Domestic Violence in Family Proceedings. In this important case the CA reviewed research and sets out the factors to be addressed when considering domestic violence and contact.
i) The Court should consider the conduct of both parties towards each other and towards the child, the effect of the violence upon the child and on the residential parent, and the motivation for the parent seeking contact, i.e. is it a desire to promote the best interests of the child or a means by which to continue violence, intimidation or harassment of the resident parent;
ii) On an application for interim contact, when the allegations of domestic violence await adjudication the Court should give particular consideration to the likely risk of harm (physical or emotional) if contact were granted or refused (any risk of harm to the child must be minimised and the safety of the resident parent as well as the child should be secured before, during and after any such contact).
iii) There was not, and should not be a presumption that on proof of domestic violence the offending parent had to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact but is one factor in the difficult and delicate balancing exercise of discretion to be undertaken by the Court.
iv) In cases of proved domestic violence the Court has to weigh the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors. The ability of the offending parent to recognise his/her past conduct, to be aware of the need to change and to make genuine efforts to do so would be likely to be an important consideration when performing that balancing exercise.
v) The rights of the child must prevail.