13 Dec Family Court rules unacceptable risk -father cannot see daughter at all

A father failed in his appeal seeking to see his daughter in the case of Lim & Zong [2022] FedCFamC1A 146 (20 September 2022).

Background

This matter involved an appeal brought by the father of a 10 year old girl against parenting orders made by the family courts. The orders provided that the child would live with the mother and not spend any time with or communicate with the father.

The parties were married overseas in 2006 and moved to Australia in 2013, later divorcing in 2014. There was one child of the relationship born in 2012, a daughter now 10 years old.

Proceedings were commenced for parenting orders in the family courts in 2014. There were numerous court events and delays, most of which were caused by the father. In October 2020, the court ordered that the father was not to have any further time or communication with the child, on the basis that there was an unacceptable risk posed to the child by the father. The father appealed.

Unacceptable risk

An unacceptable risk refers to the risk of harm a child may be exposed to when spending time with/being cared for by a parent. A risk is considered unacceptable by the family courts where it outweighs the benefit of the child maintaining a meaningful relationship with the parent.

The risk in this case was constituted by family violence, primarily through acts of coercive and controlling behaviour committed by the father toward the mother over a period of years.

The judge who made the orders for no time with the father accepted the mother’s evidence that she had been subjected to a number of incidents of family violence perpetrated by the father over several years. These incidents included assault, threats of violence and death, sending abusive emails over at least 5 years and mistreating and mutilating pets.

The court also found that the father had used the child and changeovers to continue to pursue a relationship with the mother and to continue his harassment. His behaviour only ceased when his time with the child ceased as he did not have access to the mother any longer.

The long history and extent of litigation in the courts by the father was also considered by the court to constitute family violence by the father, as a means by which he sought to further exert coercive control over the mother.

The court noted that the proceedings were the fifth attempt by the mother to have the matter listed for hearing that was obstructed by the father, including by his firing two sets of lawyers. The father had also pursued domestic violence orders in the Magistrates’ Court against the mother that were found to be without merit.

Impact of family violence

The focus of the court was then on the impact that this coercive and controlling conduct had upon the mother and the impact that further contact between her and the father would have upon her emotional and psychological wellbeing, with the child being consequently vicariously impacted.

The court accepted evidence of the mother’s treating psychologist that she had developed a mental illness. It was concluded that the family violence perpetrated against her by the father, including the longs years of litigation in court, had taken a toll on the mother, the cumulative effect of which has resulted in the mother suffering from a mental illness.

This was made worse by stress and anxiety caused by the mother’s concerns for the wellbeing of the child if orders were made for the child to spend time with the father.

Having made these conclusions, the court determined that orders requiring the mother to facilitate the child spending time with the father, or communicating with the father, would have such an adverse psychological impact upon the mother that it would impact her parenting capacity and in turn vicariously harm the child.

The court considered this harm to the child alongside the child’s right to have a meaningful relationship with her father, and the effect of this on her identity as she grows up. It concluded that no time was warranted with the father as the greater concern was protecting the child from harm caused by the father’s actions toward the mother.

Appeal

The father appealed various findings of fact made by the judge, including that he had perpetrated family violence. He made complaint that the court did not adequately consider his evidence that he had committed to changing his behaviour, or that the mother had perpetrated family violence against him.

The appeals court found that there was no error in these findings of fact and therefore no error in the reasoning of the original judge exercising their discretion to cease time between the child and the father. It concluded that not only was the finding that there had been family violence open to the court, but that the available evidence compelled this finding.

The appeals court agreed with the original judge that was little evidence available to the court that the father had changed, especially where he was still using the court process as a tool for family violence, nor that there was evidence of the mother perpetrating family violence.

To the extent that there was contrary evidence, the appeals court did not think it would have changed the original court decision.

Outcome

The court found no merit in any of the grounds of appeal advanced by the father. The appeal was dismissed, and the father ordered to pay the mother’s costs.

The outcome of this matter is a timely reminder of the complexities that arise in parenting matters and the importance of obtaining accurate and specialist legal advice in relation to those issues.

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