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 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]).