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 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].