Children – Judge’s finding that mother’s withholding of child was controlling behaviour that amounted to family violence under s 4AB of the Act was in error
In Carter & Wilson [2023] FedCFamC1A 9 (10 February 2023), the Full Court (McClelland DCJ, Bennett & Campton JJ) heard an appeal from a decision of Jarrett J for equal shared parental responsibility of a 6 year old child.
The parties agreed on all other parenting arrangements and consent orders were made for paternal time to incrementally increase to alternate weekends, plus an evening in each alternate week.
The family report writer recommended that the child live with the mother and that she have sole parental responsibility ([43]). The mother alleged physical violence by the father.
At first instance, the Court found that the father had engaged in one act of physical violence against the mother and he had also held his hand over the mouth of his daughter (of a previous relationship) to stop her from screaming. The Court also found that the mother’s insistence on supervision and withholding the child from paternal time was controlling behaviour of a family member that was family violence under s 4AB(1) of the Act.
On appeal, the mother contested the finding that she had engaged in family violence.
Bennett J said (from [68]):
“The primary judge found that the mother had engaged in family violence in relation to the child because she ‘initially’ prevented him from spending time with the father which … ‘controlled [the child] and controlled his relationship with the [father]. It also controlled the [father] in his relationship with [the child]. That control prevented [the child] from keeping connections with his family, namely his father’ (at [18]).
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[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. … [T]he section also catches behaviour which is both acceptable and necessary (for example, exerting control over child in the exercise of the parenting powers). … [I]n practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
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[74] ‘Coercive control’ is a technical phrase in social science literature. It is a concatenation of coercive behaviour and controlling behaviour and is a subcategory of one or both types of behaviour. Whilst the term ‘coercive control’ has been attributed a legal definition in legislation in some jurisdictions, s 4AB of the Act does not do so. …
[75] If the legislature intended to provide a definition of ‘coercive control’, it would have done so. The very wide definition in s 4AB(1) coupled with the non-exhaustive list in s 4AB(2) conveys an intention of width. … [W]hen s 4AB is interpreted and its application to a particular set of facts considered, there needs to be a consideration of whether the application of the definition meets the purpose of the statute.
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[83] The mother’s behaviour in restricting time between the father and the child could be behaviour caught by s 4AB as behaviour which is controlling without being coercive. However, conduct does not amount to family violence simply because the primary judge labels it thus. In determining whether a party has engaged in a pattern of coercive or controlling behaviour, context is important. As observed by the Full Court in Helbig & Rowe and Ors [2016] FamCAFC 117 at [91], a finding that a party has engaged in such conduct will generally require a description of what was said and done and the context in which the conduct occurred.
[84] A finding of family violence is a conclusion which must be based on an evaluation of evidence. … [S]ome situations will require a more detailed evaluation than others. Behaviour which is subtle or comprised of common, everyday behaviours is likely to require a greater degree of context to qualify as family violence under s 4AB than would, say, behaviour to which no ambiguity attaches.
[85] … [T]here is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father ‘initially’ (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
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[90] On the facts of this case, relevant context included the circumstances in which the mother had herself been the subject of actual physical violence at the hands of the father …
[91] There is, with respect, force in the submission by the ICL that to characterise the uncontextualised behaviour of the mother in this case as family violence within the meaning of s 4AB(1) risks family violence being alleged in virtually every case where a party has genuine concerns regarding a child spending time with the non-resident parent. It cannot sensibly be contended that the definition of family violence was intended to apply to such circumstances.
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[94] … I conclude that the primary judge erred in finding that the mother engaged in family violence as defined in s 4AB of the Act. It is, however, necessary to determine the consequence of the primary judge’s error.
[95] … [T]he father conceded that his behaviour … constituted family violence, which was sufficient to sustain the finding by the primary judge that the presumption was rebutted. That is, irrespective of the unsustainable finding that the mother’s behaviour constituted family violence, there was a sound basis for the primary judge’s determination that the presumption of equal shared parental responsibility did not apply on the facts of this case.”
In separate reasons, McClelland DCJ & Campton J cited Illgen & Yike [2018] FamCA 17 and Ramzi & Moussa [2022] FedCFamC2F 1473 and said (at [15]-[17]):
“ … What is clear is that the determination of what constitutes behaviour ‘that coerces or controls’ must be considered in the context in which the conduct occurred …
In the context of the facts and circumstances of this case, we respectfully agree with Bennett J that the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1). In that respect, there was no finding that the mother’s concerns for the welfare of the child were other than genuine in the context where she had herself been the subject of one violent assault by the father …
The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important. …”
The appeal was dismissed. Costs certificates were granted.