Court Orders No Custodial Time for the Father due to Family Violence
Scalero & Belmonti [2021] FCCA 1073 (20 May 2021)
The mother sought to prohibit the father from having any contact with their daughter due to a history of family violence which is corroborated by herself, the child, and the maternal grandmother.
Facts:
The mother and the Independent Children’s Lawyer seek orders preventing X from having any relationship with the respondent father. The father allegedly perpetrated significant family violence through controlling behavior, death threats, and other derogatory comments. The mother also alleges that the child fears him due to his aggressive behavior. A domestic violence order lists the mother, maternal grandmother, and the child as persons in need of protection. The father however seeks an equal shared parental responsibility with the mother for the welfare of X. In the cross examinations, the maternal grandmother and the mother were responsive and unshaken by allegations of family violence but the father would contradict his own evidence at times.
Issue:
Whether or not the father poses an unacceptable risk of harm to the child.
Applicable Law:
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Family Law Act 1975 (Cth) pt VII ss 60B, 60CC, 61DA - the best interests of the child as well as the presumption of equal shared parental responsibility should be considered in making an order. M & M [1998] FamCA 1742 - family violence poses a significant risk to the developmental well-being of young children. |
Analysis:
Allowing the father’s proposition may affect the child negatively. She may develop self-harming behaviors and there is no evidence of any positive relationship between X and her father. It is in the best interests of the child to be with her mother who is capable of creating a loving and safe environment which the father could not possibly create. The father poses an unacceptable risk to the child and the latter is in need of protection from him since she has shown that she is traumatized from previous family violence.
Conclusion:
The court orders that the mother have sole parental responsibility for the child who shall live with the mother and spend no time with the father.