In an interim hearing, factual disputes concerning family violence may warrant greater weight being placed upon the need to protect a child from harm

Introduction

In Ridley & Radford [2016] FCCA 3383, the Federal Circuit Court of Australia heard a father’s application for a recovery order relating to his 6 year old child.  The application was filed five days after the mother had unilaterally relocated from Brisbane to northern Queensland.  Parenting orders were made in 2014.  The orders provided that the child live the mother and spend time with the father one night each week and alternating weekends.

In response to the father’s interim application, the mother applied for a variation of the existing orders.  The variation included an order that the mother have sole parental responsibility and that the father have no contact or communication with the child.  These orders were sought on the basis of an assessment issued by the Department of Communities, Child Safety and Disability Services (“the Department”).  The father alleged that the recommendations were part of the conspiracy between the Department and the mother to justify her re-location to northern Queensland.

The Court’s Decision

The court dismissed the father’s recovery application and ordered that both the child live with the mother and she have sole parental responsibility.  Its decision to prevent the father from spending time or communicating with the child was predicated upon the need to protect the child from harm.  In particular, the trial judge held that greater weight should be placed on the risk of harm to the child in light of the court’s inability to resolve the relevant factual dispute.  The dispute in question related to the parties’ conflicting allegations concerning family violence.

Both the mother and the Independent Children’s Lawyer submitted that greater weight should be accorded to the need to protect the child from harm in view of the allegations of family violence.  This claim was supported by the findings who the department who recommended that the child was in need of protection.
The Department requested that both the mother and child attend an interview in response to a complaint it had received regarding family violence.  Upon conducting the interview, the Department concluded that the child should cease contact with the father.  The Department determined that the child was in need of protection and that the mother could satisfy this need.

The day after the interview was conducted, a Child Safety officer and a police officer attended the father’s home, but to no avail.  So, the Department contacted the father by telephone in order to arrange an interview.  The father declined.  The Department explained to the father that if the he sought to spend unsupervised time with the child, they would act accordingly under the Care and Protection Act (Qld) 1999.  Additionally, the Department notified the child’s school of its concerns about the child’s safety.

Approximately two weeks’ after the Department’s failed attempt to interview the father, the mother received a letter from the Department outlining its concerns about the child being both subjected, and exposed, to domestic violence.  The violence to which the child was exposed involved the father pushing, hitting, attempting to strangle and verbally abusing the father’s partner in front of the child.  The violence that the child was subjected to involved the father hitting the child with a wooden spoon on various parts of his body.  According to the Department, these acts of violence had affected both the child and the father’s partner in a way that would cause them to hide from the father in order to avoid further violent attacks.

The father, on the other hand, denied the allegations of family violence.  His denial was predicated upon an allegation that both the wife and the Department had conspired to frame the him.  He alleged that the mother needed to justify leaving for northern Queensland.  So, she enlisted the help of the Department to fabricate claims of family violence perpetrated by the father.  The father alleged that the department was prepared to help the mother since she was one its former employees.

The mother denied the husband’s allegation, citing evidence of violent communications sent from the father.  Moreover, the mother denied having lodged the initial complaint to the Department about the father’s violent behaviour.

Having heard submissions from both parties, the court determined that the father was justifiably concerned about the prospect of the mother re-locating to northern Queensland.  This concern was underpinned by the fact that relocating would deprive the child of the benefit of developing a meaningful relationship with the father.  And this, in turn, could seriously affect the emotional well-being of the child.

However, given the court’s inability to resolve the parties’ factual dispute, it held that it was bound to accord greater weight to the need to protect the child from harm.  Accordingly, the father’s recovery application was dismissed and the father was prevented from spending time or communicating with the child.

In addition, the court ordered that the mother should have sole parental responsibility in relation to the child.  This order reflected the court’s finding that the parties’ ability to effectively communicate major long term issues affecting the child was seriously compromised.

Concluding Remarks

Ridley & Radford’s significance consists in the guidance it provides with respect to the weight accorded to competing allegations in the context of an interim hearing.  Interim hearings present unique challenges to the court given the court’s limited ability to test the evidence led by the parties.  Under these circumstances, the court’s capacity to resolve factual disputes can be very limited.  This was the challenge that the court in Ridley & Radford was faced with.  In responding to that challenge, the court decided that it was best to err on the side of caution, according greater weight to the mother’s allegations of family violence levelled against the father.