The recent decision of the Full Court of the Family Court in the matter of Salah states that the trial Judge erred in failing to consider allegations of family violence by the father against the mother when making interim parenting orders.
The mother filed an Application for parenting orders in which she alleged family violence by the father. Shortly thereafter, consent orders were obtained by the mother and the father which provided that the children, who were 5, 4 and 3 years of age, would spend supervised time with the father. During a contested hearing a month later, the Judge dismissed the consent order and substituted it for an order that the father spend unsupervised time with the children. Prior to making the substituted order, the judge observed that he could not make findings of fact about the allegations of family violence and he therefore gave no consideration to the allegations when making the substituted Order.
The mother appealed the decision in the Full Court of the Family Court.
The Family Court said, among other things:
• Section 60CG of the Family Law Act requires a Court, when considering a parenting Order, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence.
• It does not mean that, merely because the allegation of family violence is disputed by the father, the mother’s evidence is to be disregarded and the case determined solely by reference to the agreed facts.
• His Honour was required to do more than merely note the allegations and not to “simply ignore an assertion because its accuracy has been put in issue”.
The Full Court of the Family Court allowed the appeal, set aside the order for unsupervised time between the father and the children and revived the order for supervised time, pending the rehearing of the case.
