Domestic Violence: Mother Loses Custody

domestic violence

The case of Corwin & Corwin [2018] FamCAFC 83 (26 April 2018) is an extremely complicated one involving domestic and emotional abuse. It was heard in the Federal Circuit Court in Brisbane in 2018.

The parties to the case, Mr and Ms Corwin, were former partners who began an on-off relationship in 1996. They married in May 1997 and have since had nine children together between 1997 and 2015. The parties separated conclusively in May 2016.

The parents’ relationship was always a very volatile one.

It was characterised by heavy conflict, including domestic violence, exacerbated by alcohol and substance abuse.

The couple’s oldest child, a 21-year-old woman known as Ms X, left home at the age of 18.

The five next oldest siblings quickly followed suit in 2016, moving in with the father and Ms X.

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 soon moved to live with the father. The mother made an application to the Magistrates Court for a recovery order, but this application was dismissed.

In November 2017, parenting orders were finalised concerning the five youngest children then aged two, three, five, ten and twelve.

These children are known in the court as Child E, F, G, H and I.

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.

For instance, the order specified that the three youngest children could only spend time with the mother under supervision in a contact centre.

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. In 1996 he was also charged with possession of drugs.

The mother also perpetrated domestic violence through physically and emotionally abusive behaviour towards Mr Corwin and their children.


Mother’s Appeal

In 2018, the mother appealed against the final parenting orders made in November 2017.

The mother now seeks orders that the three youngest children live with her and spend other weekends and half of school holiday periods with the father.

She asserts 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.

The expert, Ms S, compiled a report to submit to the court based on interviews she conducted with the six older children.

The mother contended that the children had been coached by their father to say negative things about her.

She claimed that the father had brainwashed the children and had alienated them from her.


Single Expert’s Report And Evidence

Mrs S conducted interviews with all but the three youngest children. In her report, she describes the mother’s emotional abuse of the children as “denigration, name calling and rejection.”

She noted that 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 mother 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.

The mother, in contrast, has not acknowledged her alcohol or mental health problems.

In the report, Ms S reasons that the psychosis and paranoia experienced by the father were likely related to substance abuse.

With the reduction of substance use, his mental health is now less likely to be exacerbated.

Before the parents’ separation in May 2016, neither the mother nor father were stable or emotionally available caregivers.

The mother and father were often arguing, drinking heavily or using cannabis in the bathroom.

However, the report noted that Child E and Child F, the oldest of the five children, expressed a strong wish to stay with their father.

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.

The children’s reports of ongoing emotional abuse from their mother and their estrangement from her have a plausible basis, according to the expert family report writer. In her oral evidence,

Ms S said that, based on their interviews including non-verbal communication, she did not have the impression that the children had been coached in the answers they gave.

The expert claims the mother consistently fails to acknowledge her problems or her role in the children’s emotional distress.

There is a continued risk of harm to Child G, Child H and Child I, the youngest three.

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. The nine siblings also have a strong bond together, according to Ms S, and it would be better for them to stay together.


Dismissal of mother’s appeal

The mother’s argument that the trial judge relied too heavily on the expert report was not sufficient. A judge is entitled to rely upon the evidence of a single expert.

The mother’s claim that her drinking was confined to an occasional Kahlua and milk, and she never perpetrated domestic violence by physically or emotionally abusing her children, was at odds with other evidence before the court. Her claim that the father coaxed and manipulated the children to say bad things about her to the expert was also inconsistent with other evidence before the court.

Further, the mother argued that the he judge erred in principle in his evaluation of the children’s best interests under section 60CC of the Family Law Act 1975. 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.

The mother also argued that she was denied procedural fairness in not being permitted enough time to speak. A review of the transcript from the trial showed that this was clearly not the case.

The appeal judge found that the mother identified no real basis for challenging the trial judge’s approach to the evidence of Ms S. As there was no merit in any of the grounds of appeal, the appeal was dismissed.

This case is an excellent example of how the court can protect children subject to domestic violence perpetrated by mothers.

domestic violence


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