Allegations of domestic and family violence

Many parenting matters determined by consent after proceedings are initiated, or by judicial determination, involve allegations of domestic and family violence and/or child abuse.

Although there is a widespread belief in the community that mothers frequently fabricate allegations to influence family law proceedings, the research to date indicates that it is more likely that they will be reluctant to raise allegations for fear of having their motives questioned, and that the making of false allegations is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimisation of abuse by perpetrators. A parent who feels pressure to support the violent parent’s parenting role may feel discouraged from raising allegations of domestic and family violence, or may attempt family dispute resolution despite being in circumstances where they are experiencing threats, fear or abuse. A parent may be even less likely to disclose domestic and family violence where they are self-represented and unfamiliar with the relevant provisions of the Family Law Act 1975 (Cth) (FLA) or the Family Court Act 1997 (WA) (FCA), or their legal representative has not made sufficient enquiries regarding allegations of violence.

Allegations that are accompanied by evidence of strong probative weight may influence the nature of court-based parenting outcomes, for example the court may decide to order no contact, or that contact with the violent parent be supervised or restricted to daytime only. However, the FLA and FCA do not require independent verification or corroboration of allegations of domestic and family violence (such as police or medical reports) for the court to be satisfied that it has occurred. As the Full Court of the Family Court of Australia said in Amador & Amador ([2009] FAMCAFC 196 per May, Coleman and Le Poer Trench JJ:

Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. (at [79])

The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. (at [81])

When corroboration evidence is available but is not called, adverse inferences might appropriately be drawn.