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Unhelpful Affidavits and Interim Hearings - Part 1

Tuesday, 21 May 2013

At an interim hearing for urgent parenting orders, the importance of being able to rely upon one comprehensive and coherent affidavit by the party being represented can mean the difference between success and failure.

One affidavit dealing with the facts, and not simply allegations or generalisations, is what the Court needs at an interim hearing, where there is no opportunity to properly test the evidence through cross examination.

Multiple affidavits from the parties and their witnesses containing broad allegations against the other party, and containing no real factual evidence, are unhelpful and frustrating to the Court.

Unhelpful Affidavits in a Relocation Case

Chapa [2012] FMCAfam 1420 (18 December 2012), is a decision of Federal Magistrate (now Judge) Halligan in the Federal Magistrates Court (now the Federal Circuit Court) where both parents provided very “unhelpful” affidavits by themselves and their “witnesses” at an urgent interim hearing, frustrating the Judge and protracting the Interim Hearing.

His Honour Justice Halligan (as he is now) said:

“Most of the pertinent facts in this matter are in dispute. As is usual in an interim matter there has been no cross-examination of any witness. As is less usual in a matter of this kind, there has been a large number of affidavits not only by each of the parties themselves but also by supporting witnesses that has resulted in a significant protraction of this interim hearing without adding any real benefit or casting any greater light than might have come from one comprehensive and coherent affidavit from each party.”

In Chapa, at the time of separation the mother unilaterally moved and relocated from Sydney to Adelaide (her State of birth where her extended family lived) with two young children aged 6 and 3.

The mother alleged family violence and abuse of the children by the father the father.

The father applied for an order that the children and the mother return to western Sydney which is where they had lived together (reinstating and preserving the status quo until final hearing).  He also sought orders that the children live with him and spend time with the mother.

The father alleged that the mother was mentally unstable, and produced a suicide note written by her. He also alleged that she was guilty of child abuse.

Unhelpful Affidavits and Family Violence

With respect to the mother's allegations of family violence, if the Court accepted those allegations were true and there was a risk of it recurring, the Court would have proceeded upon the basis that there may be a risk of “abuse of the definition” of family violence.

The definition of family violence is found in subsection 4AB of the Family Law Act 1975.  That definition provides:

"(1) For the purposes of this Act, Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful."

The mother alleged, but provided no coherent evidence to prove, a pattern of violent and abusive behaviour by the father. These included allegations (with no evidence to substantiate them), of:

  • physical violence;
  • damage to property;
  • injury to animals;
  • verbal abuse, and
  • denigration.

All of these allegations (with one exception) were broad and generalised allegations by the mother.

His Honour made it quite clear in his judgment that:

“An allegation is not evidence of family violence.”

Subsection 4AB(3) of the Family Law Act 1975 indicates what it means to expose a child to family violence for the purpose of the definition of child abuse, and that section provides:

“(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

The mother gave evidence of one incident occurring at the time immediately prior to the final separation of the parties in October of that year, when she alleged that the father verbally abused her and placed his hands around her throat in front of one of the child.  She therefore alleged exposure of a child to family violence. His Honour found that that “evidence” was insufficient to prove child abuse on that occasion.

There were substantial, differing and denied allegations of conflicting allegations of family violence in the affidavits that were placed before the Court at the interim hearing.

On these conflicting allegations of family violence, Halligan FM said at para 24:

“ … as I have said these are interim proceedings and the Court is not, without cross-examination, entitled to simply find that these parties cannot be believed at all. Having said that, I note that there are difficulties with the evidence of both parties containing internal inconsistencies and a number of them are quite troubling because they go to significant matters. The inconsistencies arise both directly in relation to inconsistent statements and also inconsistencies apparent between the allegations and the consequent actions or inactions of the parties following those alleged incidents.”

Halligan FM went on to say at paras 26-31:

What concerns me in relation to the mother’s evidence is her total inaction to secure the safety of the children.”

His Honour was troubled by the fact the mother alleges a pattern of family violence, without giving evidence to support the allegations, but at no stage did she:

  • Remove the children from the place of danger,
  • Report the matters to anyone, and
  • Returned with the children to the father.

His Honour then stated:

“To say that I am troubled by the glaring inconsistency between the seriousness of the allegations each parent makes against the other and their total failure to act to secure the safety of these children would be a gross understatement. It is possible that the parties are exaggerating. It is possible they are simply lying. It is possible that they did not appreciate the need to afford these children a place of safety and therefore failed them at the most fundamental level in meeting their responsibilities as a parent.”

“Which it might be, at this stage, I cannot determine, but it leaves both parties, in my view, in a very poor light and the allegations are probably as telling against the party making the allegation as they are against the parent subject to the allegation.”

“In those circumstances, where each of these parties makes such serious allegations, where neither of them has taken steps in the past to protect these children from what must be an obvious serious risk of physical harm, it makes somewhat meaningless the second of the primary considerations which I am meant to give priority to, the need to protect children from physical or psychological harm. “

“Where neither parent apparently, if I am to accept their evidence is true, has bothered to do so in the past and I am left with the choice of leaving these children to a greater or lesser extent with each of the parents, it would seem I have no option available to me at the present time to protect these children from the risks that both parents allege that the children are subjected to with the other parent.”

Orders made in the absence of Helpful Affidavits

The end result in Chapra was that the mother, by default really, was allowed to remain living with the children in Adelaide.

His Honour concluded that if he was to order the mother to return to Sydney, he would be ordering the mother to return to a situation that she says she has fled in fear. She would also be forced to leave behind her family support in Adelaide and her other support mechanisms that she has begun to engage (a domestic violence service she contacted upon arriving in Adelaide).

Gary Mallett
Senior Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.

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Affidavits and Interim Hearings - Part 3

Tuesday, 9 July 2013

Drafting helpful Affidavits

The result in Chapa [2012] FMCAfam 1420 (18 December 2012) (see Part 1 of this Article) may have been very different if the father had provided one coherent and comprehensive affidavit by himself, setting out the facts and supporting evidence for his own case, and facts which provided evidence and support for his denials of the mother’s vast and vague allegations of family violence against him.