Issues and allegations involving family violence towards parents and children or which have been witnessed by children are very often made in parenting cases. Often, these allegations are in dispute between the parties or there have been no criminal proceedings around the allegations and therefore the evidence has not been “tested” in open court. This makes it very difficult for the family law Court to make findings. However, when making interim Orders, the Court will be cautious and give the benefit of the doubt to the person or persons seeking protection, especially if there are concerns regarding for the safety of children.

One of the most recent Full Court decisions involving allegations of family violence is the case of  Salah& Salah [2016] FamCAFC 100 where the Mother successfully appealed a Federal Circuit Court decision where the trial Judge found that “Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence.”.  Base on the fact that the allegations had not been tested in court, Orders were made for equal shared parental responsibility of the children and for the father to have unsupervised time with the children even though there had been a previous Consent Order agreed to by the parties for the father’s time with the children to be supervised.

The Full Court decided this was not the correct test to apply.  S 61DA (3) of the  Family Law Act provides how the Court should approach interim orders for parental responsibility. The presumption of equal shared parental responsibility should be applied unless the Court believes it would not be appropriate. Section 60CG states that any order made by the Court, should not expose a person to the unacceptable risk of family violence. This is especially important where children are involved.

In the Full Court decision of  SS v AH [2010] FamCAFC 13, the majority decision in that case stated that the “the 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 when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue”.

The Full Court in Salah also rejected as an error, the trial Judge’s statement that where there was “no other evidence” of family violence orders for equal shared parental responsibility must be made.  The Full court was of the view that “Family violence often takes place in private circumstances where no corroboration is available.”  and therefore, allegations of family violence cannot be ignored if there is no corroborating evidence, or the allegations cannot be tested in court at that time.

Do you need help?

If you have recently separated or are considering separating in circumstances where there are allegations of family violence, and there are children of the relationship, our experienced Family Law team at Eales & Mackenzie Lawyers can help you understand these areas and provide you with advice to help you achieve the best possible outcome for you and your children with a minimum of disruption and expense.

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