How the Family Law Court Deals with Abuse Allegations

How the Family Law Court Deals with Abuse Allegations

In this video, Award-Winning Surrogacy Lawyer and Accredited Family Law Specialist, Stephen Page addresses a challenging issue in family law – the handling of abuse allegations by the family court.

 

Transcript

G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers. An area that I have long dealt with and is a really tough area is how the Family Court deals with abuse allegations, and I say the Family Court, but that’s the common name for it.

But the proper name for the court these days is the Federal Circuit and Family Court of Australia, and in Western Australia, the Family Court of Western Australia. This video, I’m doing a series of videos about abuse allegations, but this video is when the obvious happens, that an allegation is made and the police get involved.

And as a result of the police being involved, the alleged perpetrator is convicted of the abuse allegations. So in the lead up to that period, let’s say the police have become involved and they have charged the man, because typically it’s a man, not always, but the man and let’s say his dad, with sexual abuse of his children.

How does the court deal with the matter whilst those charges are outstanding? Well, of course, he is entitled to the presumption of innocence. He cannot or should not put before the court evidence that may tend to incriminate him, so he’s got to be very careful about how he puts it.

There is the ability under the Commonwealth Evidence Act, if he has to give evidence, that he can be granted a certificate, so he can give evidence freely. But that’s when there’s a trial, when he gives testimony at trial, not in the the pre-trial material, namely the affidavit material, his sworn statements.

So you got to be very careful about that. But in that meantime, between now, when he’s charged and when he’s convicted, his legal position has to be protected. Namely, he’s entitled to have his day in court in the criminal proceedings.

The Family Court proceedings will typically be put off until the criminal proceedings are concluded, because otherwise, his liberty could be jeopardised by admissions he makes in the Family Court proceedings. It may prejudice the administration of justice in those criminal proceedings. They should get priority.

But if he’s convicted, how will the court deal with it? Well, because the court in that case has, I’d say it’s the Supreme Court or the District Court has found the man guilty, whether he’s pleaded guilty or not guilty, beyond reasonable doubt.

Then there is no doubt that he has committed those offences, and the Family Court can therefore find that because the matter has been proven to that criminal standard, in other words, beyond reasonable doubt, that therefore the child or children needs to be protected from that man accordingly.

Of course, by that point, the man may be serving a term of imprisonment or not. But that’s the highest standard, and to give an example, many years ago, I was acting for a mum, and she was a big woman. Her husband was considerably smaller, and both of their children had special needs.

She first came to see me because the children had been taken away by state authorities, and how did that happen? Well, one day, he came home, and the both of them worked, and typically, he would drive the children to and from their school.

And he came home and said, Darling, there’s a bit of a problem because police are going to come here soon and arrest me, and she thought, Oh, this is a bit of an odd joke and stop joking. Why are you joking about that? That’s not funny, and he said, No, I’m not joking.

Because in fact, what I’ve done is I’ve sexually interfered with her children. Mum knew that that hadn’t happened at home because she was a vigilant mother, and then he said, Look, I’m not I’m not joking about that either. When I’ve been driving the children to and from school, I’ve done it in the car, done it in the truck.

At which point, the penny dropped for Mum, and enraged, she picked up a chair and threw it at him with all her might. Luckily, it missed and then she went to pick up another, and she was about to lift the table and throw it in.

She was a strong woman, at which point, luckily for him and his life, the police arrived and they arrested him. Well, State authorities, of course, thought that Mum was in collusion with Dad, and sadly, those cases exist where one parent covers up for the other. So the children were taken into state care.

Court proceedings started in the Family Court. My client, from recollection, commenced those proceedings so that she would have what we now call sole parental responsibility and we were able to convince the Department that my client had acted properly.

Ultimately, the children were given back, and everything was then put on hold. This man was in custody while the court proceeding played out and believe it or not, he wanted the children to spend time with him despite his admissions to police. Well, ultimately, he pleaded guilty, and he was sent to jail.

It’s no surprise then that the Family Court, went and dealt with that matter, dealt with it on the basis that the child sexual abuse had been proven beyond reasonable doubt.

The children should be nowhere near their father, that my client ended up with sole parental responsibility, and the children lived with her and as far as she was concerned, they should never, ever see their father again for the reason of their self-protection, given that gross breach or trust, those awful evil acts that he had engaged in.

So this is the first video talking about the Family Court and abuse. This one, as I said, talks about where the matter has been proved beyond reasonable doubt. The next series of videos talk about when that hasn’t happened. So please watch those videos.

Thank you.

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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board