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.