…controlling behaviour – children – s4AB Family Law Act 1975 (Cth)
In Carter & Wilson [2023] FedCFamC1A 9 (10 February 2023), the Full Court (McClelland DCJ, Bennett & Campton JJ) dismissed an appeal from a decision of Jarrett J for equal shared parental responsibility of a 6-year-old.
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.
The court found that the mother’s insistence on supervision and withholding the child from paternal time was controlling behaviour and was ‘family violence’ under s4AB(1) of the Family Law Act 1975 (Cth) (the Act). The mother contested that finding.
Bennett J said (from [68]):
“The … judge found that the mother had engaged in family violence … because she ‘initially’ prevented … [the child] from spending time with the father which … ‘controlled [him] and … his relationship with the [father]. … ’ (…)
[74] … Whilst the term ‘coercive control’ has been attributed a legal definition … in some jurisdictions, s4AB of the Act does not do so. …
[83] … [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. (…)
[85] … [T]here is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour … controlled the child in the sense contemplated by s4AB(1) … (…)
[91] There is … force in the submission by the ICL [independent children’s lawyer] that to characterise the uncontextualised behaviour of the mother … as family violence within the meaning of s4AB(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. (…)
[94] … [T]he … judge erred in finding that the mother engaged in family violence as defined in s4AB of the Act. (…)”
McClelland DCJ & Campton J agreed with Bennett J.
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
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