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How are Disputed and Untested Allegations of Family Violence treated in Interim Parenting Proceedings?

Allegations of family violence are unfortunately all too common in parenting proceedings. In circumstances where allegations of family violence are in dispute (as they often are) it can be difficult for the Court to make findings without being able to test these allegations at trial. However, when making interim Orders, the Court will err on the side of caution if there are concerns regarding the safety of the child or children.

In the recent Full Court case of Salah& Salah [2016] FamCAFC 100, where allegations of family violence were made, the Mother successfully appealed a Federal Circuit Court decision where it was found that “Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither”.  Orders were subsequently made for equal shared parental responsibility of the children and for the father’s time with the children to be unsupervised. Unsupervised time was ordered, despite a previous Consent Order being entered into by the parties for the father’s time with the children to be supervised.

The Full Court said that this was the incorrect test to apply.  S 61DA (3) of the  Family Law Act sets out how the Court should approach interim orders in relation to parental responsibility and that the presumption of equal shared parental responsibility applies unless the Court believes it would not be appropriate. Section 60CG requires that any order made by the Court does not expose a person to an unacceptable risk of family violence.

Reference was also made to the full court case of SS v AH [2010] FamCAFC 13 where majority said 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 also rejected the trial Judge’s comment that in circumstances where there was “no other evidence” of family violence that orders for equal shared parental responsibility must be made.  The Full Court said this was an error as “Family violence often takes place in private circumstances where no corroboration is available.”  Allegations of family violence cannot simply be ignored if there is no corroborating evidence, or the allegations cannot be tested.

 

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