Ramzi & Moussa [2022] FedCFamC2F 1473 (4 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
‘Application that child spend no time with a parent’ – ‘Arranged marriage’ – ‘Children’ – ‘Coercive control’ – ‘Cultural and spiritual abuse’ – ‘Culturally and linguistically diverse backgrounds’ – ‘Deprivation of liberty’ – ‘Economic and financial abuse’ – ‘Exposing children to domestic violence’ – ‘Fear’ – ‘Following, harassing and monitoring’ – ‘Forced marriage’ – ‘Harassing’ – ‘Humiliation’ – ‘Impact on mother's parenting capacity’ – ‘Injunctive orders’ – ‘Isolation’ – ‘Mitigation of risk’ – ‘Monitoring’ – ‘No time ordered’ – ‘Parenting arrangements’ – ‘Physical violence’ – ‘Poor literacy skills’ – ‘Protection orders’ – ‘Sexual abuse’ – ‘Social abuse’ – ‘Sole parental responsibility’ – ‘Threats’ – ‘Unacceptable risk’
Proceedings: The proceedings were for the determination of parenting arrangements for a five-year old child (X) of the two parties.
Issue: The parties agreed that the child should live with the mother. However, at issue was:
1.
Whether the mother should be ordered to return to Melbourne with the child;
2.
How parental responsibility for the child should be exercised;
3.
Whether the father poses a risk of harm to the child;
4.
If the child is to spend time with the father in Melbourne, how much time should be allowed and should it be supervised
The alleged risks posed by the father were that:
1.
X had been exposed to and would be exposed to family violence;
2.
He had engaged in coercive and controlling behaviour;
3.
Orders allowing contact may pose a risk to the mother’s caring capacity.
Facts: The mother left her home country at a young age for another foreign country for an arranged marriage with the father and the couple later moved to Australia. The mother had only a basic level of education and spoke very limited English.
The parties separated after living together in Melbourne for two years. The mother applied for a protection order and the child (X) lived with her. Pursuant to an interim parenting order, X spent a few hours of supervised contact with his father each week. Subsequently, unsupervised contact was ordered with changeover at a supervised contact centre. The mother was late to changeover on several occasions and eventually stopped bringing X altogether before moving with the child to Sydney.
The mother made extensive allegations of family violence against the father which occurred over the course of their marriage and afterwards. These included coercive and controlling behaviour, physical abuse such as choking and beatings, sexual assault, threats and humiliation (both from the father and family/community members), monitoring her movements, denying her economic autonomy and depriving her of liberty.
The alleged risks posed by the father were that:
1.
X had been exposed to and would be exposed to family violence;
2.
He had engaged in coercive and controlling behaviour;
3.
Orders allowing contact may pose a risk to the mother’s caring capacity.
Reasoning: Beckhouse J accepted the mother’s account, finding that:
•
family violence was established (Family Law Act 1974 (Cth) s4AB(1)); and
•
the risk of X being subject or exposed to violence outweighed the benefit of having a meaningful relationship with his father (s60CC).
Beckhouse J stated that it was not necessary to make factual findings about the occurrence of each alleged individual incident ([202], s4AB(1)). The lack of eye-witnesses, inconsistencies and delayed reporting were not an impediment, particularly given the cultural barriers to disclosure. The mother’s evidence was detailed and specific, corroborated by external agencies and was understood in the context of the cyclical nature of family violence and her cultural and personal background. The father’s ‘blanket denials’ offered no plausible explanation or alternatives.
Beckhouse J found that this risk could not be ameliorated. The father had displayed a lack of responsibility for his conduct and demonstrated no desire to change. His extensive familial and community support network was viewed as a ‘double-edged sword,’ as the paternal family potentially helped conceal his conduct and he failed to understand how ongoing communication with the maternal family impacted the mother.
It was determined that contact orders would cause the mother stress and anxiety, to the detriment of her parenting ability. Given this and the risk that X would be leveraged as a weapon, both supervised time and video communication were deemed unviable.
Orders: The child reside with the mother and she have sole parental responsibility. The child have no contact or communication with the father, the child be removed from the international travel watchlist and the mother be permitted to obtain a passport for the child and travel overseas without the father’s consent.
Additionally, the father was permitted to send X a birthday message every year.
Backhouse J noted at [243] that in establishing whether a person is ‘fearful’ under s4AB(1): “fear can arise from a culmination of events and patterns of behaviour”.
Backhouse J observed at [202]:
…There are some specific individual characteristics in this matter that lead me to place less weight on inconsistent versions of events given by the mother. English was not the mother’s first language. She was poorly educated. She spoke through an interpreter. I cannot be satisfied she would have understood how domestic and family violence is defined in Australia.
Federal Magistrates' Court of Australia
Heilig & Cabiness [2011] FMCAfam 97 (2 March 2011) – Federal Magistrates’ Court of Australia
‘Children’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Family law’ – ‘History of domestic and family violence’ – ‘Parental responsibility’ – ‘People affected by drug misuse’ – ‘People with mental illness’ – ‘Separation’
Issue: Contact.
Facts: Orders for the children to reside with the mother and have alternate weekend contact with the father had been made following trial in 2003. The father has multiple criminal convictions for violent family violence offending against numerous former partners which predated the first trial for which he was convicted after the 2003 trial. The father commenced the current proceedings by filing a contravention application, which related to his lack of contact in accordance with the 2003 orders for a seven-year period (a portion of which time he was in custody serving a term of imprisonment for violent offending against the mother and two other former partners). Interim orders suspended all previous contact orders. The father sought orders for contact and to receive updates on the children’s educational progress.
The father had a long history of illicit drug consumption, controlling abusive behaviours to domestic partners, had mental health issues and conceded that, at the time of the hearing, had no meaningful relationship with the children. It was also conceded that the children were present in the same building in which quite serious family violence occurred up until 2004, though it was not conceded that the family violence was necessarily perpetrated against the mother.
Decision and Reasoning: It was ordered that the mother have sole parental responsibility for the children, the children reside with the mother and have no contact with the father.
At [30], the Court favourably refers to research quoted in the decision of the Court of Criminal Appeal on the Crown manifest inadequacy appeal in relation to the father’s sentencing, cited as R v Hamid [2006] NSWCCA 302 (20 September 2006) at [77]:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7.
It was concluded, on the basis of the father’s criminal history, the children’s fear of and lack of relationship with their father that no order for contact or communication should be made. The children were found to be at risk of psychological or physical harm if their relationship with the father was to resume.
Administrative Appeals Tribunal of Australia
1807390 (Refugee) [2022] AATA 4216 (5 October 2022) – Administrative Appeals Tribunal of Australia
‘Ability to leave abusive relationship’ – ‘Child abuse’ – ‘Coercive control’ – ‘Cultural and spiritual abuse’ – ‘Emotional abuse’ – ‘Exposing children to domestic and family violence’ – ‘Forced marriage’ – ‘Humiliation’ – ‘Isolation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with children’ – ‘People with mental illness’ – ‘Physical violence’ – ‘Post traumatic stress disorder’ – ‘Sexual abuse’ – ‘Strangulation’
Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1.
Proceedings: Application for review of decision to refuse protection visa under s 65 of the Migration Act 1958 (Cth).
Facts: The female applicant and her husband were in an arranged marriage in Sri Lanka. Over the course of the marriage her husband was physically violent – including striking and choking her,– he humiliated her, verbally abused her with sexual language, tormented her about her religion and forced her to do sexual acts. He prevented her from contacting her family over a17 year period. The husband was emotionally and psychologically abusive towards their daughter and on one occasion threw their 8-year-old son against the wall when the applicant disobeyed him. Given her husband’s respected status as a doctor and the lack of responsiveness of the Sri Lankan police to domestic violence reports, the applicant never reported the conduct.
She fled to Australia in 2012 on the pretence of visiting her son and daughter who had moved here to study, ceased contact with her husband and subsequently applied for a Protection Visa.
Issue: Did the applicant have a well-founded fear of persecution from her husband upon returning to Sri Lanka such that she was a person to whom Australia has protection obligations as a refugee pursuant to s36(2)(a) Migration Act 1958 (Cth).
Decision and reasoning: The tribunal accepted the applicant’s evidence that she was subjected to domestic and family violence from her husband in Sri Lanka and she had a well-founded fear of persecution. The tribunal acknowledged that some confusion and possible exaggeration from the applicant in giving evidence “may be attributable to the impact of past trauma and her psychological disorder, as referenced by her treating psychiatrists”, citing the National Domestic and Family Violence Bench Book on trauma-informed judicial practice[28]. The tribunal accepted that the experience of domestic violence victimisation may negatively impact memory and recount in court. The Tribunal accepted that the applicant and her daughter’s evidence described constant controlling and threatening behaviour by the applicant’s husband, referring to the description of coercive control in the National Domestic and Family Violence Bench Book.
The Tribunal found that while the applicant had not had contact with her husband for ten years, his past behaviour, her defiance of him and his proximity to the applicant’s family home in Sri Lanka posed a real risk that he would try to harm her [36]. The intentional and selective nature of the harm involved systematic and discriminatory conduct [37], s5J(4)(c) and was characterised as gender-based violence, meaning that her fear of persecution related to membership of the social group of women in Sri Lanka [38], s5J(1)(a). DFAT country information evidenced the unchecked occurrence of such violence in Sri Lanka and lack of effective protection available [40]-[42]. Cultural factors also substantiated the applicant’s claim that internal relocation would not mitigate the risk of harm, as the presence of a single woman would attract attention and likely enable her to be found [43].
X (a pseudonym) (Migration) [2022] AATA 1149 (21 March 2022) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Cancellation of visa’ – ‘Deportation’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘Immigration’ – ‘People affected by drug and alcohol misuse’ – ‘People with mental illness’ – ‘Risk to domestic partners’ – ‘Risk to health, safety and good order of community’ – ‘S.116 of the migration act 1958 (the act)’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to cancel Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
Facts: The applicant, Mr X, came to Australia at the age of 7 and was 47 years old at the date of decision. He had an extensive criminal history commencing in 1996 including multiple series of domestic violence offending, the first commencing December 2001, the second commencing November 2007 and the third in 2009. There was also a series of domestic violence offences in 2016 and 2018. Mr X’s explanations did not fully correlate to the convictions and tended to minimize his offending. His former partner’s children were removed from her care following the offending and returned to her care after Mr X’s visa was revoked and he was taken into immigration detention. He has a history of breaches of community corrections orders, bipolar disorder and drug and alcohol misuse (addressed while in prison). He is the father of 4 children, 3 of whom are adults, the youngest 17 years old, and has contact with and good relationships with 3 of his children. He has no family or support in New Zealand. The delegate relied on his ongoing risk of offending to women with whom he may be in a domestic relationship pursuant to s116(1)(e) of the Act.
Issues:
1.
Whether the ground for cancellation in s116(1)(e) of the Act - Mr X is or may be, or would or might be, a risk to:
◦
the health, safety or good order of the Australian community or a segment of the Australian community; or
◦
the health or safety of an individual or individuals;
is made out, and if so,
1.
whether the visa should be cancelled.
Decision and Reasoning: Decision to cancel the applicant’s Subclass 444 (Special Category) visa affirmed.
The Tribunal held that Mr X may be a risk to individuals in the community and in particular previous and future domestic partners and a risk to children in the household (shown by the removal of his former partner’s children). The factors which favour Mr X remaining in Australia do not outweigh the risk he poses to a segment of the community.
The Tribunal considered the distress and hardship Mr X would experience if returned to New Zealand, the likely impact on his children and mental health, his strong ties to the Australian community, his continued minimization of his offending, longstanding issues of aggression towards domestic partners and repeated non-compliance with court orders. The Tribunal also considered the fact that if the decision to cancel his visa is affirmed, he will be removed from Australia and be unlikely to be able to return. Consideration was also given to the fact that since his visa was cancelled he was sentenced to a further period of imprisonment, meaning he has a substantial criminal record as defined in s 501(7) of the Act; thus, if the visa cancellation is revoked his visa is likely be cancelled again.
A (a pseudonym) and Child Support Registrar (Child support) [2021] AATA 5499 (7 September 2021) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Child support’ – ‘Child support agency’ – ‘Children’ – ‘Counselling records’ – ‘Domestic and family violence’ – ‘History of domestic and family violence’ – ‘Non-compliance with parenting orders’ – ‘Percentage of care’ – ‘Risk to children’ – ‘Section 51, child support (assessment) act 1989’ – ‘Separation’ – ‘Special circumstances’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: The mother’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of a decision to dismiss her objection to the determination of Services Australia – Child Support (the Agency) that the care percentages of 80% to the mother and 20% to the father of the two younger children should be reflected in the child support assessment for an interim period.
Facts: The mother and father are parents of three children in respect of whom there has been a child support assessment in place since 8 January 2020, which reflected that the mother had 100% care of all three children In March 2021 the father advised the Agency that since September 2020 there had been court orders in place granting him 14 per cent care of the children and that the mother had withheld care since November 2020. On 7 December 2020 the father filed an application for interim orders seeking 100% care of the children and to enforce the existing orders and commenced contravention proceedings on 11 February 2021. The Agency made an interim care decision that from the November 2020 to September 2021 the care record must reflect that the father had a care percentage of 20% care on the basis the mother withheld care and the father was taking reasonable action to have the court-ordered care arrangement complied with. The mother’s evidence was that the children ran away from the father when he attended their school to collect them, that they are fearful of him due to his history of violence towards the mother during the relationship, and that they have not had contact with the father for three years. The mother consented to disclosure of confidential notes from counselling sessions with her psychotherapist (including some sessions with the children in which they expressed their fear of the father) spanning a 10 year period from the time of separation.
Issues:
1.
Whether the father (for the purpose of section 51, Child Support (Assessment) Act 1989 (the Act) was taking reasonable action to ensure the court orders were complied with; and
2.
whether there were special circumstances such that an interim care determination should not be made.
Decision and Reasoning: The decision under review was set aside, and in substitution the tribunal decided that from 7 November 2020 the mother has had 100 per cent care of the children for the purpose of s51 of the Act.
The tribunal was satisfied that the father took reasonable action to ensure the court-ordered care arrangements were complied with for the purposes of section 51 of the Act. In respect of the father, as required by subsections 51(2), (3) and (4) of the Act, the first care percentage is 14% while the second percentage is 0%.
In the special circumstances of this case as they relate to the children of the assessment, the father should not have the benefit of an interim period. On balance, the tribunal was satisfied that the father’s own behaviour had significantly contributed to the care arrangements not being complied with. The tribunal placed significant weight on contemporaneous counselling records which reflected that the children had disclosed that they were exposed to family violence perpetrated by the father and were subsequently fearful of the father.
B and C (pseudonyms) (Child support) [2021] AATA 5500 (3 September 2021) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Child support’ – ‘Domestic and family violence’ – ‘Non-compliance with parenting orders’ – ‘Percentage of care’ – ‘Protection order’ – ‘Risk to child’ – ‘Section 51, child support (assessment) act 1989’ – ‘Suicide threat by child’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: The father’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of the decision to dismiss his objection to the determination of Services Australia – Child Support (the Agency) pursuant to s51 Child Support (Assessment) Act 1989 that the mother’s actual 100 per cent care of the child should be reflected in the child support assessment and no interim care determination should be made.
Facts: The mother and father are parents of one child (aged 12) in respect of whom there has been a child support assessment in place since 30 September 2009. Parenting orders dated June 2020 provide that the child will spend 5 nights per fortnight and half of each school holidays in the care of the father. The pre-existing care determination was 33% care to the father and 67% care to the mother, which accorded with the care provided for in the parenting orders. On 18 December 2020 the mother advised the Agency that the child was in her 100% care due to a medical crisis, namely that the child had threatened suicide if returned to the father’s care. The child’s psychiatrist directed the child should reside with the mother and not be required to reside with the father. Medical records confirming this advice were adduced at the hearing. The father disagreed with the care change due to the court orders. The father did not respond to a disputed care contact letter issued by the Agency and on 16 February 2021 a delegate of the Agency decided that care of the child was 100% to the mother and 0% to the father from 2 November 2020. The father provided the court orders and reason for decision which make mention of the child’s mental health and the mother provided a provisional protection order made on 8 March 2021 for the protection of the child (which was later withdrawn). On 24 March 2021 an objections officer disallowed the father’s objection and the father sought review by the tribunal.
Issues:
1.
What were the care arrangements in relation to the care of the child in the relevant care period and should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?
2.
Should an interim care determination be made in relation to the care of the child, or were there were special circumstances such that an interim determination should not be made?
Decision and Reasoning: Decision affirmed.
From 20 November 2020 the child’s actual care was 100% to the mother and 0% to the father. The tribunal acknowledged that there was a court-ordered care arrangement in place that was not being adhered to, and that the father contended that he was taking reasonable action to have his court-ordered care restored. However, the tribunal found that special circumstances existed on the basis of the psychiatrist’s advice that the child remain wholly in the mother’s care due to his medical crisis, and that it was therefore appropriate to determine the respective care percentages based on actual care, rather than making an interim care determination by reference to the parenting orders.
Simpson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 78 (1 February 2021) – Administrative Appeals Tribunal of Australia
‘Another reason to revoke mandatory cancellation decision’ – ‘Application for review of decision not to revoke cancellation of visa’ – ‘Character test’ – ‘Criminal history’ – ‘People affected by substance misuse’ – ‘Uncharged acts’
Proceedings: Application for review of decision not to revoke cancellation of visa.
Facts: A delegate of the Minister (the respondent) mandatorily cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. The applicant made written representations to the respondent requesting revocation of the cancellation of the visa. The respondent declined to revoke the cancellation.
Issues: Under s 501CA(4) of the Act, the original decision may be revoked if –
1.
The applicant passed the character test (subsection (b)(i)).
2.
There is another reason why the decision to cancel the applicant’s visa should be revoked (subsection (b)(ii)).
Decision and reasoning: Application for review of decision not to revoke cancellation of the applicant’s visa was dismissed.
Issues 1: The applicant had a “substantial criminal record”. He did not pass the character test defined in s 501(6) of the Act and could not rely on s 501CA(4)(b)(i) as a reason for the mandatory cancellation of the visa to be revoked.
Issue 2: The Tribunal was required to consider “Primary Considerations” under Direction 79 (as well as “Other Considerations”).
On Primary Consideration A “Protection of the Australian community from criminal or other serious conduct”, the Tribunal member noted that under the Direction she was “not limited to considering proven offences” but “required to consider the nature and seriousness of the applicant’s ‘conduct to date’.” This included an incident where the applicant damaged his ex-partner’s new partner’s car, grabbed his ex-partner, and threatened her and her new partner with violence. This was “very serious conduct” (at [52]). The applicant had also committed 34 criminal offences and had a lengthy traffic history. There was a moderate risk he would commit further offences. Primary Consideration A weighed heavily against revocation of the cancellation of the Applicant’s visa ([49]-[84]).
D (a pseudonym) (Migration) [2020] AATA 3488 (30 June 2020) – Administrative Appeals Tribunal of Australia
‘Administrative law’ – ‘Application for review’ – ‘Domestic and family violence’ – ‘Evidence of de facto relationship’ – ‘Evidence of family violence’ – ‘Immigration’ – ‘No family violence’ – ‘Partner visa’ – ‘S.65 of the migration act 1958’
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia
Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
Facts: The applicant, Ms. D claimed that her relationship with Mr P, the visa sponsor, had ceased and she had been the victim of family violence. She applied for Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act). A delegate of the Minister refused to grant a visa to the applicant on the basis that she did not meet cl.820.211(2)(a) of the Migration Regulations (1994) because the evidence failed to demonstrate that the applicant was the de facto partner of the sponsor, as defined under section 5CB of the Act.
Issues: To grant a Partner (Temporary) visa (Class UK) visa, the Tribunal must be satisfied:
1.
The evidence is sufficient to demonstrate the applicant and the sponsor had been in a de facto relationship and that the relationship has ceased to exist.
2.
The evidence is sufficient to demonstrate family violence.
Decision and Reasoning: The Tribunal found that there was a de facto relationship and it had ceased but found there was no family violence, so affirming the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
After considering the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other, the Tribunal member was satisfied that the applicant and sponsor had been in a de facto relationship, and the relationship had ceased [14].
Relying on statutory declarations provided by a social worker and a psychologist and a mental health plan written by a medical practitioner, the applicant made a non-judicially determined (see r1.24 and 1.25 Migration Regulations (1994)) claim of family violence.
After considering the evidence, the Tribunal member was not satisfied that the applicant had suffered relevant family violence. The Tribunal member found no evidence of physical violence and was not convinced that the psychological trauma experienced by the applicant met the test required by the legislation to sustain a claim of family violence [28]. The Tribunal sought the opinion of an independent expert.
The Independent expert report (the report) found that “the sponsor’s conduct did not cause [Ms. D] to reasonably fear for, or to be reasonably apprehensive about, her well-being or safety. … [Ms. D] said that she has maintained a friendship with the sponsor despite him reportedly continuing to verbally abuse her.”[33] The report found the applicant had not experienced family violence outlined in r1.21 Migration Regulations (1994).
The applicant challenged the report. The Tribunal member was concerned as to whether the applicant had been afforded procedural fairness [42] and a second hearing took place.
The Tribunal member considered the written responses of the applicant and her agent to the report, the responses of the independent expert to the matters raised by the applicant and her agent and discussed these issues with the applicant and her agent at the second hearing [62]. The Tribunal member found that the applicant had not suffered family violence committed by the sponsor.
Hamilton and Secretary, Department of Social Services (Social services second review) [2020] AATA 1918 (26 June 2020) – Administrative Appeals Tribunal of Australia
‘Covid-19 pandemic’ – ‘Domestic violence’ – ‘Financial abuse’ – ‘New start allowance’ – ‘Special circumstances’ – ‘Workers compensation’
Case type: Review
Facts: The female applicant sought review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division, which affirmed the decision of the Department of Human Services rejecting her new start allowance claim because she had a compensation lump sum preclusion period from 2 March 2010 to 21 April 2025. The applicant had received a workers compensation lump sum payment for injuries suffered in a motor vehicle accident. Her evidence was that she suffered severe financial hardship as her abusive male ex-partner had accessed and gambled her savings. She terminated the relationship and had to sell her home due to her financial difficulties, retaining about $400,000. The relationship resumed and he used her ATM card to take money from her bank account threatening to beat her if she did not provide access to her funds. The applicant finally terminated the relationship and said he had taken all the money which she had following the sale of her house which represented all that remained of the settlement sum she had received ([67]). The applicant was unable to obtain continuous employment and was experiencing severe financial hardship ([79]).
Issue: Whether special circumstances exist.
Held: The Tribunal set aside the decision and held that the applicant’s circumstances were "special" pursuant to s 1184K, such that much of her compensation payment should be treated as not having been made so as to reduce the preclusion period applicable to her compensation payment so that it ended on 21 May 2020 ([82]). The special circumstances in accordance with s 1184K(1) related to the totality of the applicant’s circumstances, including her financial hardship, her injuries, her financial deprivation following domestic violence and financial abuse ([79]).
The hearing was conducted via telephone in accordance with the provisions of the Tribunal’s COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions ([29]).
Australian Information Commissioner
‘WZ’ and CEO of Services Australia (Privacy) [2021] AICmr 12 (13 April 2021) – Australian Information Commissioner
‘Audit of policies, procedures and systems’ – ‘Complainant had notified of separation from partner’ – ‘Following, harassing and monitoring’ – ‘Privacy’ – ‘Protection orders’ – ‘Residential address disclosed to the complainant's former partner’
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The female complainant was receiving Centrelink payments administered by Services Australia (the respondent) while living with her former male partner. She obtained an Apprehended Violence Order (which her partner was imprisoned for breaching). The complainant notified the respondent of her separation from the partner, but the respondent considered the separation unverified. Their online records continued to be linked meaning that if the complainant updated her address online, her partner’s address would also be updated. Her former partner posted a screenshot of the complainant’s new address to social media and made threats against her and her current partner.
Issues: Whether Services Australia interfered with the complainant’s privacy as defined in the Privacy Act 1988 (Cth).
Decision and reasoning: The Commissioner found that the respondent interfered with the complainant’s privacy by:
1.
Disclosing the complainant’s personal information, namely, her new address to her former partner, for a purpose other than that for which it was collected, in breach of Australian Privacy Principle (APP) 6.
2.
Failing to take reasonable steps to ensure that it used accurate and up-to-date personal information of the complainant in the form of her relationship status having regard to the purposes of its use, being to update her former partner’s address, in breach of APP 10.2.
3.
Failing to take reasonable steps to ensure that it used accurate and up-to-date personal information of the complainant in the form of her address at which she could be contacted in breach of APP 10.2.
4.
Failing to take reasonable steps to protect the complainant’s personal information, being her updated address, from unauthorised disclosure to her former partner in breach of APP 11.1.
In addition to ordering compensation for non-economic loss (including re-activation of psychological symptoms and distress) and expenditure incurred in association with the privacy complaint, and ordering an apology, the Agency was required to undertake an audit of policies, procedures, and systems to ensure the privacy breach was not repeated or continued. The Commissioner noted at [156]-[160]:
The effect of this privacy breach on the complainant has been significant. This is in large part due to the fact that she feared harm from the former partner… While the changes the respondent has made are encouraging, I remain concerned that individuals are at risk of their personal information being disclosed to former partners.
[…]
It is appropriate for the respondent to put in place more robust measures where the consequences for individuals are more significant. It is therefore appropriate to have special measures in place to protect individuals identified as being at risk of domestic violence. However, I remain concerned about the risks to individuals seeking to update their own address and not that of their former partner, where the respondent is not satisfied that the individual has in fact separated from their partner, regardless of whether they have a history of family or domestic violence. The ‘reasonable steps test’ is one that takes into account all relevant circumstances, including what is practical and what is required where the adverse consequences to particular individuals are significant.
I therefore see no reason to limit the audit to a particular cohort of individuals, including those at risk of family domestic violence. It is appropriate in order to address the grievance to target the situation where an individual makes unverified claims to have separated from, or to be no longer living with, their partner, and seeks to update their address, whether online or in person.”
‘ST’ and Chief Executive Officer of Services Australia (Privacy) [2020] AICmr 30 (30 June 2020) – Australian Information Commissioner
‘Damages for non-economic loss’ – ‘Disclosure for tribunal proceedings’ – ‘Following, harassing and monitoring’ – ‘Information privacy principles’ – ‘Privacy’
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The female complainant’s complaint concerned the disclosure of her personal information, collected by the former Child Support Agency for a Tribunal hearing, to the complainant’s ex-partner. She claimed that the personal information revealed the places she visited which she had attempted to keep hidden from the ex-partner as she feared harm.
Issues: Whether Services Australia interfered with the complainant’s privacy as defined in the Privacy Act.
Decision and reasoning: Services Australia interfered with the complainant’s privacy, breaching the Information Privacy Principles (IPP), by disclosing the complainant’s personal information in breach of IPP 11. The locational information disclosed was not relevant to the decision under review by the Tribunal and the complainant was therefore not likely aware that information of its kind would be disclosed.
In terms of damages, the Commission accepted that the complainant had already disclosed some of the places she had frequented through other processes. The Commissioner noted at [75]-[76]:
“I do not consider that the previously disclosed information negates the complainant’s claim to have feared the ex-partner locating her. The complainant clearly went to some lengths to redact certain information from the documents she provided in the primary decision process and I accept her claim that she thought carefully about what information to disclose.”
“However, I am of the view that in all the circumstances, the degree by which the disclosure contributed to the complainant’s fear of being located by the ex-partner was not significant. I place weight on the fact that the complainant had disclosed some locations to the ex-partner during the COA process and that she continued to maintain a PO Box at the same post office as the ex-partner. I also note the absence of any evidence showing that the complainant sought the assistance of police. While I accept the complainant’s claims to have feared being located by the ex-partner, these claims are not so specific and detailed (nor are they supported by specific and detailed corroborating evidence) as to cause me to form the view that the disclosure exacerbated her fear of being located to a significant extent.”
The Commissioner was satisfied that the privacy breach had caused the complainant distress, but no other claimed damage. She was awarded $3,000 for non-economic loss.
‘PJ’ and Australian Federal Police (Freedom of Information) [2018] AICmr 64 (10 September 2018) – Australian Information Commissioner
‘Confidentiality’ – ‘Freedom of information’ – ‘Public interest’ – ‘Systems abuse’ – ‘Whether disclosure of personal information unreasonable’
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant applied to the Australian Federal Police (AFP) for access to “any notes made on myself by the Australian Federal Police. Not criminal records, but any and all police files/notes made on me.” The AFP exempted access to 13 folios in part under s 47F (the personal privacy exemption) of the Freedom of Information Act 1982 (Cth). Some exempt material included names, dates of birth and contact details of third party individuals, and information pertaining to an alleged domestic violence incident.
Issues: Whether the material the AFP found to be exempt under s 47F was conditionally exempt. If so, whether giving the applicant access to conditionally exempt documents would, on balance, be contrary to the public interest (s 11A(5)).
Decision and reasoning: Access to personal information of third party individuals and about an alleged domestic violence incident involving the applicant was refused.
Taking into account the nature of the information, that the information was provided for a limited purpose and was not well-known or available from other public sources, the Commissioner accepted the AFP’s submission that disclosure could undermine a range of processes intended to protect individuals and could discourage those who may be affected by domestic violence from coming forward to police. The Commissioner was satisfied disclosure would be unreasonable and the relevant material was conditionally exempt under s 47F. It was also contrary to the public interest to give the applicant access to the conditionally exempt documents at this time.
‘DK’ and Telstra Corporation Limited [2014] AICmr 118 (30 October 2014) – Australian Information Commissioner
‘Family law judge’ – ‘Following, harassing and monitoring’ – ‘Non-economic loss’ – ‘Privacy’
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The complainant worked as a judge in the family law jurisdiction. He requested that Telstra connect a phone line to his home for the sole purpose of an alarm system installed by the Court. Telstra set up the phone line and published the complainant’s name, address and the phone number in both the White Pages online and in the hard copy directory.
Issues: Whether Telstra had breached the complainant’s privacy.
Decision and reasoning: Telstra interfered with the complainant's privacy by failing to take reasonable steps to provide notice to the complainant that it would use and disclose his personal information for the purpose of publishing it in the White Pages, in breach of National Privacy Principle (NPP) 1.3. Telstra was ordered to apologise, review its processes and review its Privacy Statement.
Telstra was also ordered to pay the complainant $18,000 for non-economic loss. In reaching this amount, the Commissioner noted the following evidence from the complainant:
“Since the publication of my details a litigant from a matter decided by me has begun to loiter at and about our home. As my details and those of my partner are suppressed on every public register I infer his knowledge of our address is the White Pages site…
“We have just moved to our home and our enjoyment of it has been rudely interrupted…We both jump whenever the street bell rings. I have applied to be transferred interstate. On moving we will incur moving costs, expenses re sale of our home and costs of resettling… We will both have expenses travelling to visit family and friends as our lives, to date, have been in [omitted]…
“The invasion of and prejudice to my privacy and personal safety can be readily envisioned as arising for others such as victims of crime, women fleeing domestic violence and the like.”
In awarding compensation, the commissioner was guided by severity of the impact of the privacy breach on the complainant (with concerns for his/his partner’s safely leading him to move interstate); the added security threat he/his partner were exposed to; the responsibility of Telstra as an organisation to have appropriate measures in place; and the extent of the publication to a very wide audience in both online and hard copy form.
‘AG’ and Department of Immigration and Citizenship [2013] AICmr 55 (26 April 2013) – Australian Information Commissioner
‘Freedom of information’ – ‘Material obtained in confidence’ – ‘Personal privacy exemption’ – ‘Request for access to documents’ – ‘Visa application’
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant applied to the Department to access specific documents related to his ex-wife. The Department refused access to 11 documents saying disclosure would reveal information provided in confidence and personal information about third parties, of which disclosure would be unreasonable and contrary to public interest.
Issues: Whether the documents were exempt under ss 45 (material obtained in confidence) and 47F (personal privacy exemption) of the FOI Act.
Decision and reasoning: Access refused.
Documents exempt under s 45 included statutory declarations made by the applicant’s ex-wife and other third parties in relation to her application for permanent residency in Australia, as well as a record of interview with the ex-wife and letter sent by a third party. The commissioner was satisfied that disclosure of the documents sought would cause detriment to the applicant’s ex-wife. The Commissioner was satisfied that disclosure of the documents sought would be a breach of confidence and the documents were exempt under s 45.
Documents exempt under s 47F were general correspondence in relation to the applicant’s ex-wife visa applications. The documents contained personal information of the applicant’s ex-wife, the applicant and or third parties, which was of a sensitive and personal nature (including names/other information). Disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, and an agency’s ability to obtain confidential information and to obtain similar information in the future. Giving the applicant access to the documents was contrary to the public interest.
In reaching the decision, Acting Information Commissioner Pirani stated:
“[20] The Department has created Form 1040 for the purposes of a visa applicant providing documentation in relation to family violence matters. This was the form used by the applicant’s ex-wife in support of the visa application. Form 1040 states that the information provided in the form ‘is given and received on the understanding that it will be treated in confidence’.”
‘AF’ and Department of Immigration and Citizenship [2013] AICmr 54 (26 April 2013) – Australian Information Commissioner
‘Freedom of information’ – ‘Material obtained in confidence’ – ‘Request for access to documents’ – ‘Visa application’
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant’s relationship with his former partner ended and she applied for a Subclass 100 visa on domestic violence grounds. The applicant applied to the Department for access to all material in any form relating to his former partner. The Department applied the material obtained in confidence exemption (s 45) and the personal privacy exemption (s 47F) to statutory declarations made by the applicant’s former partner and a competent person in relation to a visa application made by the applicant’s partner under the family violence provisions of the Migration Regulations.
Issues: Whether the documents were, inter-alia, exempt under s 45 (material obtained in confidence).
Decision and reasoning: Access refused. In particular, the Commission was satisfied that the statutory declarations were communicated and received on the basis of a mutual understanding of confidence between the applicant’s former partner and the Department and the competent person. Disclosure “would result in detriment to the authors of the statutory declarations as it would reveal private matters relating to the allegations of family violence. The disclosure of this information may cause a level of embarrassment and discomfort to the authors of the statutory declarations”. The Commissioner was satisfied that unauthorised disclosure of the information contained in the documents would cause detriment to the applicant’s former partner and the competent person.