Family violence allegations

Family Violence Allegations and their treatment in Family Law Parenting Matters

Interim Parenting Orders – A Risk Assessment Exercise

Family violence allegations are often seen in contested child custody matters before the family courts. When a parenting matter comes before the Court on the first occasion, the Judge is often faced with a difficult scenario. Two parents who want the best for their children and want to spend as much time with them as possible at odds about what is best for the children. In this blog, our child custody lawyers Brisbane explain the approach of the family courts to family violence allegations at an interim hearing.

The family courts must use the limited information before them to make an interim Order that they consider to be in the best interest of the child, balancing the need to protect the children from harm and providing a meaningful ongoing relationship between the parents and children. Protecting the children from harm will always come as the priority. At the first appearance then before the Court in a child custody matter, the Order made will most often be conservative.

Contact our child custody lawyers Brisbane or child custody lawyers North Brisbane for a free initial phone consultation if you would like to know how any family violence allegations may effect your parenting matter.

If you would like more information right now, please read on…

In a recent case decided by Judge Altobelli in the Federal Circuit Court of Australia at Wollongong, Bayer & Bayer [2018] FCCA 2361 the first Court hearing of the matter was described as “fundamentally a risk-assessment exercise”.

This is because at the first hearing the position of the Judge is not to decide what is fact and what is not, but to consider the information before the court, including any allegations of a child being exposed to harm and balance the risks to the children with providing a meaningful relationship with the parents, together with making Orders that will provide greater certainty in the reliability of the evidence – this evidence will often be derived from an independent source.

In the case, the Mother had made family violence allegations against the Father, whom in turn mostly disputed the allegations. The allegations were somewhat supported by independent evidence and not fully disputed by the Father.

Judge Altobelli considered important points highlighted in a decision by the Full Court of the Family Court of Australia in the case of Saleh & Saleh [2016] FamCAFC 100, where that Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The points included consideration of both legislation and significant comparable cases as follows:

a. Section 60CC of the Family Law Act 1975 (Cth) “requires a Court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Judge Altobelli said that this requirement does not really depend on findings of family violence being made but focuses on risk, which can exist independently of disputed allegations.

b. Section 61DA of the Family Law Act 1975 (Cth) where its mandatory terms state: “the Court must apply a presumption” that it is in the best interests of a child for there to be an order for equal shared parental responsibility. The Court referred to  Section 61DA(3) of the Family Law Act 1975 (Cth) which provides that the presumption still applies “unless the Court considers that it would not be appropriate in the circumstances” for the presumption to be applied in making an interim order. The discretion provided for in Section 61DA(3) is not to be applied in a broad exclusionary manner, but only where limited evidence may make it difficult to apply the presumption or its rebuttal. It requires a cautious approach, especially in the context of s.60CG of the Family Law Act 1975 (Cth) which specifically requires the Court to consider the risk of family violence.

c. The Court in Saleh referred to the case of Goode, where the Full Court had warned “against inappropriately being drawn into matters of contentious fact, does not mean that merely because facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts”, as  stated in the case of Eaby & Speelman [2015] FamCAFC 104.

d. ” An acknowledgement that at an interim hearing, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible to simply ignore an assertion because its accuracy has been put in issue: SS & AH [2010] FamCAFC 13. This applies especially to family violence allegations”.

d.” There is no requirement for corroboration or objective support for an allegation of family violence. Family violence often takes place in private, in circumstances where no corroboration is available.

A reference to the civil standard of proof” (where evidence is considered “on balance of probabilities”) is not appropriate in relation to disputed family violence allegations in interim hearings.

His Honour came to a conclusion that “It is unwise to simply ignore family violence allegations and find that the presumption of equal shared parental responsibility applies.” This was significant because when a Court upholds the presumption of equal shared parental responsibility it must then go on to consider an equal shared care arrangement for the children.

In his reasons for judgement Judge Altobelli stated “The Court needs to be appropriately conservative.” And went on to Order that the Father have regular time with the children supervised by the Paternal Grandmother but left the ultimate decision regards parental responsibility open to the final hearing.  His Honour stated that “A Family Report or an Expert’s Report will help to assess whether there are other risks and provide much greater depth of information to guide future decision-making.”

Contact our office at LGM Family Law and speak to one of our experienced child custody lawyers Brisbane or child custody lawyers North Brisbane if you have concerns for your children’s well being in the care of your former partner, if family violence allegations have been made against you or if you need any assistance to resolve your child custody  issues. We offer free initial 15 minute phone consultations and have the experience to assist you to resolve your family law matter.