separate or divorce Brisbane divorce lawyers

False allegations of domestic or family violence

Are you facing false allegations of domestic violence or family violence?

When parents separate, they are naturally concerned about where their children will live and when they will see their children.

Unfortunately, sometimes one parent may make false allegations of domestic violence or family violence against the other parent in an effort to limit or entirely stop time for that other parent to spend with their children.

The Court when deciding whether to make a parenting order must consider the best interests of a child as the paramount consideration (s.60CA Family Law Act 1975 (Cth))

In determining what is in the best interests of a child, the Court must consider what are known as the primary considerations as well as additional considerations under s. 60CC of the Family Law Act 1975 (Cth).

The primary considerations when a Court is determining what Order should be made in the “best Interest of the child” are:

(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Incidents involving domestic violence or family violence are of real concern for the Court.

In applying the primary considerations to determine what is in a child’s best interests, the Court must give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.

A meaningful relationship “is one which is important, significant and valuable to the child”. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.

Research shows that harm caused from domestic violence or family violence, whether suffered directly or by being exposed to violence in the household is detrimental to the welfare of children in both early and later life. The harm can take multiple forms including physical, emotional and psychological harm.

In the recent trial judgement delivered by Judge Obradovic in the Federal Circuit Court of Australia at Parramatta in Obeid & Saab [2018] FCCA 2198, Her Honour repeatedly noted significant inconsistencies in the mother’s evidence and finds her claims of family violence difficult to accept.

It was found that the mother only raised alleged incidents relating to the father’s inappropriate behaviour towards the child with a Hospital and the Department of Family and Community Services after he had sought to spend overnight time with the child.

The father had made numerous reasonable requests of the mother for information relating to the child to which the mother refused to respond. In evidence the mother claimed that she was not communicating with the father as she was frightened of him, that he was controlling and abusive and that this is the reason why she did not co-operate with him. The Court found that the mother’s evidence did not support her claim.

After careful consideration of the evidence, the Court found that the mother did not establish to the requisite standard the allegations of violence she made against the father.

However, the Court also gave real weight to what is known as the “attachment theory” developed by psychologists. In this case, the mother had relocated with the child a significant distance from the father during the child’s infancy pursuant to an agreement between the parties. This made a close attachment between the father and child more difficult. The Court found that the child’s primary attachment was with the mother and to disrupt that attachment by ordering that the child live primarily with the father (as he had sought) would likely be more detrimental to the child’s development.

The Court Ordered that the parties share responsibility for making major decisions for the child, and that the child live with the mother 9 nights per fortnight and with the father for 5 nights per fortnight.

If you are the parent who is facing false allegations of domestic violence or family violence

If you find yourself in a situation where false allegations of domestic violence or family violence have been made in child-related proceedings, it is recommended you immediately obtain legal advice.

Contact us if you have family law issues concerning parenting arrangements for your children. Our family lawyers Brisbane have the experience to assist you to resolve these issues as well as to resolve property settlement matters for you.