NSW Why is Proof Not Required in Family Law Court?

[Old Pop]

1st up....I'm the very proud, but worried grandpa...Hi.

I do have questions, but for now I'll just ask this one before going on to read even my posts on this site..

For the last 12 months, I've been doing heaps of reading and researching on the net for any and all info possible in regards to Family Law Court and custody of children. One thing that keeps popping up, and experienced 1st hand in our situation is...why can accusations be made in FLC, but no proof is required?

 

[sammy01]

It ain't criminal court. Criminal court works on guilt or innocent. Family court works on best interest of the kids... So a whole lot of different rules.

That said - once someone makes accusations, they get tested. So, for example, mum accuses dad of abusing kids. The courts will look into it via a family report, psychologist, etc. If the court is satisfied mum is lying, then the mum's credibility goes through the floor. But the accusations need to be investigated to protect the kids...

So the worst thing about family law is that false accusations kind of go unpunished, but the magistrate will be well upset that someone has tried to manipulate the system to keep a good person away from a kid who clearly the good person has a positive relationship with.

Now old pop - the legislation protects grandparents, too.

So to answer your question:

"One thing that keeps popping up, and experienced 1st hand in our situation is...why can accusations be made in FLC, but no proof is required?"

Nope accusations get tested. When found to be wrong, they are dismissed. So really, the question should be - why isn't there a punishment for making false accusations? Bloody good question.

I suppose the answer is lame - but it is so that accusers of real abuse don't feel threatened to step forward because they are scared of a negative consequence if the abuser manages to convince the courts of their innocence (even if they are guilty).

Old man - I liked the old ways - innocent till guilty and a preference for letting guilty men go free rather than risking putting an innocent man away due to flawed evidence.

I'm hoping you get a good result soon.

 

[MartyK]

. One thing that keeps popping up, and experienced 1st hand in our situation is...why can accusations be made in FLC, but no proof is required?

Evidence is required in order to substantiate allegations and for certain types of allegations, strong evidence is needed, as principles from case law can make it far more difficult (even for those allegations which might be true) to be substantiated.

Unfortunately the present system, particularly in the interim period, is ill equip to investigate allegations properly and as such anyone falsely accused can find themselves subject to err on the side of caution orders. Certainly not ideal.

False allegations and false denials are certainly an issue in the Family Courts and the adversarial nature can fuel further conflict, tensions and mask the truth. IMO in most cases there is the applicants "truth", the respondents "truth", and the real truth being somewhere in the middle.

The Court can, and does at times, reduce time for a parent or reverse the residence of children if allegations made are false and misleading. There are many factors to take into consideration however when determining a case, none of which is simple. Family Law is very complex.

 

[Old Pop]

I apologise if at any time I seem a bit vague, or crucial info is missing for informed replies, but I'm trying to not give away too much of our defence in case the other sees this, and then in a position of 'forewarned', but please do ask any question you feel you need an answer to, and I'll do my best to answer

The accusations my child is making against the ex are concrete, but as an example of how the ex is trying to throw the case back onto my child as being an unfit parent is, one of the 'claims' is that my child has been on suicide watch!

This can be proved to be a lie, for the simple fact that it never happened, and there's no way the ex can prove it did happen, and my child is willing to make any and all medical records available.

Now a claim of a parent having been on suicide watch, to me, is a very serious thing, and should be taken into consideration and quite serious when deciding a child's placement/contact with a parent, but the ex hasn't been made to prove/give evidence... This is why I'm so baffled.

This is just one of the fantasy claims made by the ex to the Court.

 

[AllForHer]

Hold on.

Evidence is not evidence until it is tested at trial. Thus, her allegations don't need to be proven until the final hearing. Until then, they're just that - allegations - and if she can't defend the allegation at trial, then it won't be given any weight.

All your offspring needs to do to force her to provide evidence is include a response in his affidavit starting that to the best of his knowledge, the child has not been on suicide watch as deposed by the other party.

If he doesn't contest her statement about suicide watch, then the Court will consider it an agreed fact.

 

[Old Pop]

Hold on.

Evidence is not evidence until it is tested at trial. Thus, her allegations don't need to be proven until the final hearing. Until then, they're just that - allegations - and if she can't defend the allegation at trial, then it won't be given any weight.

See, this is where I have a problem with all this 'no need to prove' business!

Let's just assume for the sake of argument that my child's ex is right, but neither parent has to prove true or false. Magistrate/Judge doesn't take it into consideration for the Interim Order, and lets my grandchild go off with this suicidal parent. I see that as placing the grandchild in a highly dangerous situation.

I know my child isn't suicidal - and never has been, but what if the accusation was made against the ex, and it was true? And the Magistrate/Judge ignores it - till going to Trial, but in the meantime, the ex takes a life along with my grandchild's.

Sorry, I don't know if that makes sense to anyone reading it. I'm a simple bloke without the greatest of education.

 

[MartyK]

To reduce any confusion for you Old Pop, parties file the evidence they wish to rely on in affidavit form. See Family Court website under Affidavit. While this evidence will not be tested until trial, there are, albeit quite limiting, opportunities to raise other issues prior to trial. Immediate concerns of child welfare should be raised by parties both in affidavit form and orally. Arguments can be supported by evidence attached as annexures to your affidavit.

Even if the Judge does decide that certain interim orders are necessary, the evidence will still need to be tested if the matter goes to trial.

 

[AllForHer]

Okay, so the way to provide proof for the purposes of interim hearings is to annexe documentation to the affidavit. For example:

On 1 January 2016, I received a text message from the mother advising that she had been placed on suicide watch, which caused me concern that the child would be unsafe in her care. A true and correct copy of the text message is annexed hereto and marked 'OP1'.​

Then you attach a screenshot of the text message and mark it 'OP1'.

If a party just says 'The mother was on suicide watch', the Court won't give that any weight because there's no proof other than the word of the deposing party.

Certainly, the Court can't test the evidence in interim hearings, but it can still be persuaded as best it can by the facts provided by the parties for the purposes of making interim orders.

 

[Old Pop]

If a party just says 'The mother was on suicide watch', the Court won't give that any weight because there's no proof other than the word of the deposing party.

Ok, I can understand the rationale of what you're saying....it's a 'he said, she said' thing.

Still, I can't understand the 'actions', that here's a person supposedly contemplated taking his/her life to the point they'd been put on suicide watch! To me, it's a life/death situation, and should be investigated before a child is potentially placed in a position that that child's life may be taken.
I don't know!!

I've been involved in criminal cases over the years - not saying mine, and they're (for the most part) straight forward...person accused - accuser and accused have their say and all evidence/proof submitted by both - decision made - end of story.

This verbal and counter verbal with any fairy tale you want - drag it out over numerous sessions - only make a decision based on words only without truly making sure a child(ren) is safe, way of doing things is completely illogical to me.

Thank you for your answers people, I do appreciate them.

I do have many other questions in regards to my child/grandchild's case, but still weighing up the pro's and con's of posting on a public forum.

Thank you

 

[sammy01]

Look, a parent who makes up stories to stop the other parent seeing their kid will get wind up with a very angry magistrate. They really don't like having their time wasted.

I understand your concerns about a public forum - But you can (and should) change details, gender, location... But keep the gist of the story.