The few parenting matters that are unable to be resolved without the assistance of the Court or otherwise need urgent consideration by the Court will always involve at least two competing narratives about what has happened during and after the relationship.
Agreed facts are a rarity in family law matters so the question then becomes how does the Court resolve these differences in the facts of the case. The short answer is the judicial officer examines all of the evidence including the parties’ affidavits, affidavits from witnesses, single experts, subpoena material and whatever else the parties have put before the Court. The Court will test that evidence by way of cross-examination before making a determination as to those factual disputes. Such decisions are called “findings of fact”.
Ideally, the Court will have all the evidence it needs and all the time it needs to test that evidence before making a decision. However, often parties cannot wait for a matter to be listed for a trial/final hearing and consequently, an interim hearing is required.
Interim Hearings
Interim hearings are an abridged shortened form of hearing where cross-examination is prohibited unless there are special circumstances and are limited to 2 hours. Since there is no cross-examination, the Court is very cautious about making findings of fact about disputed narratives and as such there is substantial case law about what a Judicial officer can do in those circumstances.
The Court in early cases such as Goode v Goode [2006] FamCA 1346, held that where the Court cannot making findings of fact it should not be drawn into issues relating of fact or matters relating to the merits of substantive case. This has led to the Court grappling with cases where allegations of family violence or child abuse have been made by one parent but denied by the other.
The law was revisited in SS & AH [2010] FamCAFC 13 where the Court said, that findings at interim hearings should done with great circumspection/caution, with the Court accepting that sometimes a judge will have little alternative to weigh the possibilities of competing claims and the likely impact on children if that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put into issue.
But what about family violence, where such violence usually takes place in private without any witnesses? Such an issue was dealt with in Salah & Salah [2016] FamCAFC 100 where the Court said, serious allegations cannot be ignored at interim hearings simply because they have been put in issue. To suggest corroboration or objective evidence is required is an error. Family violence often takes place in private in circumstances where no corroboration is available.
Most recently, the Court again was asked to revisit the principles for making findings of fact at interim hearings in the case of Jagic & Mattias [2023] FedCFamC1A 57.
This was an appeal by a Mother against a finding of fact made at an interim hearing that she had physically assaulted one of the children, despite the criminal prosecution still pending. At the interim hearing, the Mother exercised her right to silence and did not respond to the allegations made by the Father about the assault. Accordingly, orders were made for the children to live with the Father instead of the Mother.
In dismissing the appeal the Court said:
“Such facts [the alleged assault] were certainly not “disputed” before the primary judge because the mother did not give any contradictory account. Her assertion within this ground that the evidence was “disputed” is simply false. The mother only said this in her affidavit:
67. I intend to vigorously defend the allegations in the ADVO.”
The mother’s voluntary silence on the issue of her alleged assault of the middle child in the civil proceedings permitted the primary judge to more easily make findings and draw available inferences against her from the unchallenged evidence led by the father…
The mother’s unqualified contention that factual findings cannot be made in interim proceedings is rejected. Findings of fact can always safely be made on uncontested evidence, though it is well established that findings made in interlocutory proceedings should be circumspect…. Certain provisions of the Act actually require a judge to react to credible evidence of risks of harm to which children might be exposed and against which they require protection, thereby making findings about such risks indispensable.“
Therefore, it is very important to at least deny the allegations in an affidavit rather than simply say nothing to protect your evidence in parallel criminal proceedings.
Ultimately the Court tends to take a conservative approach at the interim stage and will often put in temporary safeguards on a protective basis. Having legal representation at interim hearings and in contested family law litigation is essential. If you have a parenting dispute or other family law matter, please contact our office on (02) 4944 3322 to make an appointment with Hayden Carr.
