Case: interim decision about violence

In Schafer and Becker, the mother sought to limit the amount of time that the father had with the children, based on her assertion that he was violent.

The most significant evidence that the mother had about the violence was that when the child E: “returns from time spent with his Father he is “out of control”, “violent”, “destructive” and “abusive”, and in particular he is violent and abusive towards his Mother and family members” and “the Father, in the presence of the Child E, “went berserk” screamed very aggressively, and was yelling and spitting, and was so angry at the Mother that the Mother says she was fearful for her safety”.

The mother sought to rely on police documents including the father’s criminal history.

Federal Magistrate Lucev ruled that on an interim basis the police documents were inadmissible because:

“The documents:
do not reveal that any family or domestic violence orders have been taken out;
do not reveal that there has been any violence in, or in relation to the Children, or that they have been exposed to any violence; and
reveal that the one matter which went to Court (involving the Father and the police), and upon which considerable emphasis was placed in the hearing, was dismissed with a costs order in favour of the Father.
In the circumstances, the bundle of often repetitious hearsay documents which reveal no actual or potential risk of exposure of the Children to violence, and which seek to potentially significantly prejudice the Father will not be admitted for the purposes of the interim application.”

The mother was ultimately unsuccessful on limiting the amount of time based on the issue of violence- there was simply not enough evidence.

An illustration perhaps of the need to ensure that affidavit material is extremely thorough, even at an interim stage, when relying on allegations of violence. Or put another way- plenty of assertion, not enough evidence.