The Full Court of the Family Court of Australia has found that a trial Judge made an error, by deciding that a child was at risk of family violence based only on the fact that there had been family violence during the relationship that had ended 6 years earlier (Soulos & Sorbo [2019] FamCAFC 231).
This decision has a number of elements that are worth unpacking.
The factual background
The parties were in a relationship long distance from 2009. The mother moved from overseas to Australia to be with the father in 2010 and they were married in 2011. Their only child was born in 2011, and the parties separated in 2012 when the mother left with the child for a refuge.
The father did not see the child after separation until 2013, when he started spending supervised time with the child. This continued until trial in 2015, when a judge ordered that the mother would not be permitted to relocate to her home country, and that the father should spend unsupervised time with the child. There was an appeal from this decision that was successful, and so the matter was sent back for a further hearing. In the meantime, the father continued spending unsupervised time with the child.
The final decision was not made until December 2018, by which time it was six years since the parties separated.
The family violence
There was a significant part of the appeal decision of the Full Court that dealt with whether the judge had made any errors in her findings of fact relating to family violence. The outcome of this was that the Full Court accepted the trial judge’s findings that:
- the father pushed the mother up against the wall during an argument when she was four months pregnant;
- when the child was two weeks old the father jumped towards the mother, went red in the face and aggressively told her that she was not to tell him how to behave with his son
- the father grabbed he mother around the throat, squeezed it and said “[a]s long as you live under my roof, you are never allowed to speak [your language] to my son”
- the father grabbed the mother’s hair, pulled her to the ground, sat on her breasts, grabbed her around the throat, pinned her body between his legs and spat on her.
- the father pulled and grabbed the mother’s hair, dragged her along the ground, shook her head and spat in her face;
- the father had been convicted of intimidation charges of which the mother was the victim following separation, which he later tried to minimize during his evidence.
All of these incidents happened during the relationship.
It was also found that:
- There had been no family violence since the relationship ended.
- The mother’s lawyer during the trial had not submitted to the judge that there was an ongoing risk of harm to the child from family violence
- The ICL submitted that there was no risk of family violence to the child
- The Single Expert Witness’s evidence was that he did not consider the father a risk to the child or the mother.
Based on the above, the Full Court said “Therefore, having regard to the evidence of Dr M [the single expert] and the submissions that were made, there was no issue at the hearing that the child was at a future risk of harm when in the care of the father”.
What the trial judge did find is that “Having regard to my findings in relation to the father’s violence against the mother, the father’s complete denial of any violent behaviour (even in relation to the offence to which he pleaded guilty which was so minimised in these proceedings to amount to a denial) and the impact upon the child if such violence were to occur in my view there is a risk of harm to the child in the father’s care. I do not however assess this risk as unacceptable in circumstances where there is no positive evidence to suggest that the father is violent in his current relationship. Although I do not assess the risk as unacceptable, some weight must be attached to this matter when considering the need to protect the child from harm associated with exposure to family violence.”
What does this decision mean?
The Full Court found that in this particular case “we consider that the evidence could not support the finding made by her Honour”.
This seems to indicate that in a case where the only family violence took place during the relationship, and there is no expert evidence to suggest that there is an ongoing risk, a judge will not be justified in finding that there is an ongoing risk of harm to a child.
Concerns
This judgment appears to stand for the principle that a history of family violence (even serious family violence like being held by the throat) cannot of itself support a finding that there is an ongoing risk of harm to children from family violence, even where the perpetrator denies and minimises that behaviour.
This would be a concerning approach for the Family Court to take, restricting as it does the discretion of the judge to make findings based on the evidence.
The Family Court is not a court based on pleadings, where a proposition needs to be put to the Court before it can be considered. It is a Court which must make prospective assessments based on the evidence available at the time, and which has the discretion to make orders that are not sought by either party. There does not appear to be any legislative provision that prevents a judge from making a finding that the existence of prior family violence coupled with denial and minimisation of that violence by the perpetrator means that there is a risk of the perpetrator “re-offending”.
This decision may deter other trial judges from making similar findings in the future, which may put other families at risk of family violence.