FATHER SEEKS TIME WITH HIS CHILD DESPITE THE MOTHER’S ALLEGATION OF THE FATHER’S VIOLENT BEHAVIOR ACCORDING TO THE FATHER’S EX-WIFE
Kala & Kamdar (No.2) [2020] FCCA 2503 (10 September 2020)
This case involves the father seeking unsupervised time with his child despite the mother’s contention that the father is violent which she relied mainly on hearsay allegations.
Facts:
The applicant (father) proposes that he spend the time with his daughter on a graduated basis leading to each second weekend between Friday and Sunday (or perhaps Monday morning) together with a meal on one night each week. While the mother asked for X’s time with the father to be limited and supervised either at a contact center or by professional supervisor and such to be paid by the father for times ‘as can be accommodated by the supervisor on alternate weekends for up to 5 hours. She sought sole parental responsibility for X.
The mother apparently relies on the hearsay allegations in respect of the father allegedly perpetrating violence on his older son. She gives no explanation for not adducing evidence from that child's mother, save and except the suggestion that the two women have not historically been on good terms but where nevertheless, the mother appears to have come by this information through the father's ex-wife.
Issue:
Should the father spend unsupervised time with his daughter despite the mother’s allegation that the father presents as some form of unacceptable risk to the child by reason of propensity for physical violence and/or emotional and coercive family violence?
Law:
- S60CC- How a court determines what is in a child’s best interest
(2) The primary considerations are
(a) The benefit of the child having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
- S97 of the Evidence Act- Tendency Rule
- Evidence of character, reputation or conduct of a person, or a tendency that a person had, is not admissible to prove that a person has a tendency to (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind
Analysis:
The mother deposes that she had the advice of the father's ex-wife in respect of asserted family violence by him on his son by that marriage. She did not adduce evidence from the ex-wife. She did not adduce evidence in a form that could be properly tested from any child protective or hospital authorities. The ex-wife's assertions were met with consistent denials by the father. As such, the wife's case rested essentially on propensity or tendency and hearsay evidence which may have been convincing for the family reporter but which suffers in its probity in respect of the provisions of s.97 of the Evidence Act even in proceedings in these Courts where the rules of evidence are not strictly applied but where the mother retains an onus to prove an assertion of fact on the balance of probabilities.
In circumstances where the parents have clearly separated in unhappy circumstances and where the court is generally satisfied of power imbalances within their relationship, the mother had previously 'permitted' unsupervised time for X, at two years of age, with the father. It seems that circumstances such as the ex-wife's untested, uncorroborated, and denied allegations together with the recommendations of the doctor may have caused this mother to act in a cautious and conservative manner.
Conclusion: The court is not satisfied that the father has perpetrated family violence of a physical type in respect of X, the mother or his older child. The evidence in respect of this issue is vague, uncorroborated and certainly not such to convince me on the balance of probabilities. Therefore, the court’s is not persuaded that X's time with him should be supervised.