Is withholding a child domestic violence?

Sadly, it is often the case that following separation, children are the victim of conflict between their parents. Sometimes children can end up being the rope in a tug of war between the parents. This kind of behaviour by parents post separation, is harmful to a child’s emotional wellbeing. When conflict between parents arises, we commonly see a parent withhold the children from the other parent, usually under the guise of the children being at risk of harm, or otherwise, under threat until the other parent agrees to sign consent orders reflecting the care arrangements that the withholding parent wants. We are often asked the question, is withholding a child domestic violence? Read on to find out.

What is domestic violence?

Domestic Violence includes Physical or Sexual abuse, verbal abuse, emotional or psychological abuse, financial abuse and conduct that is threatening, intimidating, coercive, dominating, or controlling.

Importantly, domestic violence includes a wide range of coercive and controlling behaviours that causes a person to fear for their safety and wellbeing.

Examples of Domestic violence include:

• Causing physical injury to a person or threatening to do so;
• Forcing a person to engage in sexual activity;
• Depriving them of their liberty;
• Stalking or unlawfully monitoring that person is conduct that is also considered to be domestic violence
• Verbally abusing a person by yelling at them and calling them names;
• Threatening to commit suicide;
• Controlling a person’s use of money;
• Telling a person where they are allowed to go, what they are allowed to do, who they are allowed to see and when they must be home;
• Gaslighting e.g. making a person feel like they are crazy or that they are the perpetrator of domestic violence (e.g. where there is reactive abuse).

Is withholding a child domestic violence?

In Carter & Wilson, the Court was required to determine on appeal the question: is withholding a child domestic violence?

At the original hearing, the only issue at the Trial was in relation to parental responsibility. The Father sought equal shared parental responsibility. The Mother sought sole parental responsibility, with support from the Family Consultant and the Independent Children’s Lawyer.

The Trial Judge made findings that:

• The Mother had perpetuated coercive and controlling behaviour by limiting the child’s time with the Father and insisting that such time be supervised;
• The Father had perpetuated domestic violence by assaulting the Mother on at least one occasion and also towards his child.

The admission by the Father that he had perpetuated violence against the mother was relevant to the primary judge’s determination that the presumption of equal shared parental responsibility did not apply in this case.

The more controversial conclusion was the finding by the Judge that the Mother’s  behaviour in limiting the time the child Y spent with the Father, was also domestic violence as set out in section 4AB of the Family Law Act.

In conclusion, the primary judge determined that although the presumption of equal shared parental responsibility did not apply, it was in the child’s best interests for an order to be made that the parties have equal shared parental responsibility in relation to the long term issues affecting the child.

The Mother appealed on various grounds, one of which was that the Trial Judge made an error by characterising the Mother’s actions in withholding the child as family violence.

The appeal court held as follows:

• The Mother’s conduct in limiting the child’s time with the Father could fall within the definition of family violence, however, it does not automatically fall within that category;
• The conduct must be considered in context to determine whether in the circumstances of the case, the conduct is family violence;
• Conduct which has a strong focus on the promotion of the welfare of children and protecting them from violence cannot reasonably ground a finding of family violence;
• The Trial Judge in this matter did not include any analysis of the evidence or findings about the respects in which he was satisfied that the Mother’s behaviour in this case exceeded legitimate parental control;
• There was no finding by the primary judge that the mother mislead the court at the interim hearings, withheld any significant information nor made claims that transpired to be false;
• There was no finding that the Mother was disingenuous in her concerns about how the Father might treat the child (unlike the findings in Martin & Payne [2017] FamCA 1041 at 87 – 92);
• It cannot  be that in every case that a parent who does not allow time between a child and the other parent is engaging in family violence. Findings of this nature must be contexualised in the circumstances of the case;
• In this case, relevant context included that the Mother had herself been subject to actual physical violence by the Father and the Father acknowledged he had said some ‘pretty awful things’ to the Mother after the child was born. It also included the Mother’s concern at the manner in which the father had physically mistreated the child Y. Most relevantly, context included that after 30.1.19 parenting orders were in place and the Mother complied with them.
• “To characterise the uncontextualised behaviour of the Mother in this case 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.” 
• Held: The primary judge was in error by characterising the mother’s actions in withholding the child as family violence in the absence of contextualising the Mother’s behaviour and without giving express consideration to the circumstances in which the mother’s behaviour occurred, including most relevantly, the mother’s concern for the welfare of the child.
• Nonetheless, the original decision of the Judge was upheld as the Appeal court determined that there was no error in the primary judge’s reasons which support his conclusion that an order for shared parental responsibility was in the child’s best interests.

Want more information?

If you are seeking more information, check out the following links:

1. Child Custody
2. Domestic Violence Lawyers; 
3. DVOs – Do’s and Don’ts when applying for a DVO to succeed
4. Family violence information sheet
5. Family Violence: get help and support
6. How to divorce a narcissist.

Click here to print an Application for a Protection Order.

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