In the recent case of Corwin & Corwin  FamCA (26 April 2018), the Federal Circuit Court heard the mother’s appeal involving allegations of domestic violence, heavy marital conflict, emotional abuse and substance abuse. The mother lost her appeal against orders that gave the father of her children sole parental responsibility.
The former partners, known as Mr and Ms Corwin, began an on-again, off-again relationship in 1996 and married in May 1997. They have nine children together born between 1997 and 2015. Mr and Ms Corwin separated definitively in May 2016, and the parenting orders, made in November 2017, concerned the five youngest children, then aged 12, 10, 5, 3 and 2 years old. These children are known in the court as Child E, Child F, Child G, Child H and Child I.
The parents’ relationship was always a very volatile one. It was characterised by heavy conflict, including domestic, that was exacerbated by alcohol and substance abuse. Before their final separation in 2016, Mr and Ms Corwin had other periods of separation during their marriage.
The couple’s oldest child, a 21-year-old woman known as Ms X, left home at the age of 18. The three next oldest siblings quickly followed suit in 2016, all moving in with the father and Ms X. Child E and Child F also moved from their mother’s home to their father’s after the 2016 separation.
In early 2017, Ms X and her aunt, the mother’s sister, became very concerned about Ms Corwin’s capacity to care for the three youngest children. Child G, Child H and Child I. These children were also moved to live with the father. The mother made an application to the Magistrates Court for a recovery order, but this application was dismissed.
The Magistrates Court made orders that placed all the of the children in the care of the father. The father has a history of domestic violence, which the Federal Circuit Court judge at the final parenting orders trial described as “horrific”. He committed acts of domestic violence in the entirety of his relationship with Ms Corwin. Additionally, in 1996 he was charged with possession of drugs.
Further, the mother also perpetrated domestic violence through physically and emotionally abusive behaviour towards Mr Corwin and their children.
The father now has a girlfriend, known as Ms T. She has three daughters.
Ms Corwin appealed against the final parenting orders made in November 2017. These parenting orders gave sole parental responsibility of the five youngest children to the father. The children were to spend time and communicate with the mother in accordance with the orders.
The three youngest children’s time with the mother was to be spent under supervision in a contact centre. The mother argued that the three youngest children live with her and spend other weekends and half of school holiday periods with the father.
She asserted that the trial judge made errors of fact in relying too strongly on the reports and oral evidence of the single expert family report writer, Ms S.
She also claimed that due to Mr Corwin’s history of domestic violence, the judge erred in principle in his evaluation of the children’s best interests under section 60CC of the Family Law Act 1975.
The father opposed this appeal.
Single Expert’s Report And Evidence
The expert, Ms S, compiled a report to submit to the court based on interviews she conducted with all but the three youngest children.The mother contended that the children had been coached by their father to say negative things about her.
Ms S had conducted separate interviews with the six older children Ms X, Mr Y, Child D, Child C, Child E and Child F. Children D, C, E and F are all high school aged while Ms X and Mr Y are now adults. According to Ms X, she began essentially raising her siblings from the age of 11 or 12.Their parents were often arguing, drinking heavily or using cannabis in the bathroom.Child E and Child F, who chose to move in with their father and older siblings in 2016, did not feel safe in their mother’s home.
The children consistently said that the mother was verbally and physically abusive.The expert described the mother’s emotional abuse of the children as “denigration, name calling and rejection.” Ms Corwin said hurtful and accusatory things when she was intoxicated as well as when sober, and the expert said this had a very significant emotional impact on the children.
Physical abuse by the mother included breaking a bucket over Ms X’s head and slapping her and causing a black eye. She beat Child E with a hairbrush and threw objects, including at one point a knife, at the children. Child C described herself as having been “disowned” by Ms Corwin. Child C was kicked out of home at the age of 15. Child D left the mother’s house on a night in September 2016 after calling her aunt to come and collect her.
The children also described their father’s overconsumption of alcohol and his previous domestic violence. However, they consistently reported that Mr Corwin had made significant positive changes in his behaviour since 2016. He has acknowledged his problems and has reduced his alcohol consumption, quit smoking and stopped using illegal drugs.
Ms S reasons that the psychosis and paranoia experienced by Mr Corwin were likely to be related to substance use. His mental health is now less likely to be exacerbated. The mother, in contrast, has not acknowledged her alcohol or mental health problems.
Before the parents’ separation in May 2016, therefore, neither the children’s mother nor father was a stable or emotionally available caregiver. The children’s reports of ongoing emotional abuse from their mother and their estrangement from her had a plausible basis, the expert family report writer stated.
Ms S determined the children’s visible distress when talking about their mother to be genuine and not the result of the father deliberately alienating them from her. Child E and Child F, the oldest of the five children whom the parenting orders concern, expressed a strong wish to stay with their father and it would, therefore, be counterproductive for them to spend time with their mother.
There was a continued risk of harm to Child G, Child H and Child I, the youngest three. The nine siblings have a strong bond together, according to Ms S, and it would be better for them to stay together. The judge accepted the expert’s opinion.
Basing her judgement primarily on the evidence of Ms S, the trial judge determined that equal parental responsibility was not in the children’s best interests as the mother and father were unable to communicate effectively and would not agree on any aspect of parenting.
Conferring sole parental responsibility to the father carried the least risk of emotional harm to the children.
Dismissal of Grounds of Appeal
In her appeal, the mother contended that the trial judge had erred in her finding of fact. Ms Corwin stated that the father had brainwashed the children and had alienated them from her. Her drinking, she said, was confined to an occasional Kahlua and milk, and she said she had never perpetrated domestic violence by physically or emotionally abusing the children.
This, however, was at odds with other evidence before the court. Contrary to Child D’s assertion that she had kicked her out of the house, the mother said Child D had left the house of her own volition.
Mr Corwin insisted that the single expert family report writer was biased and the children were coached by their father in what to say during their interviews with Ms S. In her oral evidence, Ms S said that based on their interviews including non-verbal communications, she did not have the impression that the children had been coached in the answers they gave.
The mother consistently failed to acknowledge her problems or her role in the children’s emotional distress. There was sufficient evidence before the court to make the findings of fact. The mother also believed she was denied procedural fairness was not being permitted enough time to speak. A review of the transcript from the trial showed that this was clearly not the case.
Finally, the mother argued that the trial judge had made an error of principle regarding the best interests of the children. Had the father not altered his pattern of behaviour, then sole parental responsibility in his favour would not have been in the children’s best interests.
However, there was corroborative evidence of positive changes in the father’s behaviour, particularly as the older children had chosen to move in with him. The children’s reports of his changed behaviour were consistent. A judge is entitled to rely upon the evidence of a single expert. The mother identified no real basis for challenging the trial judge’s approach to the evidence of Ms. S.
The appeal judge determined that there was no merit in any of the grounds of appeal. The appeal was dismissed.