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Family Law

False allegations in the family court: How does a family court judge distinguish fact from fiction?

By August 21, 2017No Comments

By Gianna Huesch

We regularly see claims surface in the media that mothers are making false allegations in the family courts and disadvantaging fathers.  Political party One Nation and fathers’ rights groups argue it leads to fathers losing access to their children, suicides, domestic violence and even murder.  At one point Pauline Hanson declared that women make “frivolous claims” of family violence to obtain an advantage in the family courts.

But do false allegations really get through the system that easily? Or are our judges actually pretty good at sniffing out situations where false allegations are being made (and perjury being committed by one party)?

In the recent case of Tothill & Crowther (court-appointed pseudonyms), a mother lost primary custody of her six year old daughter after the judge found it suspicious that the mother had only started making allegations of historical abuse against the father after it became clear that the little girl was warming to her dad at his supervised visits.

In the case, the mother made allegations of sexual and physical abuse by the father but those allegations were not substantiated. The judgment states that “all parties concede there are no issues of unacceptable risk in either household”.

The judge didn’t buy any of the mother’s testimony, preferring the father’s entire version.  The judge criticised “the mother’s unwillingness to encourage the child’s relationship with her father” and found she had “deliberately thwarted” the father’s efforts to see his daughter, in a case that sounds like classic parental alienation..

The couple had already been in bitter litigation for several years.  There was still so much animosity between the parents that shared parental responsibility was deemed unworkable.  Instead, sole parental responsibility was granted to the parent who would be having primary custody, namely the father.

Digital evidence contradicted the mother on many points.  For example, the judge said it was noteworthy that the mother had texted the father seeking to continue the relationship, including messaging him, “I need sex!” not long after, according to her now, he had sexually assaulted her.  The mother had never sought help or reported any incident, and a later investigation by authorities did not substantiate the woman’s claims. In fact, it only uncovered more evidence which contradicted what the mother was stating.

Most tellingly, according to the judge, was that the mother had previously had no qualms about agreeing to orders that the father spend increasing and extensive time, including overnights, with the daughter–at the same time as she says she believed there was sexual abuse going on.

The father was successful in the case despite having “spent limited time with the child since she was born” because he had “consistently sought to spend time with the child”.  In contrast, the mother had “consistently failed to facilitate the father’s time with the child”.

The judge ordered she now lives with the father and spend substantial and significant time with her mother, explaining it was the only way the little girl could grow up enjoying “a meaningful relationship with both of her parents”.

Ultimately, the judge has to make the call as to whether someone is telling the truth or not in the courtroom. And in a society based on the rule of law, we have to trust that our judiciary is capable of correctly calling it.

You can find the (very lengthy) judgment here: http://www.austlii.edu.au/au/cases/cth/family_ct/2017/460.html

Do you need assistance with a family law matter? Please contact Canberra family lawyers Cristina Huesch, Sharla Stevens or Angela Li here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.

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