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Child Emotional Abuse May Justify a Change in Residence in Family Law Proceedings

Child Emotional Abuse

Child Emotional Abuse: Managing the Risk

Allegations of violence or child abuse often raise issues of whether the child would be exposed to an unacceptable risk of harm if certain parenting arrangements were implemented. If the court is satisfied that the child would be exposed to an unacceptable risk of harm, then the question for the court to determine is “how might the risk be mitigated so as to render it acceptable?”

Rafferty & Spencer [2016] FamCAFC 97 was an appeal from the trial judges’ orders that the child live with the respondent father and spend time with the appellant mother. The orders represented a fundamental change to the parenting arrangements in place prior to the matter being brought before the trial judge. For a period spanning approximately 6 years, the child has lived with the mother and spent time with the father.

The basis for the trial judge’s order that the child live with the father was the risk of the child being emotionally abused while in the mother’s care. It was also found that the degree of risk justified the implementation of appropriate safeguards. The trial judge determined that having the child live with the father was in the child’s best interests since that arrangement amounted to an appropriate safeguard. The mother appealed the decision and the matter was brought before the Full Court.

Child Emotional Abuse: How Can It Best Be Managed?

The mother’s appeal was based upon two grounds. First, the trial judge had failed to consider four safeguards that would have rendered the risk acceptable:

  • the trial judge’s findings could have been referred to the Police and the Department of Child Safety;
  • The mother could have been ordered to undergo counselling;
  • The orders could have been made on an interim rather than a final basis; and
  • A family consultant could have been appointed to facilitate the mother’s compliance with the orders

Second, the mother submitted that the trial judge failed to make findings regarding how the change in residence might affect the child. Both grounds were rejected by the Full Court.

The first ground was rejected because of the lack of evidence to establish that the four options were a material considerations that the trial judge was bound to take into account. The second and fourth options were not the subject of any evidence led by the wife during the trial. Instead, they were brought to the trial judge’s attention during the mother’s closing submissions. The first and third options were addressed by the relevant expert during the trial. However, the expert did not express the view that they might constitute an appropriate safeguard against the risk identified by the father.

The second ground was rejected on the basis that the Full Court is not required to test the adequacy of the trial judge’s reasons through scrupulous examination of “each and every concern, view or opinion, tentative or robust, expressed by the trial judge in the course of evidence or submissions…” Adequacy of reasons is tested by reference to whether the trial judge’s reasoning is ascertainable and, if so, whether “…justice can be seen to have been done.” When the correct standard is applied, the Full Court concluded, it is apparent that the second ground is without merit.

Concluding Remarks

Rafferty is mainly about how an unacceptable risk of emotional abuse could be managed by appropriate safeguards. The mother’s failure to demonstrate that the risk could be managed by her proposal can be seen to have stemmed from two factors. First, it wasn’t at all clear how her proposals might have abated the risk. And second, she failed to marshal any evidence in support of her submission until closing submissions. This highlights the obvious point that success in parenting disputes is predicated upon a solid evidentiary foundation, not misguided submissions to the effect that the trial judge failed to adequately consider a seemingly tenuous case.

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