Keywords: Children – Treatment of untested allegations of family violence at interim hearing – Allegations should not be ignored because they are contested – Mother successfully appeals interim order discharging earlier order for supervision of father’s time – Trial judge also did not consider father’s consent to prior order
Allegations of family violence are increasingly common in parenting proceedings. And, these allegations of family violence are often in dispute, making it challenging for courts to make decisions on the matter without the benefit of a trial. In interim proceedings, courts tend to proceed with caution where any safety concerns for the children have been raised.
In the recent case of Salah & Salah  FamCAFC 100 (17 June 2016) the Full Court of the Family Court (May, Ainslie-Wallace and Cronin JJ) heard the mother’s appeal against a Federal Circuit Court decision in a matter involving allegations of family violence. There were three children concerned, aged five, four and three, the youngest of whom suffered from epilepsy, seizures and a developmental delay. The mother had been the primary carer of the children since separating from the father.
Shortly after the mother had filed her application for parenting orders, which contained allegations of family violence by the father, an order was made by consent that “either one of the children’s paternal grandparents and/or the paternal aunt … [would] be present during the father’s time with the children …”
Subsequently, at a contested interim hearing a few weeks later in the Federal Circuit Court, Dunkley J discharged the consent orders and instead made an order that the father’s time with the children be unsupervised. The mother appealed the decision, on the grounds that Dunkley J had not addressed the family violence issues correctly, and should also have had regard to the consent orders agreed to by both parties.
The Full Court held that pursuant to section 60CG of the Family Law Act 1975 (Cth) (“the Act”) when the Court is preparing to draft parenting orders, it is obliged to consider that any orders made will not place a person at risk of family violence. The Full Court of the Family Court was of the view that had Dunkley J referred to section 61DA(3) that pertains to the presumption of equal shared parental responsibility as applying at interim hearings unless the court considers that the presumption is not appropriate in the circumstances, His Honour would have taken a more cautious approach in making interim orders.
Notwithstanding the fact that the allegations of family violence were both disputed and untested, His Honour would have, as a precautionary measure, applied section 60CG.
In interim proceedings, courts are often presented with conflicting facts, the veracity of which that cannot be ascertained prior to a trial. The Full Court acknowledged that Dunkley J did consider this and he also referred to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. Nevertheless, they stated that findings in interim proceedings “should be couched with great circumspection”.
They referred to an earlier decision in SS & AH  FamCAFC 13, where the majority of the Full Court had said: “… 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”. Dunkley J had been faced with a similar dilemma in the present case. When presented with quite serious allegations of family violence, his Honour was obliged to do more than ‘merely note the contention’ and should not ‘simply ignore an assertion because its accuracy had been put in issue’.
The problem in this case, is that although Dunkley J rightly noted that he could not, at that stage of the proceedings, make findings on the disputed allegations, he then went on to say that under those circumstances, the presumption for equal shared parental responsibility nevertheless still applied.
Dunkley J in making this inference had found that there was ‘no other evidence’ available to him, implying that there needed to be corroboration of the mother’s allegations, and therefore the presumption was not rebutted. The Full Court felt this was an error, as family violence often occurs in the home, in private, and without witnesses. Furthermore, Dinkley J had also erred when he had stated that findings could not be made ‘as to whether either party perpetrated family violence at an interim stage given conflicted evidence’ and therefore he concluded that “the civil standard of proof is met by neither”.
The Full Court regarded this conclusion as incorrect, and inappropriate in circumstances where disputed allegations of serious family violence are put forward at interim hearings. His Honour erred, by neglecting to take note of allegations that he had previously considered ‘significant’, and by refusing to consider them at interim proceedings.
His Honour should have considered section 61DA(3) which sets out how the Court should approach the presumption of equal parental responsibility in interim orders, and that the presumption applies unless the Court believes it would be inappropriate. The Full Court also felt that by discharging the consent orders, Dinkley J had effectively found that the allegations of family violence had not been proven at that stage, and that the risk of family violence did not need to be taken into account at the interim hearing. The Full Court said that His Honour had ‘ignored the allegations of family violence. To do so was to perpetuate the error which has already been established”.
Accordingly, the appeal was allowed, and the orders were set aside.