In this video, family law partner Justine Woods compares two cases about children and domestic violence issues to illustrate how the facts of your own case, and how it is run, will influence the outcome.
Video transcript
Hello, hello, everyone. I'm Justine Woods. I'm the family law partner at Cooper Grace Ward. And today I thought I'd cover two cases about children and domestic violence issues to illustrate how the facts of your own case and to some degree, how it's run, but primarily the facts and the history that you present with, is going to profoundly influence the outcome.
Lim and Zong case
So, a recent case of Lim and Zong was a case run here in Brisbane where the judge found that a ten-year-old child ought not to see his father at all because doing so placed him at an unacceptable risk of harm. There was accepted evidence of significant incidents of domestic violence throughout the relationship and then post separation, a long-term pattern of what the judge called pervasive, coercive and controlling conduct. Now, as you might be aware, most states and territories of Australia are grappling with the scourge of domestic violence. What to do about it?
Coercive control legislation
Legislation is being considered, not yet in its final form, is my understanding about introducing coercive control as an offense or something like that in each state and territory. So, a criminal offense of coercive control is potentially going to be in force. And certainly, it's already been a feature of most of the domestic violence legislation and is going to be given greater significance. And it's more about a pattern of behaviour over a long period of time. So, in that case, the judge found that the mother's mental health and there was no dispute that she was the primary carer, which is not always the case, but in this case, it was, that her parenting capacity would be so negatively impact if she had to enable time between the father and the child, that time ought not to be ordered. And so, that's an outcome on one set of facts.
Recent Blatch case
Now, another recent case of Blatch, it had two children, ten and twelve. There was an incident of severe domestic violence at separation, although the husband's conviction of an offense arising from that was quashed and also the domestic violence order set aside. But in the family court, it's a different standard of proof and it appears to have been accepted that the incident had occurred and that the children had been distressed and harmed by it. Now it's an interesting case because, you know, terrible conduct on the father's part, almost equally terrible conduct on the mother's part, really, according to the judge. And I just thought this is again and we've dealt with it in another video, why have to try and behave well. Because if you behave badly enough, it will be seen as this disentitling conduct or you will not get orders that you might otherwise get if you're unable to moderate your behaviour. So, the judge said, 'I accept the evidence of the family report writer about the harm that has been caused to the children and the risk of further harm, all of which stems from the intractable and unabated conflict between their parents. Since neither parent has heeded the very clear warnings of the family report writer about the effect of their behaviour on the children and the possibility of further psychological damage to the children if they do not take steps to remediate their respective attitudes, I am unable to make any orders which will affect those necessary attitudinal changes. Each of the parents fails to take responsibility for his or her contributions to the risks that their children are facing as a result of their parents' continuing conflict'. So, what happened in that case is that the children lived with the mother. She was violently opposed to the children seeing their father. That was overruled and they were ordered to spend holiday and additional school time with him because that was their wish. And the judge had nothing but criticism for both of them. Now, I wouldn't have said this as a young practitioner, but I do say to clients now, sometimes 'you do know you're making your children crazy, don't you?' You are actively harming them by exposing them to conflict, to aggression, let alone violence, but to the continual undermining of the relationship with the other parent, to belittling them. And you really have to say to people, you know, your child is one half of this complex genetic makeup, yours and the other persons. They see themselves in both of you. How can it be other than damaging to hear constant criticism of the other parent and to see parents who are supposed to provide safety, continually arguing and worse? So, and it's not just if people are unable to see the benefit of looking after their own children and shielding them from conflict, it will also strategically damage your case. And so, on that level alone, it's worthwhile taking steps to moderate that behaviour. And I think to be conscious of giving very clear, very detailed, very accurate instructions to your lawyer, because the strategy we craft will be entirely, will be based on those instructions and any, of course, supporting or substantiating documents that confirm those instructions. But largely, if you say, if you give one set of facts, that's likely to be the outcome. A different set of facts is going to produce a very different outcome. As you can see in those two cases that I've just mentioned.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
