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A recently published family law appeal case is in the news, reported by The Guardian which tells how appeal judges decided a trial judge had make a mistake in finding a mother had perpetrated family violence through controlling behaviour which had restricted her child’s relationship with his father.

In the case pseudonymised as Carter & Wilson, the mother and father had been granted equal shared parental responsibility for the six year old boy, with orders made for the child to live with mum and spend time with dad. The mother had then appealed this decision, as she had sought sole parental responsibility.

Let’s unpack this one a little bit, in case the wrong conclusions are drawn.  Firstly, it’s important to realise that while the mother was successful in establishing error on the ground regarding whether or not she had committed family violence, the appeal was still dismissed, as the error didn’t in fact affect the outcome.

Why didn’t it affect the outcome?

While the trial judge had ruled the presumption of equal shared parental responsibility had been “rebutted” due to the presence of family violence, rebuttal does not actually mean that an order for equal shared parental responsibility is ruled out.

Equal shared parental responsibility can still be ordered if the initial presumption is rebutted: all it means is that rather than operating from a starting point of both parents automatically sharing parental responsibility, a judge must instead consider whether or not parental responsibility should be shared.  In this matter, the presumption was rebutted, but after consideration, the trial judge still ordered equal shared parental responsibility, after which considerations of how time should be shared were made.  (Confused? You’re not alone.  That’s why the proposed changes to the family law legislation are needed.)

The trial judge did find the mother had perpetrated family violence through controlling behaviours.  However, the trial judge also found the father had perpetrated family violence (which he admitted and which was unchallenged).  Therefore, the presumption was rebutted regardless of whether the mother had been wrongly found to have committed family violence.  And this is why the appeal was dismissed.

So what was said to constitute the mother’s family violence?

The definition of “family violence” in the Family Law Act 1975 is very wide ranging because of the many different behaviours that can potentially be said to constitute family violence.

The element of control is an important part of the concept of family violence, and controlling behaviours can be found to indicate family violence just as much as physical acts of violence do.

Controlling behaviours include restricting a child’s time spent with a co-parent.  In fact, such behaviours (often described as “parental alienation”) are classified in the Act under the provision “preventing the family member from making or keeping connections with his or her family, friends or culture”.

In this matter, the mother was initially found to have prevented the child from maintaining a relationship with its father through limiting time they spent together and insisting the time spent was supervised.  The appeal however ruled that she had not engaged in family violence.

Is limiting time with a co-parent “family violence”?

The problem here was that an analysis of the context of the mother’s controlling behaviour was missing from the trial judge’s decision-making process.  The appeal judges said that “context is all important”, but the trial judge’s reasons had not included “an analysis of the evidence or findings about the respects in which [the trial judge] was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.”

Contextualising the parent’s behaviour is vital, because not all parents who withhold a child or restrict access to a co-parent are acting maliciously, in the sense that it is parental alienation.

Here, for example, the mother hadn’t made false allegations against the father in a strategic or malicious way. The appeal judges noted, “There was no finding that the mother was acting other than protectively towards the child.”  This is because the mother’s concerns for the welfare of the child, which had prompted her initial withholding and restricting behaviours, were based on the fact that she had witnessed him engaging in family violence against his children previously (something he admitted), and he had also violently assaulted her.

Key takeaway

Controlling behaviours that restrict a child’s time with a co-parent may be seen as family violence, but they must be assessed in context.  If the context reveals that the controlling behaviour is probably designed to destroy a co-parent’s relationship with a child for selfish or malicious reasons, then that may well be a case of parental alienation and family violence.  But if the context shows that the restriction of time is based on genuine concerns over the child’s welfare, this will not necessarily constitute family violence. The implication of whether there is a finding that family violence occurred is that the presumption of equal shared parental responsibility can be rebutted–but remember that this does not mean that shared parental responsibility is therefore ruled out.

Do you need help with a parenting matter, or any other family law advice?  Please contact Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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