Family Court case: comparatives of violence

In the recent Full Court of the Family Court case of Nardello and Fillmore, the key issue was whether the Federal Magistrate had properly analysed the risk of family violence to the children from the father as opposed to the mother.

The case concerned the care of the parties two youngest children, who had been in the mother’s care after the parties separated. The Federal Magistrate ordered that they live with the father. The mother appealed.

The evidence of the mother’s violence included evidence from the Department of Child Safety and her admissions:

• the mother struck [S] twice on the leg with the metal pipe of a vacuum cleaner causing bruising and swelling of the leg;
• At the time the complaint was made of this incident, [S] told Departmental officers that she often “gets smacks” with the stick from her father. [S] said she was smacked about ten times a week (but didn’t specify by which parent);
• The Department made an assessment of substantiated physical abuse by the mother against [S];
• [S] was struck by the mother approximately five times with a metal stick on the bottom;
• The mother used metal pipes, a wooden spoon and a belt with a metal buckle to strike the children.

The family report writer recommended that the children live in the mother’s household on the basis that there were some protections for the children, including a ban on physical discipline, the father seeing the children regularly (so giving the mother respite), and parenting training.

The Full Court held that the Federal Magistrate’s analysis of the risk of violence in the father’s household was inadequate:

i) the Federal Magistrate says that he has consciously not made an order that neither party physically discipline the children because, given the issues that have been ventilated at trial, such an order is unnecessary and “both parties now know full well that such conduct is inappropriate” is quite inconsistent with the balance of the learned Magistrate’s assessment of risk in the mother’s household.
(ii) Secondly, that part of his judgment where he indicated that he rejected the family report writer’s recommendation as to where the children should live, because the writer had said that should only occur with appropriate safeguards, as to which the Federal Magistrate said the writer had given no explanation of safeguards, is erroneous. The Magistrate set out the writer’s evidence in his report in which the recommendation was made. However, in the very next paragraph, which was not quoted by the learned Magistrate, the writer had said:
Apart from the normal undertakings not to physically discipline the children, both parents may benefit from a parenting program in addition to – if resources allow – individual counseling on parenting. Moreover, in his examination in chief, then counsel for the ICL asked the report writer about the “safeguards” referred to in his report and then asked:
“Is there anything else that can be put in place that you think would help?”
The writer responded
“I would think that if the children are – if the younger children are in the care of their mother the most important aspect would be that the father is having continuing visits and time with the children, not only for the benefit of his relationship with them but also to relieve stress amongst the whole family and upon the mother.
(iii) While (save for the inconsistency referred to in the first point above) it may be that the Federal Magistrate adequately addressed the question of risk of violence in the care of the mother and while from time to time he mentioned evidence of abusive behaviour by the father, of the older children, the learned Magistrate did not attempt to make any real assessment of risk of violence in the father’s household, despite the writer’s opinion of that risk and ample evidence pointing to that as an issue.
For example, the father had no extended history of carrying the burdens of child rearing, but had still acted abusively towards V. In relation to that event involving V, leading to the husband abandoning the children late at night, the family report writer had said:
…He [the father] appears to accept that this was inappropriate, but I doubt that this will prevent the same thing from occurring again.
In addition, the evidence from the Department of Child Safety included a number of allegations against the father.

“We do not say that, properly weighed, a finding that risk of violence was less in the father’s household than in that of the mother might not have been open. Our conclusion is however, that the learned Magistrate’s assessment of comparative risk, in a case in which that was a critical factor, was inadequate.” (emphasis added)