Interim hearing – the court considers untested domestic violence allegations
Recently, The Family Court heard an appeal from a mother following interim orders being made by the Federal Circuit Court in a parenting case that involved allegations of domestic violence.
Background
- There were three children, aged 3, 4 and 5 at the time of the first court hearing. The youngest child had significant health and developmental issues.
- The mother and father entered into a consent order one month prior to the interim hearing.
- The consent order provided that the children live with the mother and spend time with the father in the presence of their grandparent or aunt.
- The mother alleged that the father had committed domestic violence against her, in the presence of the children. There was no Protection Order (DVO) in place and the father denied the allegations.
At the first hearing, the court determined that the allegations of family violence were not made out and dismissed the requirement that the father’s time be supervised.
The trial judge incorrectly made a finding that the domestic violence allegations had not been proven to the “civil standard”, i.e. had not been proven on the ‘balance of probabilities’, to be true. Having made this finding, the judge determined that the need for supervision was not made out.
The Appeal Court found that the trial judge:
- had applied an incorrect test and did not have authority to make a finding of the domestic violence allegations, and
- should have, in considering the substantial allegations of abuse, taken more notice of the requirement to protect the children from harm.
The Orders made by the trial judge were set aside and the consent orders were reinstated until final hearing.
Domestic violence matters
Domestic violence matters often need to be treated with urgency.
To get specialised advice with one of our experienced family lawyers, contact our Brisbane office today.
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