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Latest Notable Cases samples

This is a sample (posted 20 February 2019) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

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Children – Interim hearing – Children withheld after eldest child said she was struck by mother – Father loses appeal against dismissal of his application for change of residence – No unacceptable risk of harm – Lawful chastisement for purpose of s 61AA of the Crimes Act 1900 (NSW)

In Cao [2018] FamCAFC 252 (19 December 2018) the father of 8 and 4 year old children filed an urgent interim application for a change of residence to him, his case being that the eldest child told him (and, although not in identical terms, also told the school principal and police to whom he took the child) that the mother had struck her. The father kept the children in his care after the disclosure notwithstanding an interim order made in 2016 that the children live with the mother.

At first instance, the ICL supported the father’s case, submitting that the mother’s new partner (“Mr C”) also posed a welfare risk to the child by being exposed to previous violence by Mr C towards the mother, but Judge Obradovic dismissed the father’s application, finding that the mother did not present an unacceptable risk of harm. The father appealed.

Austin J (sitting in the appellate jurisdiction of the Family Court of Australia) said (from [23]):

“ … it seemed that, relevantly for the determination concerning the children’s best interests pursuant to the primary consideration expressed within s 60CC(2)(b) of the Act:

(a) The father was contending the children were at risk of harm by being subjected to physical abuse by the mother; and

(b) The father and the independent children’s lawyer were both contending the children were at risk of harm by being exposed to family violence committed between the mother and Mr C.

[24] The second asserted risk hardly warranted, in response to an urgent interim application, the reversal of the children’s residence and the constriction of their future interaction with the mother by the imposition of professional supervision. The evidence did reveal Mr C assaulted the mother, but that was in February 2017, some 15 months before the father filed his urgent application. The father and the independent children’s lawyer were aware of that incident long before and the urgency to react to that incident had long since subsided. Characterising that incident as historic is not intended to trivialise the risk of harm posed to the children by their exposure to family violence, but rather to elucidate the true issue the primary judge was being asked to adjudicate on an urgent basis in May 2018, before any of the evidence was properly tested at trial.

( … )

[26] In reality, it was the first asserted risk which motivated the father to act. He contended the mother physically assaulted the eldest child on 1 May 2018. It was that belief which caused him to withhold the [children] … and to file his urgent interim application 15 May 2018. …

( … )

[28] The primary judge was correct to be wary. Serious allegations cannot be disregarded just because the evidence is controversial and factual findings cannot ordinarily be made during an interim hearing. The court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet the children’s best interests (see Salah & Salah [2016] FamCAFC 100 … at [33]-[45]; Eaby & Speelman [2015] FamCAFC 104 … at [18]-[19]; … Whitby & Zeller (No.2) [2014] FamCAFC 239 at [63], [71]).

[29] Her Honour knew ‘a risk assessment exercise’ was at hand and she was ‘oblig[ed] to ameliorate the risk in the best manner possible’ … Her Honour also correctly acknowledged that ‘[r]isk assessment is not an exact science’ …

( … )

[31] The primary judge commendably remained open to persuasion until the last submission was made. Her interventions were moderate and appropriate.

( … )

[34] Understandably, her Honour expressed significant concern about the serious nature of the allegation made against the mother … so it was not waved away without close attention. The remarks made by the primary judge to the mother’s counsel and the independent children’s lawyer during submissions … demonstrated the thorough consideration given to the evidence and the way to remedy the dispute.

[35] The primary judge ultimately concluded … :

‘In all of the circumstances, the Court does not find that there is an unacceptable risk of harm to the children in the mother’s household.’

[36] For present purposes, it is important to note her Honour found there was no ‘unacceptable risk’ of harm posed to the children in the mother’s household; not that there was no risk of harm at all. There is obviously a difference between a risk of some occurrence and an unacceptably high risk of the same occurrence. The former may be tolerated, but not the latter.

[37] In summary, the primary judge found the risk of harm to the children in the mother’s household was not unacceptably high because she lived alone with the children and Mr C was not a member of her household … , she agreed to submit to an injunction restraining the children’s interaction with Mr C …, and although the independent children’s lawyer doubted her capacity or willingness to abide by such an injunction … her Honour at least inferentially expected she would. Her Honour considered those factors ameliorated the risk of harm to the children in the mother’s care … The primary judge was also concerned about the risk of harm posed to the children by their exposure to the intense parental conflict and the damage to their relationships with the mother, from whom they were still being withheld by the father … The primary judge found it a ‘tough decision’ … but found in favour of adherence to the existing orders pending the final trial, which was then imminent …

( … )

[42] … [E]ven if the eldest child was struck by the mother, as she alleged, it did not necessarily mean she was physically assaulted. For example, she may only have been physically chastised. Even though corporal punishment is falling out of favour under contemporary moral standards, it is still not yet unlawful to use modest physical force to chastise a child (s 61AA of the Crimes Act 1900 (NSW)). Corporal punishment does not amount to physical ‘abuse’ under the Act unless it constitutes an assault (s 4(1)). Significantly, as was noted by the primary judge (at [29]), on the afternoon the matter was reported by the father, the police recorded in relation to the allegation:

‘ ... Due to the age of the [child] she was not specific as to how the assault occurred and whether or not it was under the grounds of lawful chastisement ... Police are of the opinion the use of force on the [child] is borderline excessive.’

(Emphasis added)

[43] It would therefore seem the police contemplated the mother may have smacked the eldest child and they remained unconvinced the incident amounted to an assault of the child by the mother. There was certainly no evidence before the primary judge (or in the appeal) that the mother was charged by police with any criminal offence arising out of the incident. The police issued a provisional apprehended violence order against the mother for the children’s protection, but its terms did not preclude the children from living or spending time with her.”

The father’s appeal was dismissed with costs.

NOTE – A further 6 cases are summarised for members this month at our Members' Home Page under "latest notable cases" under the following headings:

High Court dismisses Commissioner of Taxation’s appeal – Court has power under s 90AE to order Commissioner to substitute husband for wife in relation to tax debt if it is not foreseeable that the order would result in the debt not being paid in full

Property – Interim order – Court erred in appointing a receiver and manager to the parties’ business where solvency was in dispute and a finding that the business was dysfunctional was not supported by the evidence

Property – “Equalisation” of parties’ super entitlements set aside – Court erred by not considering the nature of husband’s defined benefit interest in the Commonwealth Public Sector Superannuation Scheme and the effect of a split by reference to the PSS fund trust deed

Property – Interim hearing – Wife’s future employment bonus payments not “property” so could not be the subject of an order for partial property settlement

Property – $275,000 held by husband in an overseas bank account excluded from pool – Express trust declared in favour of the parties’ daughter

Procedure – Principles for the granting of leave to withdraw a notice of discontinuance