“Family violence of a serious and extensive nature”

“Family violence of a serious and extensive nature”

Churchill & Wileman (No.2) [2016] FCCA 107 (9 January 2016)

FAMILY LAW – Parenting – whether an order should be made for a father to spend time with a child aged 4 – where the child has spent virtually no time with the father since he was 8 months old – mother seeking an order for no time and no communication – father seeking an order for some limited Skype communication and for some limited supervised time once he undergoes twelve months of therapy in relation to family violence, anger management and alcohol abuse.

FAMILY LAW – Where the mother alleges that during the parties’ short relationship the father perpetrated serious, chronic and on occasion terrifying family violence – where the father has been convicted of some offences committed against the mother and has made some limited admissions about perpetrating violence but denies most of the mother’s allegations, minimises what occurred on the occasions which led to his convictions and claims that the mother’s emotional abuse of him caused him to snap – where the court is satisfied that the father perpetrated extensive and severe family violence during the relationship as alleged by the mother – where there is compelling evidence that the father was also violent to a previous domestic partner.

FAMILY LAW – Where the child is displaying autistic-like symptoms – where the child’s paediatrician believes that the child has suffered Developmental Trauma as a result of exposure to family violence – issues of whether the child is likely to be re-traumatised if he sees the father, the impact on the mother of making an order for time and the implications of the father minimising or denying his responsibility for violence considered.

FAMILY LAW – Whether an order should be made requiring the mother to facilitate some time and communication between the child and the paternal grandparents – where the paternal grandparents support the father and accept his version of events.

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/107.html

Conclusion

334. Cases involving allegations of family violence are always challenging.
335. The first part of the challenge is to determine whether family violence in fact occurred and to what extent and in what circumstances. Sometimes allegations are falsely made or are exaggerated, sometimes violence has occurred only at the time of separation or may come within the definition of couple violence and sometimes both parents have been violent.
336. In the case before me however there is absolutely no doubt that the father perpetrated coercive and controlling family violence of a serious and extensive nature, and I have to consider the implications of this for the father’s time with X.
337. The fact that a person has committed such violence does not automatically mean that they will never be able to see their child. I am sure that people sometimes think that this is so and that this is one reason why the court is routinely faced with vigorous denials or extreme minimization when accusations of family violence are made even when the evidence about the violence is overwhelming, although there are many other reasons why people retreat into vigorous denial or minimization.
338. However the fact that such violence has occurred may for a variety of reasons mean that no time is indicated.
339. Some people who commit such violence are dangerous both to children and other adults and safety concerns may mean that time cannot be contemplated.
340. Some children who have been exposed to or subjected to such violence do not want to see their violent parent.
341. Sometimes children do want to see their violent parent but the acts of violence have been so severe and have had such a serious impact on the other parent that the court cannot consider ordering that the children spend time with and communicate with the perpetrator regardless of the children’s views.
342. For the court to make an order for time to occur against the wishes of a traumatised victim can lead to a range of possible problems including the victim’s parenting capacity being undermined or a high risk of contravention proceedings because the victim cannot bring themselves to comply with the orders.
343. Sadly many perpetrators of family violence have absolutely no understanding of the long term impact on their victim of their abuse. They fail to understand that their victim may remain fearful and avoidant of them for a very long time after a relationship ends, indeed may remain fearful and avoidant of them forever.
344. They fail to understand the psychological impact on a victim of being required to send their children to spend time with a perpetrator, which might be for a whole range of reasons including fear of what could happen to the children and fear of the children having inculcated into them the idea that the victim was at fault and that some people just can’t keep their mouths shut and stir other people up and only have themselves to blame and should be more forgiving if the perpetrator says they are sorry afterwards.
345. At the other end of the spectrum some perpetrators make admissions, are genuinely remorseful, sometimes realize that they are the victim of the example set to them by their parents, and make every effort to change, and in those circumstances the desirability of a child having a meaningful relationship with both of their parents comes to the fore.
346. And of course many cases sit somewhere else in the spectrum and they could involve any number of different scenarios, for example where no real admissions are made but the child has a strong desire for a relationship with the other parent, where the victim can tolerate the idea of the child spending time with the perpetrator and is not worried about the child’s safety and has a strong relationship with the child and does not fear the child being turned against them or following a poor example set by the other parent.
347. The permutations are endless, as is the nature and extent of family violence in any given case which can also influence the outcome, and I have to decide where this case sits.
348. In this case I am satisfied of the following:
     1. The mother was subjected to serious physical violence and demeaning and belittling verbal abuse during her relationship with the father and to some demeaning and belittling verbal abuse after the relationship ended.
     2. Toward the end of the relationship the mother feared for her life and for the safety of X and she remains fearful of the father.
     100. The father has made minimal admissions and blames the mother for his behaviour. I do not accept that he is genuinely remorseful for anything. He shows no empathy for the mother or for X.
     4. The court proceedings have required the mother to relive her experiences repeatedly which she has found difficult and stressful; her psychologist believes that she is suffering from Post-Traumatic Stress Disorder.
     5. The mother is strongly opposed to the father spending time with X and would find it difficult to comply with a court order about the father spending time with and communicating with him.
     6. The father was violent in a previous relationship, something he also chooses to deny. He has anger management problems and there is a high risk that he may be violent in future relationships and violent to his son. The risk for X is ratcheted up by the fact that X has Developmental Trauma if not ASD and has meltdowns and can display challenging behavior. A parent caring for him needs a high level of empathy, parenting skill and knowledge of his issues, none of which the father has. There is no likelihood at present of the father ever being able to spend unsupervised time with X.
     7. In his refusal to accept responsibility for his actions and his willingness to blame others for the results of his failure to manage his temper the father is an extremely poor role model for X.
349. Against that background I must decide whether to make the order the father sought that he commence having some limited telephone communication with X and commence seeing him four times a year once he had done twelve months of therapy and had educated himself about X’s condition.
350. I cannot see any benefit to X in me making such orders when there is no sign of the father acknowledging his violence and accepting responsibility for it.
351. The mother would find it difficult to comply with orders for time in the face of the father’s denial of his violence and it would be painful for her to have to deal with the Skype calls which would force her to see the father and hear him speak. X is too young to be sent off into another room with the phone. The mother would have to explain to X who the father was.
352. Until the father acknowledges his violence and his responsibility for it he will gain nothing from therapy, and there is therefore no prospect of him ever being able to see X other than in a supervised setting and if this is all that can occur what is the benefit to X of it occurring?
353. Finally, X has Developmental Trauma and is to receive specialist help at the Berry Street Clinic at (omitted). Experts have expressed concern about whether he may be re-traumatised if he is introduced to the father and if there is not likely to be any benefit to X in seeing the father I would not be willing to take any risk with this vulnerable child.
354. I intend to order that the father spend no time with and have no communication with X.
355. Counsel for the Independent Children’s Lawyer supported this outcome but proposed an order that the paternal grandparents spend some limited time with X. The father’s counsel endorsed the proposal that the paternal grandparents be joined as parties and that an order be made about them having some limited contact with X.
356. There should be no issue of X being re-traumatised by exposure to the paternal grandparents but one has to wonder what would be gained by ordering this time if this time also could never move beyond limited time in a supervised setting. Once again, who is benefitting from it?
357. The paternal grandparents are ardent supporters of the father and they do not believe the mother’s account of what she and X experienced. The mother asked them for help and support during her relationship with the father and they did not provide it. It is difficult at present to see the mother trusting that if the paternal grandparents spent time with X they would not somehow try to introduce the father into the equation by photographs or otherwise.
358. I do not intend to make orders about the paternal grandparents spending time with X. If the paternal grandparents wish to be part of X’s life then they need to mend their bridges with the mother. I do not know if they can, but until they do I am not prepared to force the mother to accept an outcome which she does not support.
359. I am also mindful of the fact that the paternal grandparents themselves did not seek these orders; even when they were seeking to be parties earlier in the proceedings they did not seek orders about X spending time with them, and it has to be open to question whether they would make the effort to travel to the (omitted) area to spend supervised time with X no matter what they might have said in the witness box when this proposition was put to them.
360. The Independent Children’s Lawyer proposed an order that the mother provide a post office box to which the father and paternal grandparents could send letters cards and gifts to X. I am not prepared to make that order. Receiving such items is likely to be stressful for the mother at the current time. If the father wishes to get back into his son’s life and see what he looks like and be aware of his development then he needs to address his own issues, and if he does then the opportunity for both him and the paternal grandparents to form a relationship with X may spring to life.
361. The Independent Children’s Lawyer proposed an order that the father be authorised to obtain copies of X’s school reports from ASPECT and any other school in which he is subsequently enrolled but I cannot see what X would gain from such an order being made and I repeat, if the father wishes to get back into X’s life he needs to address his own issues.
362. The Independent Children’s Lawyer proposed that an order be made as follows:

Should the father subsequently issue fresh proceedings seeking orders to commence spending time with the child, the father shall exhibit to any supporting affidavit evidence of the satisfactory completion of the following:

1. The “Taking Responsibility” course offered by Relationships Australia (omitted) or a similar course designed to address issues of anger management and family violence;
2. A minimum of 10 sessions with a psychologist other than Ms N addressing the impact of his violence upon the child X and the father shall provide to the psychologist a copy of these reasons for judgment and a copy of the report of Dr A.

100. A course of at least 6 months duration designed to promote the abstinence from drugs and alcohol.

363. I do not intend to make this order. I am particularly concerned about proposed order (c) but my primary concern is that this is tantamount to inviting fresh proceedings in circumstances where the father has simply ticked some boxes.
364. The father can bring fresh proceedings in the future if he considers that he can demonstrate a change of circumstances but I do not intend to make an order either prescribing or constraining the way in which he can show that or suggesting to him that if he does certain courses that will be enough.
365. For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.