No time ordered with father. psychological impact on child considered

Children – Interim hearing – Contested allegations of family violence –Father’s prior conviction for two serious assaults on mother – ICL supported supervised time – Father to spend no supervised or other time with 2 year old child due to risk of psychological harm to child

In Churchill & Wileman [2014] FCCA 1047 (10 April 2014) Judge Terry considered interim parenting arrangements for a child aged 2 years and 3 months. The child had spent “no time with the father since separation save for an hour under the supervision of the mother and a friend of hers” (para 24). The father brought his application seeking supervised time incrementing towards unsupervised weekend time, while the mother sought an order that he have no time, alleging that he had “engaged in coercive and controlling violence throughout their relationship” (para 6); that the child “would not be safe in an unsupervised setting” and that the child “might be traumatised or re-traumatised if he spent time with the father in a supervised setting” (para 7).

The ICL “supported an order for supervised time … at the (omitted) Contact Centre … [as] the child would be safe from harm [there] … [and] it would be valuable for some time to occur before a family report was prepared” (para 5).

The Court said that the violence inflicted by the father upon the mother was such that “the father was charged with two counts of common assault, two counts of assault occasioning bodily harm, a number of counts of stalk and intimidate and one count of breaching a good behaviour bond” (para 17) to which “the father pleaded guilty” (para 18).

The Court said (at para 41):

“The father said that apart from the occasions when he admittedly assaulted the mother … he had not engaged in coercive and controlling violence or any violence at all during the relationship.”

but also said (at paras 22-23):

“What concerns me greatly about this evidence is that the father also attached to his affidavits a copy of the fact sheets which were handed up to the Court when he pleaded guilty, the facts to which he admitted, and those were not the facts set out in paragraphs 67 and 68 of his affidavit but facts that bear a very close resemblance to what the mother said happened during those incidents.

The fact that the father in his affidavit tried to minimise what occurred causes me great concern because the other thing which is in the fact sheets which formed the basis of the father’s guilty plea is that the mother sustained bruising as a result of the assaults on both occasions.”

When considering the child’s best interests, the Court said (from para 56):

“I cannot make findings about where the truth lies in respect of any of the matters in dispute and the father’s counsel submitted that I should be particularly cautious about how I treated the mother’s allegations about sustained violence when there had been no complaints to police except on the two occasions which resulted in the father being charged.

[57] The father’s counsel asked me to have regard to the fact that there had been no complaints to doctors or to hospitals or to anyone else although ‘anyone else’ is not quite correct.

[58] Counsel for the Independent Children’s Lawyer said that I should have regard to the fact that the father had no convictions for offences of violence save for the ones arising out of the [two assaults in July and August 2012].

[59] However the fact that alleged perpetrators have no convictions or that no complaints were made by the alleged victim to persons in authority during the relationship does not necessarily mean that no violence occurred.

[60] There are many reasons why victims of family violence do not … tell other people at the time about what is happening: shame that they have found themselves in this position; a misplaced belief that somehow they are responsible for what is happening; a willingness to give someone who on some occasions can be charming and kind a second chance; a desire not to lose a relationship; or fear about what might happen if they go to the police and make a complaint.

( … )

[63] So the fact that no complaints were made in this case prior to July 2012 to police or hospitals does not tell me anything one way or the other. It might mean that nothing occurred but it might just mean that a whole lot of other things were operating for the mother.

[64] I accept that people do sometimes exaggerate or fabricate allegations of violence but I have to make some assessment of probabilities and there are a number of things in this case which incline me to the view that I should treat the allegations seriously and act cautiously in the light of the allegations …

[65] First, the mother did make some complaints at the time to friends about what was happening …

[66] Second, the father undoubtedly perpetrated violence [when the two assaults occurred] and if the information in the fact sheets is correct and in my view I am entitled to provisionally consider that it is, serious acts of violence were committed on those occasions.

[67] Third, the content of some of the text messages sent by the father, the threats and the language to the mother in those, lends some colour of credibility to the mother’s allegations.

[68] Fourth, the mother’s allegations were detailed, they were not just general allegations such as “I was subjected to family violence” but were detailed and specific.”

As to whether time should occur at a contact centre, rather than no time, the Court said (from para 81):

“It is true that if X spent time with the father at a contact centre he would not be at risk of physical harm. …

( … )

[104] I cannot make any findings about whether the allegations the mother makes about the father are true but as I have already indicated they are extremely serious. If they are true then the father has caused harm to his child. A parent harms a child when they harm the other parent. If the allegations are true then the father’s denial of his violence and his attempt to blame the mother for his predicament means that there may be no likelihood of him being able to change in the future.

[105] If they are true he is an exceptionally poor role model for the child and there are serious implications for a child in being exposed to a perpetrator of family violence. They can grow up to be perpetrators of family violence themselves. They can become depressed. They can be aggressive to the other children at kindergarten. It is an extremely serious situation.

( … )

[111] In some circumstances [time at a contact centre prior to a family report] might be a valid approach but I am not necessarily convinced that it would be a valid approach in this case because in my view the problem of whether or not the child should spend time with the father is a complex one.

[112] The child might be protected from physical harm at the contact centre but I cannot make findings about the psychological effect on the child of spending time with the father if the mother’s allegations are true.

( … )

[114] I am not necessarily convinced that it is critically important for the purposes of having a valuable family report that some time occur before the report is prepared.”

The Court ordered that until further order the mother have sole parental responsibility and that the father spend no time with the child.

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